Raczkowski v. McFarlane ( 2020 )

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TONI RACZKOWSKI v. DAVID J. MCFARLANE ET AL.
(AC 42024)
Keller, Prescott and Harper, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, G and M, for
negligence in connection with personal injuries she allegedly sustained
when she was bitten by a dog owned by M on property that M leased
from G pursuant to a written lease agreement. The lease permitted the
tenant to keep a pet on the property in exchange for increased rent but
required that the pet pose no threat to anyone entering the property
and provided that that was to be determined by the landlord. The plaintiff
alleged, inter alia, that G was negligent because she knew or should
have known the vicious propensities of M’s dog and by allowing the
dog to stay on the property, G failed to use reasonable care to keep the
property in a reasonably safe condition. In addition, the plaintiff alleged
that the lease imposed on G a duty of care that extended to third persons
who were not parties to the lease. Following a hearing, the trial court
granted G’s motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court. She claimed
that the trial court improperly rendered summary judgment in favor of
G because it erroneously concluded that G did not owe her a duty of
care on the basis of the lease between G and M. Held:
1. The trial court properly rendered summary judgment in G’s favor, there
having been no genuine issue of material fact that the plain language
of the lease did not require G to investigate the behavioral propensities
of M’s dog and that the lease did not create a duty on the part of G to
third persons who might encounter the dog on the property; the relevant
language of the lease clearly did not impose a duty on G to perform an
extraneous investigation of the dog’s behavioral propensities but, rather,
simply provided G with discretion to approve or deny the ability of the
tenant to own or keep pets on the property and was included for the
exclusive benefit of G in her capacity as the landlord, and the obligations
under the lease were limited to its signatories and did not extend to
third persons, as the language of the lease clearly demonstrated that G
and M did not intend to create an obligation to any third persons.
2. The plaintiff could not prevail on her claim that the language of the lease
related to G’s discretion to approve a tenant having a pet on the property
created a genuine issue of material fact as to whether G retained control
over the property and, therefore, whether the lease imposed on G a
duty of care to keep in a reasonably safe condition those portions of
the property over which she reserved control: G submitted a copy of
the lease and various affidavits demonstrating that the entire property
was leased to M and thereby established that she did not have control
or possession over the property where the plaintiff was injured and,
therefore, did not owe a duty of care to the plaintiff, and the plaintiff
failed to provide any evidence to show that there was a genuine issue
of material fact as to whether G had possession or control over the
property; moreover, the plaintiff’s reliance on Giacalone v. Housing
Authority (306 Conn. 399) was misplaced, as that case was distinguish-
able because, in the present, case there was no common area of the
property for G to keep reasonably safe due to M’s exclusive possession
under the lease, and, therefore, G had no right to enter the property
and to physically remove M’s dog, and the issue of whether the landlord
knew or should have known of the dog’s vicious tendencies was not
before this court.
Argued October 15, 2019—officially released January 21, 2020
Procedural History
Action to recover damages for the defendants’ alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Shapiro, J., granted the motion for summary
judgment filed by the defendant Evelyn Garrow and
rendered judgment thereon; thereafter, the court, Hon.
Robert B. Shapiro, judge trial referee, denied the plain-
tiff’s motion to reargue, and the plaintiff appealed to
this court. Affirmed.
Keith Yagaloff, for the appellant (plaintiff).
Joseph M. Busher, Jr., for the appellee (defendant
Evelyn Garrow).
Opinion
HARPER, J. The plaintiff, Toni Raczkowski, brought
the underlying negligence action against the defendant
landlord, Evelyn Garrow.1 The plaintiff sought compen-
sation for damages she allegedly sustained when she
was bitten by a dog owned by the defendant’s tenant,
David J. McFarlane, on the leased property. The plaintiff
appeals from the summary judgment rendered by the
trial court in favor of the defendant. The plaintiff claims
that the court improperly granted the defendant’s
motion for summary judgment because it erroneously
concluded that the defendant did not owe her a duty
of care on the basis of the lease agreement between
the defendant and McFarlane.2 We disagree and, accord-
ingly, affirm the judgment of the trial court.
The record, viewed in the light most favorable to the
plaintiff as the nonmoving party, reveals the following
relevant facts and procedural history. On April 16, 2016,
the plaintiff was walking her dog along the sidewalk in
front of 295 Hilliard Street in Manchester (property).
As she was walking her dog near the property, a dog
named Diesel, owned by McFarlane, ran out and bit her.
This occurred, in part, on the property. The plaintiff’s
injuries included multiple puncture wounds and tears
to her forearm and wrist. At the time of the incident,
the defendant was the owner and landlord of the prop-
erty, and was renting the property to McFarlane pursu-
ant to a written lease agreement.
On April 11, 2017, the plaintiff commenced the pres-
ent action. In her amended complaint, the plaintiff
alleged that the defendant was negligent in that she
knew or should have known that McFarlane’s dog was
dangerous and that allowing the dog to stay on the
property constituted a failure to use reasonable care
to keep the property in a reasonably safe condition.
Furthermore, the plaintiff alleged that the lease
between the defendant and McFarlane, which left the
approval of any dogs living on the property to the discre-
tion of the defendant, imposed on the defendant a duty
of care to third persons who are not parties to the lease.
On January 19, 2018, the defendant filed a motion for
summary judgment in which the defendant asserted
that the plaintiff had failed to demonstrate that there
was a genuine issue of material fact as to whether the
defendant had actual or constructive knowledge of the
dog’s vicious propensities or whether the defendant
owed the plaintiff a duty of care on the basis of the
lease agreement between the defendant and McFarlane.
The plaintiff filed an objection to the motion for sum-
mary judgment on April 9, 2018. In support of her objec-
tion, the plaintiff asserted that there was a genuine
issue of material fact as to whether the lease imposed
a duty on the defendant that extended to the plaintiff, a
nonparty to the lease. The plaintiff relied on an affidavit
from a neighbor that suggested that McFarlane’s dog
had vicious propensities.3
On April 16, 2018, the court, Shapiro, J., held a hear-
ing on the defendant’s motion for summary judgment.
The court granted the motion for summary judgment
on June 11, 2018, and issued a memorandum of decision
setting forth its reasoning. In its memorandum of deci-
sion, the court concluded that the defendant was enti-
tled to summary judgment because there was no genu-
ine issue of material fact as to whether the defendant
knew or should have known of the dog’s allegedly
vicious propensities or whether the lease agreement
imposed on the defendant a duty of care that extended
to nonparties to the lease. The court further concluded
that a plain reading of the language in the lease revealed
that the lease did not impose a duty on the defendant
that required her to make a reasonable inquiry into the
behavior of McFarlane’s dog.
On June 29, 2018, the plaintiff filed a ‘‘motion to
reargue/reconsider’’ with the court. In her motion, the
plaintiff reiterated many of the same arguments that
she raised in her objection to the motion for summary
judgment. Additionally, she characterized the court’s
analysis in its memorandum of decision as concluding
that the language in the lease between the defendant
and McFarlane was ‘‘vague.’’ On August 9, 2018, the
court issued a ruling on the plaintiff’s ‘‘motion to rear-
gue/reconsider’’ in which it disputed the plaintiff’s char-
acterization. The court concluded that it ‘‘did not find
. . . the language of the lease agreement . . . ambigu-
ous. Rather, the court found that the plain language of
the lease [did] not support the plaintiff’s interpretation
that [the defendant] had a blanket duty to anyone enter-
ing the property to ensure that any dog residing on the
property did not pose a threat. . . . [The lease] plainly
and unambiguously did not create a duty owed by [the
defendant] to unnamed third [persons], such as [the
plaintiff] who happened to come onto [the defendant’s]
property.’’ This appeal followed. Additional facts will
be set forth as necessary.
On appeal, the plaintiff advances one claim, but
makes two arguments in support of that claim. First,
she argues that the court erred in rendering summary
judgment in favor of the defendant because there was
a genuine issue of material fact as to whether the lease
created a duty requiring the defendant to investigate
the behavioral propensities of a tenant’s dog on the
property on behalf of third persons not parties to the
lease. According to the plaintiff, this duty of care owed
to her would have required the defendant to take some
type of action to protect third persons not parties to the
lease from dangerous dogs being kept on the property.
Second, she argues that the language of the lease stating
that the defendant had discretion to approve her ten-
ant’s pets created a genuine issue of material fact as
to whether the defendant retained control over the
property and, therefore, whether the lease imposed a
duty of care to keep in a reasonably safe condition
those portions of the property over which she reserved
control. We disagree with the plaintiff’s arguments.
We begin our analysis with the standard of review
applicable to a trial court’s decision to grant a motion
for summary judgment. ‘‘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. A party moving for summary judg-
ment is held to a strict standard. . . . To satisfy his
burden the movant must make a showing that it is quite
clear what the truth is, and that excludes any real doubt
as to the existence of any genuine issue of material
fact. . . . As the burden of proof is on the movant, the
evidence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Anderson v. Dike, 187 Conn. App. 405, 409–10,
202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d
1245 (2019).
The plaintiff argues that the language of the lease
imposed a duty of care on the defendant to investigate
the behavioral propensities of McFarlane’s dog and that
the lease recognized that the defendant owed a duty of
care to nonparties to the lease who might encounter
the dog on the property.
Here, because the lease is a contract and the plaintiff’s
claim presents a question of contract interpretation, the
lease is subject to the same rules of construction as
other contracts. See Bristol v. Ocean State Job Lot
Stores of Connecticut, Inc., 284 Conn. 1, 7, 931 A.2d
837 (2007). ‘‘Where the language of the contract is clear
and unambiguous, the contract is to be given effect
according to its terms. . . . When only one interpreta-
tion of a contract is possible, the court need not look
outside the four corners of the contract. . . . [E]xtrin-
sic evidence may be considered in determining contrac-
tual intent only if a contract is ambiguous. . . . When
the intention conveyed by the terms of an agreement
is clear and unambiguous, there is no room for construc-
tion. . . . The circumstances surrounding the making
of the contract, the purposes which the parties sought
to accomplish and their motives cannot prove an intent
contrary to the plain meaning of the language used.
. . . In sum, decisional law holds that if the language
of the contract is clear and unambiguous, our courts
must look only to the four corners of the contract to
discern the parties’ intent.’’ (Citations omitted; internal
quotation marks omitted.) Konover v. Kolakowski, 186
Conn. App. 706, 719–20, 200 A.3d 1177 (2018), cert.
denied, 330 Conn. 970, 200 A.3d 1151 (2019). Thus, when
a contract is unambiguous within its four corners, as
it is here, the interpretation of it is a question of law
for this court. See Connecticut National Bank v. Rehab
Associates, 300 Conn. 314, 319, 12 A.3d 995 (2011).
Additionally, ‘‘when the claim [of a duty of care aris-
ing out of a contract] is brought [by an individual] who
is not a party to the contract, the duty must arise from
something other than mere failure to perform properly
under the contract. . . . The ultimate test of the exis-
tence of the duty to use care is found in the foreseeabil-
ity that harm may result if it is not exercised.’’ (Citation
omitted; internal quotation marks omitted.) Atelier
Constantin Popescu, LLC v. JC Corp., 134 Conn. App.
731, 757, 49 A.3d 1003 (2012). In the present case, how-
ever, unless the signatories of the lease intended, at
the time of signing, that the plaintiff be a third-party
beneficiary, then the harm that could have resulted if
a duty of care was not exercised was not foreseeable.
‘‘The proper test to determine whether a lease creates
a third party beneficiary relationship is whether the
parties to the lease intended to create a direct obligation
from one party to the lease to the third party. . . . In
determining the meaning and effect of the controverted
language in the lease, the inquiry must focus on the
intention expressed in the lease and not on what inten-
tion existed in the minds of the parties.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 231,
654 A.2d 342 (1995). ‘‘Although . . . it is not in all
instances necessary that there be express language in
the contract creating a direct obligation to the claimed
third party beneficiary . . . the only way a contract
could create a direct obligation between a promisor
and a third party beneficiary would have to be . . .
because the parties to the contract so intended. . . .
[B]oth contracting parties must intend to confer
enforceable rights in a third party . . . in order to give
the third party standing to bring suit. This requirement
rests, in part at least, on the policy of certainty in enforc-
ing contracts, which entitles each party to a contract
to know the scope of his or her obligations thereunder.’’
(Citations omitted; internal quotation marks omitted.)
Hilario’s Truck Center, LLC v. Rinaldi, 183 Conn. App.
597, 605, 193 A.3d 683, cert. denied, 330 Conn. 925, 194
A.3d 776 (2018).
In the present case, the relevant language of the lease
is as follows: ‘‘The tenant may keep a pet but this will
increase the monthly payment by $50.00 per month.
The tenant must keep the pet healthy and well groomed.
The pet must pose no threat to anyone coming on the
property. This is to be determined by the landlord.’’
Because we conclude that the language of the contract
is clear and unambiguous, we look only to the plain
meaning of the language used therein.4
It is clear from the language of the lease that the
lease did not impose a duty on the defendant to perform
an extraneous investigation of the dog’s behavioral pro-
pensities.5 The language of the lease simply provides
the defendant the discretion to approve or deny the
ability of her tenants to own or keep pets on the prop-
erty. This language was included for the exclusive bene-
fit of the defendant in her capacity as the landlord. The
relevant clause states that ‘‘[t]his is to be determined
by the landlord.’’ A reasonable interpretation of this
language would be that the defendant was reserving
the right to make a determination regarding whether a
dog could be kept by a lessee. Furthermore, we disagree
with the plaintiff’s argument that the lease created a
duty on the part of the defendant to third persons who
might encounter the dog on the property. Here, the
lease’s obligations are limited to its signatories and do
not extend to third persons. After consideration of the
parties’ intent expressed by the language in the lease,
we conclude that the language of the lease clearly dem-
onstrates that the defendant and McFarlane did not
intend to create an obligation to any third persons.
On the basis of the foregoing, we conclude that there
is no genuine issue of material fact that the plain lan-
guage of the lease did not require the defendant to
investigate the behavioral propensities of the dog and
that the lease did not create a duty on the part of the
defendant to third persons who might encounter the
dog on the property.6
The plaintiff next argues that a genuine issue of mate-
rial fact exists as to whether the defendant reserved
control over the property, which created a duty to use
reasonable care to keep in a reasonably safe condition
those portions of the property over which she reserved
control. Specifically, the plaintiff, relying on the lan-
guage we have previously interpreted in this opinion,
contends that the language of the lease proves that
the defendant retained possession and control over the
leased property. For the reasons that follow, we inter-
pret the plain and unambiguous language of the lease
on which the plaintiff relies to give the tenant complete
control and possession of the property and, therefore,
disagree with the plaintiff’s argument.
‘‘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.’’ (Citation omitted; internal
quotation marks omitted.) Charles v. Mitchell, 158
Conn. App. 98, 108, 118 A.3d 149 (2015).
‘‘The general rule regarding premises liability in the
landlord-tenant context is that landlords owe a duty of
reasonable care as to those parts of the property over
which they have retained control . . . . [L]andlords
[however] generally [do] not have a duty to keep in
repair any portion of the premises leased to and in the
exclusive possession and control of the tenant. . . .
Retention of control is essentially a matter of intention
to be determined in the light of all the significant circum-
stances. . . . The word control has no legal or techni-
cal meaning distinct from that given in its popular
acceptation . . . and refers to the power or authority
to manage, superintend, direct or oversee. . . . Unless
it is definitely expressed in the lease,the circumstances
of the particular case determine whether the lessor has
reserved control of the premises or whether they were
under the exclusive dominion of the tenant . . . .’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) Fiorelli v. Gorsky, 120 Conn. App.
298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10
A.3d 517 (2010). Thus, ‘‘summary judgment is appro-
priate when there is no genuine issue of material fact.
A material fact is one that will make a difference in the
case. . . . Therefore, to answer the question pre-
sented, we must determine whether a genuine issue of
material fact exists as to whether the incident occurred
at a location over which the defendant exercised con-
trol.’’ (Citation omitted.) Charles v. Mitchell, supra, 158
Conn. App. 110. Previously in this opinion, we set forth
the well settled principles that govern our interpretation
of contracts.
The defendant asserts that the lease language that
vests discretion in her to approve pets does not serve
as a reservation of control over the property. To support
this claim, she submitted a copy of the lease and various
affidavits to establish that she did not have control or
possession over the property where the plaintiff was
injured and, therefore, did not owe a duty of care to
the plaintiff. The affidavits submitted by the defendant
demonstrate that the tenant, McFarlane, was responsi-
ble for the exterior maintenance of the property, includ-
ing but not limited to, the front and back lawn and
the driveway. Further, the entirety of the property was
leased to McFarlane. We have held that when parts of a
premises or a property are leased to and in the exclusive
possession and control of the tenant, the landlord does
not owe a duty of reasonable care because in that
instance, the landlord does not have possession or con-
trol of the property. Fiorelli v. Gorsky, supra, 120 Conn.
App. 308.
The plaintiff relies on Giacalone v. Housing Author-
ity, 306 Conn. 399, 51 A.3d 352 (2012), for the proposi-
tion that it is the duty of the landlord to maintain the
areas of the premises over which they reserve control.
Giacalone, however, is distinguishable from the present
case. Giacalone involved two tenants who shared a
common landlord—one of which was bitten by the oth-
er’s dog in a common area of the property. Id., 402.
Thereafter, the injured tenant brought a common-law
premises liability action against the landlord, claiming
that the landlord was negligent because the landlord,
with knowledge that the dog had vicious propensities,
failed to remove the dog from the property. Id. Our
Supreme 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 areas of the property.’’
(Emphasis added.) Id., 408. The plaintiff’s reliance on
Giacalone is misplaced.
In the present case, because the entirety of the prop-
erty was leased to McFarlane and he maintained exclu-
sive possession and control over it, there was no com-
mon area for the defendant to keep reasonably safe.
Furthermore, because there was no common area of
the property due to McFarlane’s exclusive possession,
the defendant had no right to enter the property and to
physically remove McFarlane’s dog. See Central Coat,
Apron & Linen Service, Inc. v. Indemnity Ins. Co., 136
Conn. 234, 237, 70 A.2d 126 (1949) (concluding that
‘‘[w]here entire premises are rented, in the absence of
any agreement, the tenant . . . has the right of exclu-
sive possession and control, and the landlord has no
right to enter upon them’’). Lastly, as we have discussed
in the preceding paragraphs of this opinion, the issue
of whether the landlord knew or should have known
of the dog’s vicious tendencies is not before this court.
Thus, Giacalone is distinguishable from the present
case.
After the defendant satisfied her burden as the mov-
ing party and established that there was no genuine
issue of material fact with respect to whether she
retained control over any portion of the leased property,
the plaintiff was required to demonstrate the existence
of a disputed fact. ‘‘The party opposing summary judg-
ment must present a factual predicate for [her] argu-
ment to raise a genuine issue of fact. . . . [B]are asser-
tions by the nonmovant are not enough to withstand
summary judgment.’’ (Citation omitted; internal quota-
tion marks omitted.) Colon v. AutoZone Northeast, Inc.,
148 Conn. App. 435, 440, 84 A.3d 1234 (2014). Here, the
plaintiff neglected to provide any evidence to show that
there was a genuine issue of material fact as to whether
the defendant had possession or control over the prop-
erty. The plaintiff merely referred to sections of the
lease under which the defendant has discretion to
approve or deny whether her tenant keeps a pet on the
property. Thus, because the plaintiff failed to demon-
strate a genuine issue of material fact, the court prop-
erly rendered summary judgment in favor of the
defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff named Garrow and her tenant, David J. McFarlane, as
defendants in this action. McFarlane has not appeared in this action either
before the trial court or this court and, thus, has not participated in this
appeal. In this opinion, we refer to Garrow as the defendant.
2
In her statement of issues, the plaintiff set forth the following three
issues: ‘‘1. Did the court err in failing to apply the appropriate legal standard
for a motion for summary judgment?
‘‘2. Did the court err in determining that the defendant . . . did not owe
a contractual duty of care to the plaintiff arising out of the lease with
. . . McFarlane?
‘‘3. Did the court err in finding that the lease language did not support
the existence of a duty for [the defendant] to perform a reasonable inquiry
into the dog’s dangerous tendencies?’’
The plaintiff’s brief does not comply with Practice Book § 67-4 (b) in that
the statement of issues is not accompanied by ‘‘appropriate references to
the page or pages of the brief where [each] issue is discussed’’ in the brief.
Nor does the brief comply with § 67-4 (e) in that the plaintiff’s argument is
not ‘‘divided under appropriate headings into as many parts as there are
points to be presented’’ with ‘‘a separate, brief statement of the standard
of review the appellant believes should be applied’’ to each part.
Despite these deficiencies with respect to the brief, we have reviewed
the arguments raised therein and conclude that it essentially raises a single
issue with two subparts, namely, whether the court improperly failed to
conclude that a genuine issue of material fact existed with respect to whether
the language of the lease gave rise to a duty of care owed by the defendant
to third parties, including the plaintiff, because the lease (1) required the
defendant to investigate on behalf of third parties whether dogs on the
subject property had dangerous propensities and (2) reflected that the defen-
dant retained control over the portion of the leased property where the
plaintiff sustained her injuries and, thus, the defendant owed third parties
who were on this portion of the property a duty of care with respect to
dangerous dogs.
We note that, during oral argument before this court, the plaintiff acknowl-
edged that she was not pursuing a claim that the court improperly failed
to determine that a duty of care arose apart from the language of the lease.
3
During the hearing on the motion for summary judgment, the defendant
objected to the affidavit from McFarlane’s neighbor on the ground that it
contained hearsay. The affidavit indicated that the neighbor knew of the
dog’s vicious tendencies prior to the incident in which the plaintiff was
bitten. The court, however, having found that it was undisputed that the
defendant did not have knowledge of the dog’s allegedly vicious tendencies
prior to the attack, did not address the argument relating to the consideration
of the neighbor’s affidavit.
4
We note that during oral argument before this court, when specifically
asked whether the language of the lease was ambiguous or unambiguous,
the plaintiff repeatedly conceded that the language was unambiguous.
Because the language is unambiguous, a proper analysis of the language at
issue is not dependent on extrinsic evidence of the parties’ intent. See
Parisi v. Parisi, 315 Conn. 370, 383, 107 A.3d 920 (2015) (‘‘[w]hen only one
interpretation of the contract is possible, the court need not look outside
the four corners of the contract’’[internal quotation marks omitted]).
5
We find persuasive the defendant’s argument that it is unreasonable to
interpret the language of the lease stating that ‘‘the pet must pose no threat
to anyone coming on the property’’ as requiring the defendant to pay for a
canine DNA analysis, to review an inspection by a veterinarian, or for her
to complete a canine lineage check. Nor do we conclude that the language
of the lease requires the defendant to interview previous owners or even
review similar tests provided and paid for by the tenant.
6
The defendant cites authority outside of this jurisdiction in support of
her position that a lease provision regarding pets does not create a duty to
third persons who are not parties to the lease. We find this authority instruc-
tive. See Boots v. Winters, 145 Idaho 389, 396, 179 P.3d 352 (App. 2008)
(concluding that landlord did not assume duty to protect third persons not
parties to lease from tenant’s dogs, when securing a specific pet deposit
under lease); Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 72–73, 726
A.2d 927 (App. Div. 1999) (concluding that lease provision prohibiting tenants
from keeping pets does not make landlord responsible for injuries to third
persons not parties to lease caused by dog kept in violation of that provision);
Gilbert v. Miller, 356 S.C. 25, 30–31, 586 S.E.2d 861 (App. 2003) (stating that
language of lease that made control of pet sole responsibility of tenant, and
required pet to meet landlord approval, did not create duty on part of
landlord to prevent injuries to third persons not parties to lease).