DocketNumber: File No. CV01-0386098S.
Citation Numbers: 47 Conn. Super. Ct. 655, 47 Conn. Supp. 655
Judges: DOHERTY, J.
Filed Date: 2/25/2003
Status: Precedential
Modified Date: 1/12/2023
This is an action for personal injuries and other losses brought by the plaintiffs, Andrew E. Prucinsky and Diane S. Prucinsky, husband and wife, arising from a dog bite incident. *Page 656
The complaint is in two counts. Count one is a claim by Andrew E. Prucinsky for personal injuries and other losses and damages he allegedly sustained when he was bitten by a dog. Count two is a claim by Diane S. Prucinsky for bystander emotional distress she allegedly sustained as a result of observing her husband being attacked by the dog.
The incident allegedly took place at Seaside Park in Bridgeport, a public area. According to the allegations in the plaintiffs' complaint, the dog was allowed by the defendant, Ahmed A. Evans, to run loose without a leash or collar and it chased the plaintiffs' dog into the Prucinsky's automobile where it then attacked Andrew E. Prucinsky.
The defendant has averred that at the time of the incident, the dog, Martin, was owned by his cousin and that it was in the care of his aunt, Diane Rogers, who was caring for the dog while his cousin was incarcerated. The defendant maintains that he merely took the dog for a walk in the park and that he was not the "owner" or "keeper" of Martin.
The defendant has moved the court to dismiss the complaint summarily for the reason that this matter is brought exclusively under General Statutes §
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted *Page 657
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 deciding 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 applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Appletonv. Board of Education,
The issue before the court is whether or not, at the time of the incident, the defendant was the "owner" or "keeper" of the dog which allegedly bit Andrew Prucinsky, as those terms are defined by the statute.
It would appear from the reported cases that the defendant was not the "owner" of the dog at the time of the incident. Whether he can be deemed to have been the "keeper" of the dog on that occasion is not quite as clearly defined.
Our Appellate Court has held that someone who is temporarily caring for a dog as a favor for its owner is a "keeper" of the dog. See Murphy v.Buonato,
In the present case, the defendant states that he was not responsible for providing Martin with shelter, lodging or ongoing care. He merely did his aunt a favor and took the dog for a walk.
Whether the status of "keeper" can vest in someone whose time of possession of a dog is as relatively brief as a walk in the park is the issue before the court.
General Statutes §
In Dilion v. Burke, Superior Court, judicial district of New Britain at Hartford, Docket No. CV93 0529578S (January 28, 1997) (
In Murphy v. Buonato, supra,
The majority of the cases of other jurisdictions have held that the person in question must exercise some measure of custody, care or control over the dog. See, e.g., Hagenau v. Millard,
Neither party in the present case cited a decision where the custody or control consisted of a person merely taking a dog for a walk as a favor to the owner.
In Collins v. Kenealy,
Taking a dog for a walk in the park is not the kind of possession or control that the legislature contemplated when it promulgated the definition of "keeper" of a dog as one legally responsible for its bad behavior.
The defendant is not a "keeper" of Martin the dog as that term is defined by statute. The plaintiffs have not established the elements of the statutory cause of action under §
Count two is Diane S. Prucinsky's claim for bystander emotional distress and, as such, is wholly derivative of Andrew E. Prucinsky's claims in count one. Summary judgment having been granted as to the claims in count one, summary judgment must be and is granted as to count two as well. *Page 660