Sen v. Tsiongas ( 2019 )

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SEN v. TSIONGAS—CONCURRENCE
PRESCOTT, J., concurring. I agree with the opinion
of the majority that the trial court improperly rendered
summary judgment in favor of the defendant, Kostas
Tsiongas. In reaching this conclusion, however, I con-
clude, unlike the trial court, that the fact that the dog
that bit the plaintiff, Isha Sen, in this case is a pit bull
is a relevant factual consideration in assessing whether
the landlord-defendant had constructive knowledge of
the dog’s vicious propensities.1 Because the question
of whether, in the absence of any consideration of the
breed of the dog in this case, the trial court properly
rendered summary judgment in favor of the defendant
is a close one, I am of the view that it is appropriate
to address the relevance of the breed of the dog.
Numerous courts have concluded that pit bulls or
mixed breed pit bulls pose dangers to people greater
than most, if not all, other breeds of dogs. See, e.g.,
Altman v. High Point, 330 F.3d 194, 206 (4th Cir. 2003)
(‘‘pit bulls . . . are a dangerous breed of dog’’);
Vanater v. South Point, 717 F. Supp. 1236, 1241 (S.D.
Ohio 1989) (‘‘[w]hile [p]it [b]ulls are not the only breed
of dog which can be dangerous or vicious, it is reason-
able to single out the breed to anticipate and avoid the
dangerous aggressiveness which may be undetectable
in a[n] [individual] [p]it [b]ull’’); see also Tracey v.
Solesky, 427 Md. 627, 644 n.18, 50 A.3d 1075 (2012),
superseded by statute as stated in Phillips v. J Bar W,
Inc., Docket No. 1167, 2017 WL 4876762, *4 (Md. Spec.
App. October 27, 2017).2
Many localities have banned or highly regulated own-
ership of pit bulls, against constitutional challenge,
because of the pit bull’s vicious tendencies and ability to
cause severe injuries. See, e.g., American Dog Owners
Assn., Inc. v. Dade County, 728 F. Supp. 1533, 1538–43
(S.D. Fla. 1989); Starkey v. Chester, 628 F. Supp. 196,
197–98 (E.D. Pa. 1986); Holt v. Maumelle, 307 Ark. 115,
117–19, 817 S.W.2d 208 (1991); Colorado Dog Fanciers,
Inc. v. Denver, 820 P.2d 644, 650–54 (Colo. 1991) (en
banc); State v. Peters, 534 So. 2d 760, 763–65 (Fla. App.
1988), review denied, 542 So. 2d 1334 (Fla. 1989); Amer-
ican Dog Owners Assn., Inc. v. Des Moines, 469 N.W.2d
416, 417–19 (Iowa 1991); Hearn v. Overland Park, 244
Kan. 638, 647–50, 772 P.2d 758, cert. denied, 493 U.S.
976, 110 S. Ct. 500, 107 L. Ed. 2d 503 (1989); Bess v.
Bracken County Fiscal Court, 210 S.W.3d 177, 181–83
(Ky. App. 2006); Garcia v. Tijeras, 108 N.M. 116, 118–24,
767 P.2d 355 (App.), cert. denied, 107 N.M. 785, 765
P.2d 758 (1988); Toledo v. Tellings, 114 Ohio St. 3d 278,
281–84, 871 N.E.2d 1152 (2007), cert. denied, 552 U.S.
1225, 128 S. Ct. 1302, 170 L. Ed. 2d 140 (2008); Green-
wood v. North Salt Lake, 817 P.2d 816, 818–21 (Utah
1991); Dog Federation of Wisconsin, Inc. v. South Mil-
waukee, 504 N.W.2d 375 (Wis. Ct. App.), review denied,
508 N.W.2d 423 (Wis. 1993). Furthermore, several
branches of our military ban pit bulls from housing
facilities on military bases because of concerns regard-
ing the breed’s tendency toward viciousness. See, e.g.,
D. Conkright, Department of the Army, ‘‘Memorandum
for See Distribution: United States Army Garrison Hum-
phreys, Policy Letter #34, Ownership and Control of
Pets,’’ (July 21, 2013), available at https://www.ar-
my.mil/e2/c/downloads/328371.pdf (last visited August
12, 2019).
In light of the pit bull breed’s vicious tendencies,
at least two courts have held that it is ‘‘objectively
reasonable’’ for a person to assume an approaching pit
bull is vicious even though that individual pit bull is,
in fact, ‘‘a friendly, nonviolent dog who would not have
harmed [others] . . . .’’ Warboys v. Proulx, 303 F.
Supp. 2d 111, 118 and n.13 (D. Conn. 2004); see also
United States v. Sutton, 336 F.3d 550, 551, 554 (7th Cir.
2003) (holding that less than full compliance with knock
and announce rule was reasonable under circum-
stances, in part, because ‘‘pit bull dogs [known for their
hostility to strangers] had been seen on the property,’’
which police identified as ‘‘[a] potential [threat] to offi-
cer safety’’); Pickens v. Wasson-Hunt, United States
District Court, Docket No. 04-0678-CV-W-HFS (W.D.
Mo. August 7, 2006) (determining that police officers
were not unreasonable in directing their weapons at
pit bull who was not acting aggressively because ‘‘it is
clear that the unquantifiable, unpredictable aggressive-
ness and gameness of pit bulls make them uniquely dan-
gerous’’).
In Warboys, the court determined that a police officer
was not required to wait until the pit bull leaped toward
him to take protective action. Warboys v. Proulx, supra,
303 F. Supp. 2d 118. In making this determination, the
court considered extensively the vicious tendencies of
the pit bull breed. See id., 118–19 n.13. On the basis of
this information, the court concluded that ‘‘it is reason-
able to single out the [pit bull] breed to anticipate and
avoid the dangerous aggressiveness [that] may be unde-
tectable in a[n] [individual] [p]it [b]ull.’’ (Internal quota-
tion marks omitted.) Id., 119 n.13. Thus, the court in
Warboys determined that the officer did not need to
know about the behavioral characteristics or propensit-
ies of the individual pit bull approaching him; the fact
that the pit bull breed itself is known for violent behav-
ior was a sufficient basis for the officer to determine
how to treat the approaching dog.
Although breed does not establish by itself a prima
facie case of constructive knowledge of danger, it is a
relevant factual consideration to be evaluated along
with the other evidence. In light of the danger some
pit bulls pose to people, some courts have held that
evidence regarding the vicious tendencies of the pit
bull breed may be considered by a jury as part of its
determination of whether a defendant had reason to
know of an individual pit bull’s dangerousness.3 See,
e.g., Drake v. Dean, 15 Cal. App. 4th 915, 923–24, 19
Cal. Rptr. 2d 325 (1993) (determining that evidence of
pit bulls historically being bred for aggressiveness may
be considered by jury to consider dangerousness of
individual pit bull); Giaculli v. Bright, 584 So. 2d 187,
188, 189 (Fla. App. 1991) (holding that landlord could
be held liable for injuries to plaintiff’s son caused by
neighbor’s pit bull because ‘‘it is not necessary that pit
bulls be declared vicious per se under the law in order
for the landlord and owners to be placed on notice that
a tenant has a vicious dog’’ and, therefore, ‘‘[t]he fact
that the dog was barking and lunging, particularly in
light of the characteristics of pit bulls, is sufficient for
a jury to reasonably conclude that the landlord was on
notice of the vicious propensity of the dog’’); Hampton
ex rel. Hampton v. Hammons, 743 P.2d 1053, 1056,
1061 (Okla. 1987) (holding that ‘‘evidence relating to the
nature of pit [bulls] as a breed is properly admissible’’
because it is relevant in determining whether defendant
is liable for common-law negligence).
Moreover, an animal’s type has been a consideration
our Supreme Court has used to determine whether the
owner of the animal is liable for the injuries it caused.4
The court has held that, even in the absence of evidence
purporting to show the vicious tendencies of an indi-
vidual animal, an owner may be held liable for negli-
gence for the foreseeable harms5 of an animal that is
a part of a ‘‘class of animals that is naturally inclined
to cause such injuries . . . .’’6 (Emphasis added.) Ven-
drella v. Astriab Family Ltd. Partnership, 311 Conn.
301, 306, 87 A.3d 546 (2014); see id. (holding that ‘‘the
owner or keeper of a domestic animal has a duty to take
reasonable steps to prevent injuries that are foreseeable
because the animal belongs to a class of animals that
is naturally inclined to cause such injuries, regardless
of whether the animal had previously caused an injury
or was roaming at large and, accordingly, the owner
may be held liable for negligence if he or she fails to
take such reasonable steps and an injury results’’); see
also Hope v. Valente, 86 Conn. 301, 303–305, 85 A. 541
(1912) (holding that, even in absence of evidence con-
cerning behavioral tendencies of defendant’s horse,
defendant may be liable for negligence based on manner
in which horse was left in street while feeding).
Our Supreme Court in Vendrella, however, declined
to classify a horse as presumptively dangerous and
refused to hold its keeper strictly liable for the harms it
caused. Vendrella v. Astriab Family Ltd. Partnership,
supra, 311 Conn. 307–308. Instead, the court determined
that because ‘‘the plaintiffs’ evidence . . . created a
genuine issue of material fact as to whether horses have
a natural inclination to bite humans, the case must be
submitted to the trier of facts so that it may decide as
a matter of fact whether the plaintiffs have met their
burden of proof on that issue and, if so, whether the
defendants were negligent in controlling [the horse].’’
(Emphasis in original.) Id., 308. Hence, the court held
that it was for the trier of fact to determine whether
the ‘‘plaintiff’s injuries were foreseeable and, if so, what
the appropriate standard of care was, whether the
defendants breached that standard of care and, if they
did, whether the breach was a proximate cause of the
minor plaintiff’s injuries.’’ Id.; see also Hope v. Valente,
supra, 86 Conn. 304–305 (holding that ‘‘[u]nder the facts
claimed to have been proved it was proper to leave
it to the jury to determine whether, regardless of the
viciousness of the defendant’s horse, he was negligent
in leaving it in the street in the manner claimed’’).
I arrive at a conclusion similar to that of our Supreme
Court in Vendrella. I do not posit that all pit bulls are
vicious, nor do I contend that a landlord is or should
be strictly liable for injuries caused by a tenant’s pit
bull. Indeed, if the pit bull in the present case was
known to lick affectionately every passerby and the
defendant had observed such behavior, then it is
unlikely that the trier of fact would find that the defen-
dant had constructive knowledge that the dog posed a
danger to the other tenants.
Furthermore, I agree with the court in Vendrella and
other courts that the fact that an animal is of a certain
class—or, in the present case, breed—may create a
genuine issue of material fact as to whether a landlord,
who owed a plaintiff a duty of care, had constructive
knowledge of the vicious propensities of the animal
that caused harm. In the present case, whether the
defendant had constructive knowledge that this dog
had vicious propensities must be determined by the
totality of the circumstances presented by the case. In
making the factual determination regarding whether
the defendant knew or should have known that the dog
was vicious, I am not prepared to say that it is irrelevant
as a matter of law that the dog is a member of a breed
that presents heightened danger to others.7
In the present case, the defendant conceded at his
deposition that pit bulls are widely known to be aggres-
sive and dangerous dogs.8 In my view, the behavioral
characteristics of the pit bull breed, along with other
evidence before the court, create a genuine issue of
material fact as to whether the defendant had construc-
tive knowledge of the vicious propensities of the dog
that harmed the plaintiff. Accordingly, I concur in the
decision to reverse the summary judgment rendered in
favor of the defendant.
1
With respect to the fact that the dog in this case is a pit bull or a mixed
breed pit bull, the trial court stated that it ‘‘is not about to make a global
finding that if a dog bite case involves a pit bull and/or bait pit bull, the
landlord is on notice for vicious tendencies.’’ (Internal quotation marks
omitted.) The trial court’s statement incorrectly suggests that it was being
asked to decide whether the fact that the dog in the case was a pit bull
establishes, by itself, as a matter of law, that the landlord had constructive
knowledge of its vicious tendencies. The plaintiff has made no such claim.
Instead, she merely asserts that it is one relevant fact, among others, that
raises a genuine issue of material fact regarding the landlord’s construc-
tive knowledge.
2
The Court of Appeals of Maryland in Tracey concluded that a landlord
should be held strictly liable for injuries caused by a tenant’s pit bull. The
Maryland legislature subsequently overturned the decision in Tracey by
enacting Md. Code Ann., Cts. & Jud. Proc. § 3-1901 (b) (West 2014). This
statute, however, only abrogated Maryland common law to the extent that
it imposed strict liability on a landlord for injuries caused by a tenant’s pit
bull. It did not overturn Maryland common law as it existed on or prior to
April 1, 2012. Maryland common law prior to April 1, 2012, provided that
it is a relevant factual consideration in determining a landlord’s liability for
injuries caused by a tenant’s dog that the animal was a pit bull. See, e.g.,
Matthews v. Amberwood Associates Ltd. Partnership, Inc., 351 Md. 544,
561, 719 A.2d 119 (1998) (noting that ‘‘[t]he extreme dangerousness of this
breed, as it has evolved today, is well recognized’’).
3
At least one court has held that if a dog breed is known for ‘‘vicious
tendencies,’’ then ‘‘knowledge of vicious propensities can be implied due
to the type of dog involved . . . .’’ Plue v. Lent, 146 A.D. 2d 968, 969,
537 N.Y.S.2d 90 (1989). If, however, the breed is not known for vicious
tendencies, then such an inference cannot be made. See id. Plue, however,
did not involve a pit bull. See id. Instead, it involved an Afghan hound,
which the court described as ‘‘a noble and dignified animal, which, when
properly treated, is aloof to strangers and characteristically gentle with
everyone.’’ Id. The court contrasted this dog with a German Shepherd, which
the court described as ‘‘a breed said to have inherited vicious tendencies
from its ancestor, the wolf . . . .’’ (Citation omitted.) Id.
4
In a case involving a horse at a commercial farm, our Supreme Court
stated, ‘‘[i]n making the determination as to whether, as a matter of public
policy, the owner or keeper of a domestic animal that has not previously
exhibited mischievous propensities may be held liable for injuries that were
foreseeable because the animal belonged to a class of animals with naturally
mischievous propensities, we consider the following four factors: (1) the
normal expectations of the participants in the activity under review; (2) the
public policy of encouraging participation in the activity, while weighing
the safety of the participants; (3) the avoidance of increased litigation; and
(4) the decisions of other jurisdictions.’’ (Internal quotation marks omitted.)
Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 322, 87 A.3d
546 (2014).
5
The court addressed what a plaintiff must show to prove that the harm
caused by a domestic animal was foreseeable to the defendant. ‘‘[T]o estab-
lish that an injury caused by a domestic animal was foreseeable, the plaintiff
need not prove that the species as a whole has a natural tendency to inflict
such harm, but only that the class of animals to which the specific animal
belongs has such a tendency. . . . Conversely, if a plaintiff presents evi-
dence that an entire species has naturally mischievous propensities, the
defendant may rebut this evidence by producing evidence that the mischie-
vous propensities of the specific animal, or of the particular class of animals
to which the specific animal belongs, are less severe than the mischievous
propensities of the species as a whole.’’ (Citations omitted; emphasis added.)
Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 333–34, 87
A.3d 546 (2014).
Thus, the court in Vendrella suggests that ‘‘class’’ is a subset of ‘‘species.’’
As applied to the present case, this might mean that although all dogs do
not have vicious propensities, certain breeds, like pit bulls, may possess
such propensities.
6
The common-law rule for negligence ‘‘has been modified substantially
as it pertains to dogs. Specifically, General Statutes § 22-357 imposes strict
liability on the ‘owner or keeper’ of a dog for harm caused by the dog, with
limited exceptions.’’ Giacalone v. Housing Authority, 306 Conn. 399, 405,
51 A.3d 352 (2012). This statute, however, does not impose strict liability
on a landlord if a dog that lives in his or her building bites someone. As
our Supreme Court observed, ‘‘a landlord is not the keeper of a dog for
purposes of § 22-357 merely because the landlord acquiesces in the presence
of the dog on leased premises, or because the landlord has the authority
to require that the dog be removed from the premises in the event that it
becomes a nuisance, or even because the landlord has the authority to
require that certain conditions be placed on the use of the dog by its owner.’’
Auster v. Norwalk United Methodist Church, 286 Conn. 152, 162, 943 A.2d
391 (2008). Thus, the statute did not abrogate a plaintiff’s ability to sue a
landlord for dog bite injuries under theories of common-law negligence or
premises liability. See Giacalone v. Housing Authority, supra, 401–403.
7
I disagree with the majority’s suggestion that I am somehow intruding
on a policy decision that should be left to our Supreme Court or the legisla-
ture. See footnote 2 of the majority opinion. Although either of those institu-
tions is free to weigh in as a matter of policy on this issue, there simply is
nothing inappropriate in this court determining, as a matter of common
sense and factual relevance, that the breed of the dog is a fact that bears
upon the question of whether the landlord had constructive knowledge of
the dog’s vicious tendencies.
8
The following exchange occurred between the plaintiff’s counsel and
the defendant:
‘‘[The Plaintiff’s Counsel]: Mr. Tsiongas, I mean, do you agree that pit
bulls are widely known to be aggressive and dangerous dogs?
***
‘‘[The Defendant]: Well, I mean, I’m sure they are. A lot of people think
so. I mean, I don’t know. I guess it depends on the dog.
‘‘[The Plaintiff’s Counsel]: Do you know that pit bulls have been banned
on U.S. military bases?
***
‘‘[The Defendant]: No, I didn’t know that.
‘‘[The Plaintiff’s Counsel]: All right. Did you know that the New York
City Housing Authority, which is responsible for providing safe housing for
400,000 New Yorkers [in] around 328 housing projects bans pit bulls from
its properties?
***
‘‘[The Defendant]: No.
‘‘[The Plaintiff’s Counsel]: Do you know why [it] might do that?
***
‘‘[The Defendant]: Okay. I don’t know.
‘‘[The Plaintiff’s Counsel]: Do you have any idea?
***
‘‘[The Defendant]: Well, I mean, I’m sure because [it has] problems with
them. I mean, I don’t know.
‘‘[The Plaintiff’s Counsel]: What kind of problems?
***
‘‘[The Defendant]: All right. Well, I mean, I don’t know what problems.
‘‘[The Plaintiff’s Counsel]: You don’t know what problems pit bulls—
‘‘[The Defendant]: Well, I’m sure some problems. Maybe they’re considered
a mean dog, or people abuse them. I don’t know. I mean—
‘‘[The Plaintiff’s Counsel]: You said something, they may be a mean dog
because people abuse them. What do you know about abused dogs?
***
‘‘[The Defendant]: Well, I mean, from what I know is what I hear in the
news, you know, people use them for fighting, you know, this and that.
That’s about it.
‘‘[The Plaintiff’s Counsel]: What happens to a dog, do you know what
happens to a dog if it’s been used in fighting?
‘‘[The Defendant]: Well, any dog that’s been, you know, abused or used
in fighting, it’s probably going to be mean, or hurt, or, I don’t know. I mean—
***
‘‘[The Plaintiff’s Counsel]: Do you agree that dogs that are used in fighting
might be mean?
‘‘[The Defendant]: Sure. Yes. I’m sure, yes.’’