Aviles v. Barnhill ( 2023 )

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DOMINIQUE AVILES ET AL. v. REGINA
BARNHILL ET AL.
(AC 44587)
Prescott, Seeley and Sheldon, Js.
Syllabus
The plaintiffs sought to recover damages from the defendant landlord, H
Co., for injuries they sustained as a result of H Co.’s alleged negligence
with respect to an off premises attack by a dog. H Co. owned a multifam-
ily home, which it leased to the defendant B. The defendants M, G, and
B were the owners and/or keepers of the dog, which lived with B. The
dog ran from H Co.’s premises to the plaintiffs’ premises and attacked
the plaintiffs, severely injuring them. The trial court granted H Co.’s
motion for summary judgment, reasoning that, because it was undis-
puted that the incident occurred off H Co.’s premises and because
Connecticut’s common law provides that a lessor owes no duty of care
beyond its premises, H Co. owed no duty to the plaintiffs. On the plain-
tiffs’ appeal to this court, held:
1. The trial court correctly concluded that H Co. did not owe the plaintiffs
a duty of care under a theory of premises liability because the dog attack
did not occur on property that it controlled; moreover, the plaintiffs’
argument that our Supreme Court’s decision in Giacalone v. Housing
Authority (306 Conn. 399) broadened the scope of a landlord’s duty
under a theory of premises liability was unavailing because their argu-
ment was based on a misreading of the record in that case and because
the court in Giacalone did not expand a property owner’s duty beyond
the property’s boundary line.
2. This court rejected the plaintiffs’ request that this court adopt a provision
(§ 379A) of the Restatement (Second) of Torts, which, if its elements
were met, would extend liability to H Co. regardless of where the dog
attack took place: our appellate precedent makes clear that a landlord
does not owe a duty of care to someone who sustains injuries from a
dog if the attack occurs beyond the landlord’s property line in an area
over which the landlord has no control; moreover, although neither our
Supreme Court nor this court has expressly declined to adopt § 379A,
both courts have adhered in dog bite cases to traditional principles of
premises liability, which run counter to § 379A, and, thus, adopting
§ 379A would require this court to depart from appellate precedent,
which it was not free to do.
Argued September 19, 2022—officially released January 31, 2023
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, and for other relief, brought
to the Superior Court in the judicial district of New
London, where the named defendant et al. were
defaulted for failure to appear; thereafter, the court,
Calmar, J., granted the motion of the defendant H-
Squared Construction, LLC, for summary judgment and
rendered judgment thereon, from which the plaintiffs
appealed to this court. Affirmed.
James M. Harrington, for the appellants (plaintiffs).
Joseph M. Busher, Jr., for the appellee (defendant
H-Squared Construction, LLC).
Opinion
SEELEY, J. The plaintiffs, Dominique Aviles, individu-
ally and on behalf of her minor child, Xavier Bauza,1
appeal from the summary judgment rendered by the
trial court in favor of the defendant landlord, H-Squared
Construction, LLC, on two counts of the plaintiffs’ com-
plaint asserting negligence against the defendant arising
from an off premises attack by a dog owned by one of
its tenants.2 On appeal,3 the plaintiffs argue that the
court incorrectly determined that the defendant could
not be held liable as a matter of law because, contrary
to the court’s conclusion, Connecticut case law pro-
vides that a landlord has a duty of care under a premises
liability theory to use reasonable care to prevent injuries
to third parties from known vicious dogs housed on
the property by a tenant, including, in certain circum-
stances, from a dog attack occurring off of the land-
lord’s property. The plaintiffs also argue that this court
should adopt § 379A of the Restatement (Second) of
Torts (§ 379A),4 which, if its elements are met, would
extend liability to the defendant regardless of where
the attack took place. We disagree with the plaintiffs’
first claim and conclude that, within the specific context
of off premises dog attacks, landlords do not owe a
duty of care to injured third parties under a theory of
premises liability. We also decline to adopt § 379A for
this particular context because we determine that doing
so would be contrary to our appellate precedent.
Accordingly, we affirm the judgment of the trial court.
The record before the court, which we view in the
light most favorable to the plaintiffs as the nonmoving
parties, reveals the following facts and procedural his-
tory. The defendant is the owner and landlord of 151-153
Golden Street, a multifamily home in Norwich. Regina
Barnhill leased 151-153 Golden Street from the defen-
dant at all relevant times. Barnhill, along with Keith A.
McGraw and Michael J. Gomez, were the owners and/
or keepers of a dog named ‘‘ ‘Yank’ ’’ that lived with
Barnhill at 151-153 Golden Street. On June 16, 2016,
Yank ran unleashed from 151-153 Golden Street to 22
Page Street, the plaintiffs’ residence, and attacked and
severely injured the plaintiffs.5 The two residences,151-
153 Golden Street, where the dog was housed, and 22
Page Street, where the plaintiffs were injured, have
adjoining backyards.
The plaintiffs commenced this action on April 30,
2018. The complaint, dated April 19, 2018, contained
fourteen counts. Counts thirteen and fourteen were
brought against the defendant and sounded in negli-
gence. The complaint alleges that the plaintiffs’ injuries
were the result of the negligence and carelessness of
the defendant because it knew or should have known
of the existence of the dangerous condition posed by
Yank and failed to secure the property and prevent
Yank’s escape, advise Yank’s alleged owners and/or
keepers to remove Yank from the premises, inspect the
premises periodically to ensure it was safe and posed
no danger to the public, take adequate measures to
remedy and/or eliminate the dangerous condition posed
by Yank, and/or warn the plaintiffs of the dangerous
condition.
On June 28, 2018, the defendant filed a motion for
summary judgment as to the thirteenth and fourteenth
counts of the plaintiff’s complaint. The defendant
argued that it was entitled to summary judgment as a
matter of law because, consistent with appellate prece-
dent, it owed no duty to the plaintiffs under a premises
liability theory because the attack did not take place
on the defendant’s premises. The defendant also argued
that it was entitled to summary judgment because the
defendant was not aware that Yank lived on the prem-
ises, and it had no knowledge that Yank was dangerous.
The plaintiffs filed a memorandum of law in opposi-
tion to the motion for summary judgment in which
they conceded that the incident did not occur on the
defendant’s premises, 151-153 Golden Street. The plain-
tiffs argued, nonetheless, that summary judgment was
improper because § 379A was a ‘‘notable exception’’ to
premises liability law and a genuine issue of material
fact existed as to whether its prongs were met. Specifi-
cally, the plaintiffs maintained that a genuine issue of
fact existed as to whether the defendant knew that
Yank resided at the property. Although two members
of the defendant, John Hardy and Derek Hatch, asserted
in their affidavits submitted in support of the defen-
dant’s motion for summary judgment that they were
not aware of Yank’s presence, the plaintiffs argued that
there was obvious evidence demonstrating that Yank
lived there, and that, pursuant to comment (b) to § 379A,
‘‘knowledge may be . . . found by implication from all
of the circumstances existing at the time of the lease.’’
2 Restatement (Second), Torts § 379A, comment (b),
pp. 283–84 (1965). Further, the plaintiffs argued that,
even if the defendant was not initially aware of Yank’s
existence, it certainly was by the time of the successive
lease renewals between the parties, and, because com-
ment (g) to § 837 of the Restatement (Second) of Torts6
provides in relevant part that, ‘‘[i]f at the time that the
lessor renews the lease [it] knows that activities are
being carried on . . . [it] is liable for the continuance
of the interference after the renewal,’’ the first prong of
§ 379A was thereby satisfied. 4 Restatement (Second),
Torts § 837, comment (g), pp. 153–54 (1979). Thus, the
plaintiffs argued before the trial court that, because
this genuine issue of material fact existed, summary
judgment should be denied.
The court, Calmar, J., initially denied the defendant’s
motion. The court reasoned that, although generally a
landlord’s duty applies only to areas of the premises
over which the landlord retains control, § 379A is ‘‘an
exception to the general rule . . . .’’ Because § 379A
requires that the landlord consent to the dog’s activity
on the premises or know of the dog’s vicious propensit-
ies, both of which were disputed in this case, the court
determined that a genuine issue of material fact existed
and, therefore, denied the defendant’s motion.
Thereafter, the defendant filed a motion for reconsid-
eration in which it argued that the court’s reliance on
§ 379A was misplaced because our appellate courts had
not adopted it and, moreover, § 379A is inconsistent
with Connecticut’s common law. Following a hearing
on the motion, the court vacated its initial order and
granted the defendant’s motion for summary judgment.
In its memorandum of decision, the court explained in
relevant part: ‘‘Although [the] court was initially per-
suaded by the belief that appellate courts previously
had applied § 379A and/or would apply § 379A given
the right factual scenario and if proper evidence was
presented, it is clear upon closer examination and
review that the appellate courts have not yet adopted
[§ 379A] and Connecticut’s common-law precedent
does not support this exception.’’ The court further
reasoned that, because Connecticut’s common law
unequivocally provides that a lessor owes no duty of
care beyond its premises, and because it is undisputed
that the incident in this case occurred off the defen-
dant’s premises, the defendant owed no duty to the
plaintiffs. Accordingly, the court determined that the
defendant met its burden of demonstrating that there
was no genuine issue of material fact, and granted the
motion for summary judgment in favor of the defendant
on counts thirteen and fourteen of the plaintiff’s com-
plaint. This appeal followed.
The plaintiffs claim on appeal that the court incor-
rectly concluded, as a matter of law, that the defendant
did not have a duty to prevent its tenant’s dog from
harming a nontenant beyond the boundaries of its prop-
erty, an area over which the defendant did not exercise
control. The plaintiffs specifically argue that in Giaca-
lone v. Housing Authority, 306 Conn. 399, 51 A.3d 352(2012), our Supreme Court ‘‘broadened the scope of a
landlord’s duty under a premises theory of liability’’ by
recognizing landlord liability for a tenant’s dog attack
even when the attack did not occur within the bound-
aries of the property on which the dog lived and over
which the landlord exercised control. Additionally,
although conceding that § 379A has not been explicitly
adopted by Connecticut courts, the plaintiffs argue that
this court should adopt § 379A because it ‘‘strikes a
reasonable balance between concerns over the expan-
sion of landlord liability and the need to hold account-
able those landlords who have knowledge of dangerous
conditions on their property and who fail to act.’’
The defendant argues that the court properly ren-
dered summary judgment in its favor because it is undis-
puted that the underlying incident took place off the
defendant’s property and our case law repeatedly has
held that a lessor’s duty does not extend to land outside
of its control. The defendant further argues that § 379A
is inconsistent with our case law and, therefore, we
should decline to adopt it.7 We agree with the defendant.
Before turning to our analysis, we must first set forth
the standard of review that governs this appeal. ‘‘Our
standard of review with respect to a court’s ruling on
a motion for summary judgment is well settled. Practice
Book § [17-49] provides that summary judgment shall
be rendered forthwith if the pleadings, affidavits, and
any other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. . . . In decid-
ing a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party. . . . The party seeking summary
judgment has the burden of showing the absence of
any genuine issue [of] material facts which, under appli-
cable principles of substantive law, entitle him to a
judgment as a matter of law . . . and the party oppos-
ing such a motion must provide an evidentiary founda-
tion to demonstrate the existence of a genuine issue of
material fact. . . .
‘‘[I]ssue-finding, rather than issue-determination, is
the key to the procedure. . . . [T]he trial court does
not sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record. . . . A material fact . . . [is] a fact
which will make a difference in the result of the case.’’
(Citation omitted; internal quotation marks omitted.)
Adams v. Aircraft Spruce & Specialty Co., 215 Conn.
App. 428, 440–41, 283 A.3d 42, cert. denied, 345 Conn.
970, A.3d (2022). Furthermore, although
‘‘[i]ssues of negligence are ordinarily not susceptible of
summary adjudication but should be resolved by trial
in the ordinary manner . . . [t]he issue of whether a
defendant owes a duty of care is an appropriate matter
for summary judgment because the question is one of
law.’’ (Internal quotation marks omitted.) Goody v.
Bedard, 200 Conn. App. 621, 631, 241 A.3d 163 (2020);
see also Gonzalez v. O & G Industries, Inc., 341 Conn.
644, 680, 267 A.3d 766 (2021) (‘‘[t]he existence of a legal
duty is a question of law over which we exercise plenary
review’’ (internal quotation marks omitted)).
I
The plaintiffs first claim that the court incorrectly
concluded, as a matter of law, that the defendant did
not owe them a duty of care because the dog attack
did not occur on property controlled by the defendant.
Specifically, they argue that the scope of landlord prem-
ises liability was expanded by our Supreme Court in
Giacalone v. Housing Authority, supra, 306 Conn. 399.
Conversely, the defendant argues that the court cor-
rectly determined that it owed no duty of care to the
plaintiffs because appellate case law repeatedly has
held that a landlord’s duty does not extend to uncon-
trolled land beyond the landlord’s premises. According
to the defendant, our Supreme Court did not expand
that principle in Giacalone, rather, the court merely
reaffirmed it. We agree with the defendant.
We begin our analysis with a discussion of the rele-
vant principles of negligence and premises liability. ‘‘In
a negligence action, the plaintiff must meet all of the
essential elements of the tort in order to prevail. These
elements are: duty; breach of that duty; causation; and
actual injury. . . . [T]he existence of a duty of care is
a prerequisite to a finding of negligence . . . . The
existence of a duty is a question of law and only if such
a duty is found to exist does the trier of fact then
determine whether the defendant [breached] that duty
in the particular situation at hand. . . . If a court deter-
mines, as a matter of law, that a defendant owes no
duty to a plaintiff, the plaintiff cannot recover in negli-
gence from the defendant. . . .
‘‘The general rule is that a landlord has a duty reason-
ably to maintain property over which he exercises con-
trol. . . . That duty serves to protect entrants (invitees,
licensees, trespassers) and tenants. . . . The duty does
not, however, extend to uncontrolled land such as
neighboring property or public lands.’’ (Citations omit-
ted; internal quotation marks omitted.) Charles v.
Mitchell, 158 Conn. App. 98, 108–109, 118 A.3d 149(2015); see also Stokes v. Lyddy, 75 Conn. App. 252,
260, 815 A.2d 263 (2003).
In Stokes, this court, as a matter of first impression,
held that a landlord does not owe a common-law duty
to nontenants who, while outside the boundaries of the
premises, are bitten by a tenant’s dog. Stokes v. Lyddy,
supra, 75 Conn. App. 253–54. In that case, a dog owned
by the landlord’s tenant escaped the premises and
attacked the plaintiff as she walked along a nearby
public sidewalk. Id., 254. The attack did not occur on
any portion or common area of the landlord’s property.
Id. On appeal, the plaintiff argued, inter alia, that the
landlord should be held liable because the landlord had
a duty under general principles of premises liability to
maintain the nearby public property in a reasonably
safe manner. Id., 259–60. This court disagreed and deter-
mined that, pursuant to traditional principles of prem-
ises liability, a landlord’s duty does not extend to uncon-
trolled land such as a public sidewalk and, therefore,
the landlord could not be held liable under a theory of
premises liability. Id., 260–62.
This court addressed the issue again in Charles v.
Mitchell, supra, 158 Conn. App. 98. In Charles, as in
Stokes, the tenant’s dog escaped the premises and
attacked the plaintiff while she was on a public street.
Id., 101. On appeal, the plaintiff argued that a landlord
should be held liable for an off premises dog attack ‘‘so
long as the resulting harm was reasonably foreseeable.’’
Id., 110. This court disagreed, and, citing to Stokes,
reaffirmed the traditional principle that a landlord’s
duty does not extend to uncontrolled land and, there-
fore, a landlord cannot be held liable for injuries sus-
tained from an off premises dog attack. Id., 109–10.
In Giacalone, our Supreme Court was asked to
resolve the sole issue of whether a landlord may be
held liable under the general theory of premises liability
for a dog bite injury, or whether the landlord must have
direct care of, or control over, the dog and, therefore,
fall within the purview of the dog bite statute to be
liable. Giacalone v. Housing Authority, supra, 306
Conn. 401. The court determined that a claim brought
pursuant to the dog bite statute, General Statutes § 22-
357, and a claim brought under a premises liability the-
ory are two independent and separate causes of action,
and a landlord can be held liable under the ‘‘ordinary—
indeed, hoary—principles of common-law liability
. . . .’’ Id., 407. The court reasoned that it is a matter
of well settled common law that a landlord owes a
duty to alleviate dangerous conditions in areas of the
premises over which it retains control, and that ‘‘a
vicious dog may qualify as a dangerous condition under
the traditional, common use of this term because this
court has long recognized that a landlord’s common-
law obligation to alleviate known dangers exists inde-
pendent of the specific source of that danger.’’ Id., 408.
Thus, the court concluded that a landlord ‘‘must take
reasonable steps to alleviate the dangerous condition
created by the presence of a dog with known vicious
tendencies in the common area of the property’’ over
which the landlord retains control, and that ‘‘[w]hat
defines the landlord’s duty is the obligation to take
reasonable measures to ensure that the space over
which it exercises dominion is safe from dangers, and
a landlord may incur liability by failing to do so.’’
(Emphasis in original.) Id.
Despite the holdings in Stokes and Charles, and of
the undisputed fact that, in the present case, the inci-
dent took place off the premises, the plaintiffs claim
that the defendant can be held liable under a theory
of premises liability because of our Supreme Court’s
decision in Giacalone. They argue, on the basis of their
reading of Giacalone, that our Supreme Court broad-
ened the scope of premises liability in that case by
determining that the landlord was liable even though
the dog attack occurred outside of the premises on
which the dog was housed. The plaintiffs contend that
Giacalone stands for the proposition that ‘‘a property
owner’s duty under premises liability . . . does not
evaporate if that harm crosses the property’s boundary
line.’’ The plaintiffs additionally argue that the court’s
failure to discuss in detail the location of the dog attack
further supports their contention that the location of
the harm is not dispositive in determining whether a
landlord owes a duty under a theory of premises liabil-
ity.
The plaintiffs’ argument fails for two reasons. First,
it rests on a misunderstanding of the facts of Giacalone.
In their appellate brief, the plaintiffs represented that,
in Giacalone, ‘‘the plaintiff was injured at her residence
when she was attacked by her neighbor’s dog who had
escaped from the home the dog resided in,’’ and that
the dog had ‘‘travelled around 528 feet down the block
and across an intersection to reach the plaintiff’s resi-
dence where he attacked her in her yard.’’ However,
contrary to the plaintiffs’ assertion, the dog attack in
Giacalone did not occur at the plaintiff’s residence;
rather, it occurred ‘‘at or near’’ the dog owner’s resi-
dence. Giacalone v. Housing Authority, supra, 306
Conn. 402. The plaintiffs cite to our Supreme Court’s
decision in Giacalone as support for their assertion
regarding the location of the attack; the specific page
of the Giacalone decision cited by the plaintiffs in their
appellate brief, however, states: ‘‘The complaint alleges
that the plaintiff, a tenant of the defendant’s residing
at 44 Louis Circle in Wallingford, sustained injuries
and other harm after being bitten by a dog at or near
14 Tremper Drive in Wallingford, a nearby property of
which the defendant is also the landlord.’’ (Emphasis
added.) Id. Thus, it is clear that the plaintiff in Giacalone
was not bitten at her residence but, rather, ‘‘at or near
14 Tremper Drive . . . .’’ Id. Although it is not explicitly
evident from our Supreme Court’s decision who resided
at 14 Tremper Drive, this court’s decision, the trial
court’s decision on the defendant’s motion to strike,
and the original complaint in Giacalone established that
the dog owner resided there. Giacalone v. Housing
Authority, 122 Conn. App. 120, 121–22, 998 A.2d 222(2010), aff’d, 306 Conn. 399, 51 A.3 352 (2012); Giacalone
v. Housing Authority, Superior Court, judicial district
of New Haven, Docket No. CV-XX-XXXXXXX-S (December
19, 2008) (46 Conn. L. Rptr. 829, 829), rev’d, 122 Conn.
App. 120, 998 A.2d 222 (2010). The plaintiffs in the
present case may have mistakenly believed that 14
Tremper Drive was the plaintiff’s residence in Giaca-
lone and, as a result, determined the distance between
the properties to reach their conclusion that the dog
in that case travelled ‘‘528 feet’’ to the plaintiff’s resi-
dence and attacked her in her yard. This interpretation
of the facts in Giacalone, however, is incorrect. The
plaintiff in Giacalone was, in fact, bitten ‘‘at or near’’
the dog owner’s residence, that is, property owned and
controlled by the landlord. Giacalone v. Housing
Authority, supra, 306 Conn. 402. Therefore, the plain-
tiffs’ argument that Giacalone broadened the scope of
premises liability is based on a misreading of the record
in that case.
Second, the plaintiffs’ argument that Giacalone sup-
ports the notion that ‘‘a property owner’s duty under
premises liability . . . does not evaporate if that harm
crosses the property’s boundary line,’’ is contrary to
our Supreme Court’s analysis. As previously discussed
in this opinion, in Giacalone, our Supreme Court held
that ‘‘a landlord, in exercising the closely analogous
duty to alleviate dangerous conditions in areas of a
premises over which it retains control, must take rea-
sonable steps to alleviate the dangerous condition cre-
ated by the presence of a dog with known vicious tend-
encies in the common areas of the property.’’
(Emphasis added.) Giacalone v. Housing Authority,
supra, 306 Conn. 408. The court further emphasized
that ‘‘[w]hat defines the landlord’s duty is the obligation
to take reasonable measures to ensure that the space
over which it exercises dominion is safe from dangers,
and a landlord may incur liability by failing to do so.’’
(Emphasis in original.) Id. The court made clear that
it is the property lines, and the potential harms within
them, that define a landlord’s duty. Thus, contrary to
the plaintiffs’ first claim, Giacalone did not expand a
property owner’s duty beyond the property’s bound-
ary line.
For these reasons, we conclude that, within the lim-
ited context of an off premises dog attack, a landlord
does not owe a duty of care to injured third parties
under a theory of premises liability and, therefore, we
reject the plaintiffs’ first claim on appeal.
II
The plaintiffs next claim that this court should adopt
§ 379A and, consequently, hold that a genuine issue of
material fact exists as to whether its prongs are met.
As previously noted in this opinion, § 379A provides:
‘‘A lessor of land is subject to liability for physical harm
to persons outside of the land caused by activities of
the lessee or others on the land after the lessor transfers
possession if, but only if, (a) the lessor at the time of
the lease consented to such activity or knew that it
would be carried on, and (b) the lessor knew or had
reason to know that it would unavoidably involve such
an unreasonable risk, or that special precautions neces-
sary to safety would not be taken.’’ 2 Restatement (Sec-
ond), supra, § 379A, p. 283. The plaintiffs argue that we
should adopt § 379A because it ‘‘strikes a reasonable
balance between concerns over the expansion of land-
lord liability and the need to hold [landlords] account-
able . . . .’’ The defendant counters that this court
should not adopt § 379A because it is inconsistent with
precedent from both our Supreme Court and this court.
We agree with the defendant.
‘‘It is axiomatic that, as an intermediate appellate
tribunal, this court is not free to depart from or modify
the precedent of our Supreme Court.’’ Davis v. Davis-
Henriques, 163 Conn. App. 301, 312, 135 A.3d 1247(2016); see also State v. Gonzalez, 214 Conn. App. 511,
522–23 n.10, 281 A.3d 501 (‘‘[W]e are not at liberty to
overrule or discard the decisions of our Supreme Court
but are bound by them. . . . [I]t is not within our prov-
ince to reevaluate or replace those decisions.’’ (Internal
quotation marks omitted.)), cert. denied, 345 Conn. 967,
285 A.3d 736 (2022). Furthermore, it is well established
that ‘‘one panel of this court cannot overrule the prece-
dent established by a previous panel’s holding. . . . As
we have often stated, this court’s policy dictates that
one panel should not, on its own, [overrule] the ruling
of a previous panel. [That] may be accomplished only
if the appeal is heard en banc. . . . Prudence, then
dictates that this panel decline to revisit such requests.’’
(Internal quotation marks omitted.) State v. Gonzalez,
supra, 524. Our appellate precedent makes clear that a
landlord does not owe a duty of care to someone who
sustains injuries from a dog if the attack occurs in an
area over which the landlord has no control. Although
neither our Supreme Court nor this court expressly has
declined to adopt § 379A, as discussed in part I of this
opinion, both courts have adhered to traditional princi-
ples of premises liability, and those principles run
counter to § 379A.
In Giacalone, our Supreme Court affirmed that a land-
lord’s common-law duty under a theory of premises
liability is applicable to ‘‘the dangerous condition cre-
ated by the presence of a dog with known vicious tend-
encies,’’ and that the duty is defined by the space over
which the landlord exercises control. Giacalone v.
Housing Authority, supra, 306 Conn. 408. This court
also has abided by these traditional principles of prem-
ises liability for dog bite cases in Stokes, Charles, and,
most recently, in Raczkowski v. McFarlane, 195 Conn.
App. 402, 225 A.3d 305 (2020). In Raczkowski, the plain-
tiff was walking in front of a residence when a dog ran
out and bit her. Id., 405. Even though the incident took
place partly on the defendant landlord’s property, this
court nonetheless concluded that the landlord did not
owe a duty to the plaintiff under a theory of premises
liability because the tenant, the dog owner, had exclu-
sive possession of the property under the unique cir-
cumstances of that case. Id., 415. Therefore, we con-
cluded that the landlord did not have possession or
control of the property. Id. Thus, Raczkowski demon-
strates this court’s continued pattern of strict compli-
ance with traditional principles of premises liability.
These principles are inconsistent with the scope of lia-
bility that § 379A imposes on a landlord and, thus,
adopting it would require us to depart from our appel-
late precedent, which we are not free to do.8
At oral argument before this court, the plaintiffs’
counsel claimed that we can adopt § 379A despite this
precedent, but we are not persuaded. The plaintiffs’
counsel specifically reasoned that we are not prevented
from adopting § 379A by Stokes because, in that case,
we analyzed § 379A in ‘‘quite exhaustive detail.’’ The
plaintiffs further argue in their appellate brief that, in
Stokes, we only ‘‘stopped short’’ of adopting § 379A. The
plaintiffs are correct that this court discussed § 379A
in Stokes. Stokes v. Lyddy, supra, 75 Conn. App. 263.
Contrary to the plaintiffs’ characterization, however,
we did not merely stop short of adopting § 379A in
Stokes. Rather, without determining whether § 379A
should be adopted, we rejected the plaintiff’s argument
in Stokes because the plaintiff in that case had failed
to provide any evidence to support the first prong of
§ 379A, that is, that the lessor at the inception of the
lease consented to the dog’s presence. Id., 264–65. In
fact, the Stokes decision contained the following lan-
guage that suggests that this court would have declined
to adopt § 379A even if the plaintiff had provided evi-
dence to support both prongs: ‘‘Another public policy
concern that influences our decision is our desire to
prevent the possible flood of litigation that might result
from adopting the rule proposed by the plaintiff. If land-
lords were held liable for off premises injuries caused
by their tenants’ dogs, landlords would become the
insurers of the general public without end. That should
not be encouraged.’’9 Id., 272.
The plaintiffs’ counsel also maintained at oral argu-
ment before this court that this court is not prevented
from adopting § 379A by Giacalone because it is factu-
ally distinguishable, or by Charles because, in that case,
although the plaintiff asserted a claim under § 379A,
the claim was deemed abandoned. These observations,
although accurate, do not provide support for the plain-
tiffs’ argument that this court should adopt § 379A. The
plaintiffs ignore that, in both cases, our appellate courts
adhered to traditional premises liability law with
respect to a landlord’s liability for dog attacks, and that
this court has continued to do so. It is this pattern of
strict adherence that requires this court to reject the
plaintiffs’ invitation to adopt § 379A.
In sum, our appellate precedent continuously has
maintained that premises liability does not extend
beyond the property line within the specific context of
off premises dog attacks. We conclude that we cannot
depart from that precedent and, therefore, we reject the
plaintiffs’ request to adopt § 379A of the Restatement
(Second) of Torts.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘It is well established that a child may bring a civil action only by a
guardian or next friend, whose responsibility it is to ensure that the interests
of the ward are well represented.’’ (Internal quotation marks omitted.) Har-
ris v. Neale, 197 Conn. App. 147, 149 n.1, 231 A.3d 357 (2020).
2
Because H-Squared Construction, LLC, is the sole defendant participating
in the present appeal, we refer to it throughout this opinion as the defendant
and to the other parties by name. The plaintiffs’ complaint also included
claims against three additional defendants, Regina Barnhill, Keith A.
McGraw, and Michael J. Gomez. The remaining twelve counts of the plain-
tiffs’ fourteen count complaint allege that Barnhill, McGraw, and Gomez
are the owners and/or keepers of the dog and that they violated General
Statutes § 22-357, which is commonly known as the dog bite statute. This
statute ‘‘imposes strict liability on the ‘owner or keeper’ of a dog for harm
caused by the dog, with limited exceptions.’’ Giacalone v. Housing Author-
ity, 306 Conn. 399, 405, 51 A.3d 352 (2012). For a plaintiff to assert a claim
pursuant to § 22-357 successfully against a defendant, the plaintiff must
prove that the defendant is the ‘‘owner or keeper’’ of the dog. Auster v.
Norwalk United Methodist Church, 286 Conn. 152, 153–54, 943 A.2d 391(2008). Ownership of the premises where a dog lives ‘‘unaccompanied by
any evidence of caretaking of the dog or actual control over its actions’’ is
insufficient to hold a property owner or landlord liable under this statute.
(Internal quotation marks omitted.) Id., 163.
3
Counts thirteen and fourteen were the only counts of the complaint
brought against the defendant and, thus, the summary judgment rendered
on those counts is immediately appealable. See Practice Book § 61-3 (‘‘[a]
judgment disposing of only a part of a complaint . . . is a final judgment
if that judgment disposes of all causes of action in that complaint . . .
brought by a particular party or parties’’).
4
Section 379A of the Restatement (Second) of Torts provides: ‘‘A lessor
of land is subject to liability for physical harm to persons outside of the
land caused by the activities of the lessee or others on the land after the
lessor transfers possession if, but only if,
‘‘(a) the lessor at the time of the lease consented to such activity or knew
that it would be carried on, and
‘‘(b) the lessor knew or had reason to know that it would unavoidably
involve such an unreasonable risk, or that special precautions necessary
to safety would not be taken.’’ 2 Restatement (Second), Torts § 379A, p.
283 (1965).
5
As alleged in the complaint, Aviles, who was in her third trimester of
pregnancy at the time of the incident, sustained extensive injuries, including
eighteen punctures /lacerations to her stomach, complete severance of her
left ear that was unable to be reattached, and numerous punctures/lacera-
tions to her arm, fingers, breast, back, head, chin, and jaw. Bauza suffered
physical injuries to the back of his neck, scalp, and arms, as well as mental
health issues after the injury, including adjustment disorder with anxiety,
attention deficit hyperactivity disorder, and language disorder involving
understanding and expression of language.
6
Comment (a) to § 379A provides that it should be read together with
§ 837 of the Restatement (Second) of Torts, which concerns lessor liability
for nuisances on the land, and that the comments to § 837 ‘‘are applicable
so far as they are pertinent.’’ 2 Restatement (Second), supra, § 379A, com-
ment (a), p. 283.
7
On appeal, the defendant also argues that if, assuming arguendo, we
were to adopt § 379A, we should nonetheless affirm the granting of its
motion for summary judgment because the plaintiffs did not plead sufficient
facts in their operative complaint to establish liability under § 379A, and,
additionally, the plaintiffs failed to establish a genuine issue of material fact
as to the elements of § 379A. Because we decline to adopt § 379A, we need
not address these arguments.
8
This court previously declined to adopt a Restatement provision that
conflicted with existing case law. In Davis v. Davis-Henriques, supra, 163
Conn. App. 301, the plaintiff requested that this court adopt a provision from
the Restatement (Third) of Property, Wills and other Donative Transfers,
that was contrary to our Supreme Court’s pattern of reliance on Connecti-
cut’s wills act, General Statutes § 45a-251 et seq. Id., 311–12. We concluded
that, because this court ‘‘is not free to depart from or modify the precedent
of our Supreme Court,’’ and ‘‘[b]ecause our Supreme Court has articulated
a ‘rule of strict compliance with the wills act,’ ’’ we could not depart from
that rule and adopt the Restatement provision. Id., 312–13. We reach the
same conclusion in the present case.
9
This court made that statement in response to the plaintiff’s argument
that the dog bite statute should be extended to landlords. See Stokes v.
Lyddy, supra, 75 Conn. App. 265–66. If the trial court in the present case
had been asked expressly to adopt § 379A, it would have encountered the
same concern as the court in Stokes because adopting § 379A, like expanding
the dog bite statute, would have made landlords liable for off premises
injuries and, consequently, required them to become the insurers of the
public without end.