throbber

`
`DOCKET NO.: HHB CV-l6-6033741-S
`
`STEVEN ROBERT MADORE PPA
`
`COLLEEN MADORE
`
`V.
`
`ISCC, LLC, ET AL.
`
`:
`
`:
`
`:
`
`:
`
`SUPERIOR COURT
`
`JUDICIAL DISTRICT OF
`
`a
`
`NEW BRITAIN
`
`NOVEMBER 14, 2017
`
`Defendant ISCC LLC’s Motion for Summa
`
`Jud ment
`
`0. 138.00
`
`MEMORANDUM OF DECISION
`
`This action arises from a dog bite that occurred on March 30, 2015 at an ice skating rink
`
`and recreational sports facility in Simsbury, Connecticut. The plaintiff, Steven Robert Madore
`
`ppa Colleen Madore, brought suit against the defendants ISCC, LLC (“ISCC”), the lessee and
`
`operator of the facility, and Sheri Bonawitz (“Bonawitz”), the owner of the dog, for injuries
`
`allegedly suffered by the minor plaintiff as a result of the bite.1 ISCC moves for summary
`
`judgment as to the first count of the plaintiff’s complaint on grounds that there is no genuine
`
`issue of material fact that (1) it did not owe a common—law duty to the plaintiff because it did
`
`not know of the dangerous propensities of the dog at issue and the incident did not occur in a
`
`common area of the premises; and (2) it did not owe a contractual duty to the plaintiff under its
`
`lease agreement for the premises. The plaintiff objects to the motion for summary judgment on
`
`grounds that (1) ISCC is under a contractual duty to create a recreational facility in a safe
`
`condition in all respects; and/or (2) ISCC is under a common—law duty to keep the premises
`
`reasonably safe from dangers.
`
`DISCUSSION
`
`1. Summary Judgment Standard
`
`
`
`imhoo-HO‘Iaaa-‘ns‘
`
`
`:iO'lOEHISlGmomnF‘
`NIVIIHGMEN.
`88'8U8hI“UN[[02
`2:: «lbw (Lei/Mi“
`
`1
`
`JL/al/arh(m)m 46¢; HM ¢£0M
`HWHJQQOFL,WW7/
`figs" M er-rfr" ”40%!
`
`

`

`
`
`
`
`“[S]ummary 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 deciding a motion for summary
`
`judgment, the trial court must View the evidence in the light most favorable to the nonmoving
`
`party.” (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116
`
`A.3d 1195 (2015). “In seeking summary judgment, it is the movant who has the burden of
`
`showing the nonexistence of any issue of fact. The courts are in entire agreement that the
`
`moving party for summary judgment has the burden of showing the absence of any genuine
`
`issue as to all the material facts, which, under applicable principles of substantive law, entitle
`
`him to a judgment as a matter of law.” (Internal quotation marks omitted.) Romprey v. Safeco
`
`Ins. C0. ofAmerica, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). “Once the moving party has
`
`met its burden .
`
`.
`
`. the opposing party must present evidence that demonstrates the existence of
`
`some disputed factual issue.” (Internal quotation marks omitted.) Ferri v. P0well~Ferri, 317
`Conn. 223, 228, 116 A.3d 297 (2015)..
`
`“[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.)
`
`Mozeleski v. Thomas, 76 Conn. App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823
`
`A.2d 1221 (2003). “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 violated that duty in the
`
`particular situation at hand.” (Internal quotation marks omitted.) Sic V. Nunan, 307 Conn. 399,
`
`407, 54 A.3d 553 (2012).
`
`II. Undisputed Facts
`
`

`

`
`
`The following facts are not in dispute. The minor plaintiff was bitten by a dog on
`
`March 30, 2015, when he was at the ice skating rink and recreational sports facility leased to
`
`and operated by ISCC in Simsbury, Connecticut. The dog, a six year old Shetland Sheepdog
`
`named Bundles, was owned by Bonawitz. At the time of the incident, the dog was on a leash at
`
`the foot of its owner behind a fully enclosed counter area that was not open to the public and
`
`was only accessible through a closed office door upon which was posted a sign indicating that
`
`“Tournament Officials Only” were allowed in the area. The minor plaintiff’s aunt opened the
`
`door and entered the restricted area. The minor plaintiff followed his aunt through the opened
`
`door, entered the enclosed counter area, and was bitten by the dog.
`
`ISCC was not the owner or keeper of the dog.
`
`ISCC had no knowledge of any
`
`dangerous or vicious propensities of the dog that bit the minor plaintiff. Prior to the March 30
`
`incident, the dog had never bitten anyone or exhibited any aggressive tendencies. Dogs in
`
`general were not prohibited by ISCC from being in the premises. The dog that bit the plaintiff
`
`had been at the premises at least ten times prior to the March 30 incident, was known to be
`
`friendly, and was always on a leash. The lease agreement pursuant to which ISCC occupies the
`
`premises and operates the facility contains a clause that requires ISCC to keep the facility in a
`
`good and safe condition in all respects. The lease does not prohibit ISCC from permitting dogs
`
`in the facility.
`
`III. Negligence
`
`The essential elements of a negligence action are: duty, breach of that duty, causation
`
`and actual injury. LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). “Duty is
`
`a legal conclusion about relationships between individuals, made after the fact, and [is]
`
`imperative to a negligence cause of action. The nature of the duty, and the specific persons to
`
`

`

`
`
`
`
`whom it
`
`is owed, are determined by the circumstances surrounding the conduct of the
`
`individual.” (Internal quotation marks omitted.) Id. “Liability for injuries caused by defective
`
`premises .
`
`.
`
`. does not depend on who holds legal title, but rather on who has possession and
`
`control of the property.” Id. A person in control of premises has a duty to an invitee of the
`
`premises to use reasonable care to inspect and maintain the premises and to make the premises
`
`reasonably safe, a duty to warn or guard an invitee from being injured by reason of any defects
`
`the invitee could not reasonably be expected to discover, and a duty to conduct activities on the
`
`premises in such a way so as not to injure the invitee. Fleming v. Garnett, 231 Conn. 77, 83-
`
`84, 646 A.2d 1308 (1994); Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973); Warren
`
`v. Stanclijj’, 157 Conn. 216, 218, 251 A.2d 74 (1968).
`
`A. Common-law Duty
`
`As previously noted by the court in its decision denying ISCC’s motion to strike the
`
`first count of the plaintiff’s complaint,
`
`[t]he viability of premises liability actions brought
`
`2“
`
`against owners, landlords or other possessors of land arising from dog bite injuries occurring on
`
`their property has been recognized by our appellate courts.
`
`See Giacalone v. Housing
`
`Authority, 306 Conn. 399, 51 A.3d 352 (2012) (permitting common-law negligence claim in
`
`dog bite case against landlord who is not the owner or keeper of the dog); Auster v. Norwalk
`
`United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008) (remanding for new trial
`
`plaintiffs common—law negligence claim against defendant church where visitor was bitten
`
`while on church premises by dog of church employee); and Stokes v. Lyddy, 75 Conn. App.
`
`252, 815 A.2d 263 (2003) (separately addressing issues of premises liability and liability for
`
`2 See Memorandum of Decision dated February 15, 2017 and docketed at Entry No. 125.00 (“Motion to Strike
`Decision”).
`
`

`

`
`
`\
`
`injuries caused by animals in action against landlord by nontenant bitten by tenant’s dog on
`
`public sidewalk).”
`
`Most recently, in Giacalone v. Housing Authority of Wallingford, supra, 306 Conn.
`
`407-08, our Supreme Court held that “[a]s a matter of well settled common law, it is, of course,
`
`the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of
`
`the premises over which he reserves control.... The ultimate test of the duty is to be found in
`
`the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to
`
`keep the premises reasonably safe. . .. The prevailing common-law conception of the dangerous
`
`conditions implicated in this duty, moreover, certainly is capacious enough readily to.
`
`. encompass threats from animals,
`
`including known vicious dogs. The scope of the term
`
`‘conditions’ is well illustrated by the dangerous animals in Williams [v. Milner Hotels, Co., 130
`
`Conn. 507, 511, 36 A.2d 20 (1944)], in which an innkeeper was obligated, once placed on
`
`notice to take measures to combat encroaching rats to maintain safe conditions at an inn. By
`
`the same reasoning, a landlord, in exercising the closely analogous duty to alleviate dangerous
`
`conditions in areas of a premises over which it retains control, 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.” (Citations omitted; internal quotation marks
`
`omitted.)
`
`In the Motion to Strike Decision, this court held that the plaintiffs failure to allege that
`
`ISCC knew of the dangerous or vicious propensities of Bonawitz’s dog did not render the
`
`complaint legally insufficient because, under this court’s interpretation of the case, Giacalone
`
`left the door open for plaintiffs to pursue claims of common-law negligence under factual
`
`scenarios involving dogs without known vicious tendencies.
`
`ISCC renews its argument here
`
`

`

`
`
`
`
`that it owes no duty to the minor plaintiff because it did not have knowledge of the dog’s
`
`vicious propensities.
`
`It
`
`is undisputed that
`
`ISCC did not know of the dog’s vicious
`
`propensities.3 However, consistent with its Motion to Strike Decision, this court does not find
`
`this isolated fact to be dispositive of the issue of whether ISCC can be held liable to the minor
`
`plaintiff under a common-law theory of premises liability.
`
`ISCC’s more compelling argument, which is now supported by evidence that was not
`
`available to the court in connection with the motion to strike, is that ISCC does not owe a duty
`
`to the minor plaintiff because the dog bite occurred in an enclosed area of ISCC’S premises that
`
`was not open to members of the general public, such as the minor plaintiff. The undisputed
`
`facts of this case are that the dog was not roaming loose in the lobby of the rink or other area of
`
`the facility that was open to the general public. To the contrary, the dog was on a leash, at the
`
`foot of its owner, behind a closed door, in a fully enclosed area where members of the general
`
`public were not permitted to enter. These facts, buttressed with the fact that the dog was not
`
`known to ISCC to have any dangerous or vicious tendencies, leads this court to conclude that
`
`ISCC did not owe a common law duty to the plaintiff under the legal principles discussed in
`
`Giacalone v. Housing Authority of Wallingford, supra, 306 Conn. 407-08.
`
`In so holding,
`
`the court rejects the minor plaintiff’s argument that irrespective of
`
`ISCC’s knowledge of a dog’s Vicious tendencies ISCC owes a common—law duty to all invitees
`
`to make its skating rink facility “reasonably safe” from dangers, and therefore, breached its
`
`duty when it had an “open door” policy for dogs. The undisputed facts of this case do not
`
`demonstrate that ISCC failed to exercise'reasonable care to keep the premises reasonably safe
`
`for invitees. Moreover, the plaintiff s argument invites the court to impose a strict liability
`
`3 The plaintiff conceded this fact and the undisputed evidence in this case establishes it.
`
`6
`
`

`

`
`
`standard upon any owner, landlord or other possessor of land upon whose property a dog bite
`
`occurs simply because the owner, landlord or possessor did not prohibit the dog from being on
`
`its property in the first place. The court declines the invitation as the plaintiff’s position is
`
`contrary to the common law and not authorized by statute.
`
`B. Contractual Duty
`
`The plaintiff also alleges that the lease agreement pursuant to which ISCC occupied the
`
`premises creates a direct duty of care owed by ISCC to the minor plaintiff to keep the premises
`
`safe for children.4 ISCC responds that it does not owe a contractual duty to the minor plaintiff
`
`because the lease did not impose upon it any express obligation, requirement, rule, or term
`
`regarding dogs in the facility and the general maintenance and safety provision of the lease
`
`upon which the plaintiff relies is not sufficient to impose such a duty.5
`
`Our Supreme Court has recognized that a duty to use care may arise from a contract.
`
`Coburn v. Lenox Homes, Inc, 186 Conn. 370, 375, 441 A.2d 620 (1982). However, this court
`
`does not accept, and the case law cited by the plaintiff, including Gazo v. City ofStamford, 255
`
`Conn. 245, 765 A.2d. 505 (2001), does not support the proposition that a lessee who agrees to
`
`keep a lessor’s property in good and safe condition is liable under a theory of breach of a
`
`contractual duty for any injury suffered by an invitee while on the leased premises absent a
`
`4 While the plaintiff claims that the lease imposes upon ISCC a duty to “keep the premises safe for children” the
`express language of the lease does not specifically reference children. Rather, the specific lease language upon
`which the plaintiff relies provides as follows: “3.4 MAINTENANCE OF LEASED PREMISES: Lessee shall
`maintain the Leased Premises and improvements and appurtenances, including all landscaping, in good, safe, and
`habitable condition in all respects, and in any event in a condition satisfactory to Lessor in its reasonable
`discretion.” Moreover, ISCC is not an original party to the lease and neither the plaintiff nor ISCC submitted to
`the court for its consideration the assigmnent and assumption agreement pursuant to which ISCC acquired its
`leasehold interest in the premises. However, the lease language quoted above is not disputed by the parties and
`ISCC admitted in its answer that pursuant to section 3.4 of the lease it was obligated to maintain the facility “in a
`good and safe condition in all respects.” See Answer dated March 16, 2017 and docketed as Entry No. 131.00.
`
`5 See footnote 4.
`
`
`
`

`

`
`
`
`
`finding that the invitee’s injuries were caused by the lessee’s negligent performance of its
`
`contract with the lessor.
`
`Here, the ISCC lease is silent on the issue of whether dogs are permitted on the leased
`
`premises. The general contractual obligation imposed upon ISCC to keep the leased premises
`
`in “good, safe, and habitable condition” does not obligate ISCC to ban dogs from the premises.
`
`Moreover, such contract language is not sufficient to impose upon ISCC a direct duty of care to
`
`the minor plaintiff to keep him safe from any harm that may be caused by a dog on the
`
`premises.6
`
`CONCLUSION
`
`On the undisputed facts of this case and for the reasons stated above, the court finds as a
`
`matter of law that ISCC did not owe a common-law or contractual duty of care to the minor
`
`plaintiff as alleged. Consequently, the defendant ISCC’s motion for summary judgment is
`
`GRANTED.
`
`Morgan, J.
`
`6 The court does not address ISCC’s argument that the plaintiff may be attempting, impermissibly, to bring “some
`kind of third party beneficiary claim” because the plaintiff has not alleged in the complaint nor argued in the
`objection to ISCC’s motion for summary judgment that the plaintiff was a third party beneficiary under ISCC’s
`lease with its landlord.
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.