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`DOCKET NO.: HHB CV-l6-6033741-S
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`STEVEN ROBERT MADORE PPA
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`COLLEEN MADORE
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`V.
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`ISCC, LLC, ET AL.
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF
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`a
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`NEW BRITAIN
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`NOVEMBER 14, 2017
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`Defendant ISCC LLC’s Motion for Summa
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`Jud ment
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`0. 138.00
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`MEMORANDUM OF DECISION
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`This action arises from a dog bite that occurred on March 30, 2015 at an ice skating rink
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`and recreational sports facility in Simsbury, Connecticut. The plaintiff, Steven Robert Madore
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`ppa Colleen Madore, brought suit against the defendants ISCC, LLC (“ISCC”), the lessee and
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`operator of the facility, and Sheri Bonawitz (“Bonawitz”), the owner of the dog, for injuries
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`allegedly suffered by the minor plaintiff as a result of the bite.1 ISCC moves for summary
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`judgment as to the first count of the plaintiff’s complaint on grounds that there is no genuine
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`issue of material fact that (1) it did not owe a common—law duty to the plaintiff because it did
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`not know of the dangerous propensities of the dog at issue and the incident did not occur in a
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`common area of the premises; and (2) it did not owe a contractual duty to the plaintiff under its
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`lease agreement for the premises. The plaintiff objects to the motion for summary judgment on
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`grounds that (1) ISCC is under a contractual duty to create a recreational facility in a safe
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`condition in all respects; and/or (2) ISCC is under a common—law duty to keep the premises
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`reasonably safe from dangers.
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`DISCUSSION
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`1. Summary Judgment Standard
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`“[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any
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`other proof submitted show that there is no genuine issue as to any material fact and that the
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`moving party is entitled to judgment as a matter of law. .
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`In deciding a motion for summary
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`judgment, the trial court must View the evidence in the light most favorable to the nonmoving
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`party.” (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116
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`A.3d 1195 (2015). “In seeking summary judgment, it is the movant who has the burden of
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`showing the nonexistence of any issue of fact. The courts are in entire agreement that the
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`moving party for summary judgment has the burden of showing the absence of any genuine
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`issue as to all the material facts, which, under applicable principles of substantive law, entitle
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`him to a judgment as a matter of law.” (Internal quotation marks omitted.) Romprey v. Safeco
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`Ins. C0. ofAmerica, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). “Once the moving party has
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`met its burden .
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`.
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`. the opposing party must present evidence that demonstrates the existence of
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`some disputed factual issue.” (Internal quotation marks omitted.) Ferri v. P0well~Ferri, 317
`Conn. 223, 228, 116 A.3d 297 (2015)..
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`“[T]he issue of whether a defendant owes a duty of care is an appropriate matter for
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`summary judgment because the question is one of law.” (Internal quotation marks omitted.)
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`Mozeleski v. Thomas, 76 Conn. App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823
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`A.2d 1221 (2003). “The existence of a duty is a question of law and only if such a duty is found
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`to exist does the trier of fact then determine whether the defendant violated that duty in the
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`particular situation at hand.” (Internal quotation marks omitted.) Sic V. Nunan, 307 Conn. 399,
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`407, 54 A.3d 553 (2012).
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`II. Undisputed Facts
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`The following facts are not in dispute. The minor plaintiff was bitten by a dog on
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`March 30, 2015, when he was at the ice skating rink and recreational sports facility leased to
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`and operated by ISCC in Simsbury, Connecticut. The dog, a six year old Shetland Sheepdog
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`named Bundles, was owned by Bonawitz. At the time of the incident, the dog was on a leash at
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`the foot of its owner behind a fully enclosed counter area that was not open to the public and
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`was only accessible through a closed office door upon which was posted a sign indicating that
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`“Tournament Officials Only” were allowed in the area. The minor plaintiff’s aunt opened the
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`door and entered the restricted area. The minor plaintiff followed his aunt through the opened
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`door, entered the enclosed counter area, and was bitten by the dog.
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`ISCC was not the owner or keeper of the dog.
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`ISCC had no knowledge of any
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`dangerous or vicious propensities of the dog that bit the minor plaintiff. Prior to the March 30
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`incident, the dog had never bitten anyone or exhibited any aggressive tendencies. Dogs in
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`general were not prohibited by ISCC from being in the premises. The dog that bit the plaintiff
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`had been at the premises at least ten times prior to the March 30 incident, was known to be
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`friendly, and was always on a leash. The lease agreement pursuant to which ISCC occupies the
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`premises and operates the facility contains a clause that requires ISCC to keep the facility in a
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`good and safe condition in all respects. The lease does not prohibit ISCC from permitting dogs
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`in the facility.
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`III. Negligence
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`The essential elements of a negligence action are: duty, breach of that duty, causation
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`and actual injury. LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). “Duty is
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`a legal conclusion about relationships between individuals, made after the fact, and [is]
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`imperative to a negligence cause of action. The nature of the duty, and the specific persons to
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`whom it
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`is owed, are determined by the circumstances surrounding the conduct of the
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`individual.” (Internal quotation marks omitted.) Id. “Liability for injuries caused by defective
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`premises .
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`.
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`. does not depend on who holds legal title, but rather on who has possession and
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`control of the property.” Id. A person in control of premises has a duty to an invitee of the
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`premises to use reasonable care to inspect and maintain the premises and to make the premises
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`reasonably safe, a duty to warn or guard an invitee from being injured by reason of any defects
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`the invitee could not reasonably be expected to discover, and a duty to conduct activities on the
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`premises in such a way so as not to injure the invitee. Fleming v. Garnett, 231 Conn. 77, 83-
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`84, 646 A.2d 1308 (1994); Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973); Warren
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`v. Stanclijj’, 157 Conn. 216, 218, 251 A.2d 74 (1968).
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`A. Common-law Duty
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`As previously noted by the court in its decision denying ISCC’s motion to strike the
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`first count of the plaintiff’s complaint,
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`[t]he viability of premises liability actions brought
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`2“
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`against owners, landlords or other possessors of land arising from dog bite injuries occurring on
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`their property has been recognized by our appellate courts.
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`See Giacalone v. Housing
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`Authority, 306 Conn. 399, 51 A.3d 352 (2012) (permitting common-law negligence claim in
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`dog bite case against landlord who is not the owner or keeper of the dog); Auster v. Norwalk
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`United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008) (remanding for new trial
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`plaintiffs common—law negligence claim against defendant church where visitor was bitten
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`while on church premises by dog of church employee); and Stokes v. Lyddy, 75 Conn. App.
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`252, 815 A.2d 263 (2003) (separately addressing issues of premises liability and liability for
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`2 See Memorandum of Decision dated February 15, 2017 and docketed at Entry No. 125.00 (“Motion to Strike
`Decision”).
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`\
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`injuries caused by animals in action against landlord by nontenant bitten by tenant’s dog on
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`public sidewalk).”
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`Most recently, in Giacalone v. Housing Authority of Wallingford, supra, 306 Conn.
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`407-08, our Supreme Court held that “[a]s a matter of well settled common law, it is, of course,
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`the duty of a landlord to use reasonable care to keep in a reasonably safe condition the parts of
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`the premises over which he reserves control.... The ultimate test of the duty is to be found in
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`the reasonable foreseeability of harm resulting from a failure to exercise reasonable care to
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`keep the premises reasonably safe. . .. The prevailing common-law conception of the dangerous
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`conditions implicated in this duty, moreover, certainly is capacious enough readily to.
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`. encompass threats from animals,
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`including known vicious dogs. The scope of the term
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`‘conditions’ is well illustrated by the dangerous animals in Williams [v. Milner Hotels, Co., 130
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`Conn. 507, 511, 36 A.2d 20 (1944)], in which an innkeeper was obligated, once placed on
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`notice to take measures to combat encroaching rats to maintain safe conditions at an inn. By
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`the same reasoning, a landlord, in exercising the closely analogous duty to alleviate dangerous
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`conditions in areas of a premises over which it retains control, must take reasonable steps to
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`alleviate the dangerous condition created by the presence of a dog with known Vicious
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`tendencies in the common areas of the property.” (Citations omitted; internal quotation marks
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`omitted.)
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`In the Motion to Strike Decision, this court held that the plaintiffs failure to allege that
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`ISCC knew of the dangerous or vicious propensities of Bonawitz’s dog did not render the
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`complaint legally insufficient because, under this court’s interpretation of the case, Giacalone
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`left the door open for plaintiffs to pursue claims of common-law negligence under factual
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`scenarios involving dogs without known vicious tendencies.
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`ISCC renews its argument here
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`that it owes no duty to the minor plaintiff because it did not have knowledge of the dog’s
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`vicious propensities.
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`It
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`is undisputed that
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`ISCC did not know of the dog’s vicious
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`propensities.3 However, consistent with its Motion to Strike Decision, this court does not find
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`this isolated fact to be dispositive of the issue of whether ISCC can be held liable to the minor
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`plaintiff under a common-law theory of premises liability.
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`ISCC’s more compelling argument, which is now supported by evidence that was not
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`available to the court in connection with the motion to strike, is that ISCC does not owe a duty
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`to the minor plaintiff because the dog bite occurred in an enclosed area of ISCC’S premises that
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`was not open to members of the general public, such as the minor plaintiff. The undisputed
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`facts of this case are that the dog was not roaming loose in the lobby of the rink or other area of
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`the facility that was open to the general public. To the contrary, the dog was on a leash, at the
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`foot of its owner, behind a closed door, in a fully enclosed area where members of the general
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`public were not permitted to enter. These facts, buttressed with the fact that the dog was not
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`known to ISCC to have any dangerous or vicious tendencies, leads this court to conclude that
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`ISCC did not owe a common law duty to the plaintiff under the legal principles discussed in
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`Giacalone v. Housing Authority of Wallingford, supra, 306 Conn. 407-08.
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`In so holding,
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`the court rejects the minor plaintiff’s argument that irrespective of
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`ISCC’s knowledge of a dog’s Vicious tendencies ISCC owes a common—law duty to all invitees
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`to make its skating rink facility “reasonably safe” from dangers, and therefore, breached its
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`duty when it had an “open door” policy for dogs. The undisputed facts of this case do not
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`demonstrate that ISCC failed to exercise'reasonable care to keep the premises reasonably safe
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`for invitees. Moreover, the plaintiff s argument invites the court to impose a strict liability
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`3 The plaintiff conceded this fact and the undisputed evidence in this case establishes it.
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`6
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`standard upon any owner, landlord or other possessor of land upon whose property a dog bite
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`occurs simply because the owner, landlord or possessor did not prohibit the dog from being on
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`its property in the first place. The court declines the invitation as the plaintiff’s position is
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`contrary to the common law and not authorized by statute.
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`B. Contractual Duty
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`The plaintiff also alleges that the lease agreement pursuant to which ISCC occupied the
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`premises creates a direct duty of care owed by ISCC to the minor plaintiff to keep the premises
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`safe for children.4 ISCC responds that it does not owe a contractual duty to the minor plaintiff
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`because the lease did not impose upon it any express obligation, requirement, rule, or term
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`regarding dogs in the facility and the general maintenance and safety provision of the lease
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`upon which the plaintiff relies is not sufficient to impose such a duty.5
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`Our Supreme Court has recognized that a duty to use care may arise from a contract.
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`Coburn v. Lenox Homes, Inc, 186 Conn. 370, 375, 441 A.2d 620 (1982). However, this court
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`does not accept, and the case law cited by the plaintiff, including Gazo v. City ofStamford, 255
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`Conn. 245, 765 A.2d. 505 (2001), does not support the proposition that a lessee who agrees to
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`keep a lessor’s property in good and safe condition is liable under a theory of breach of a
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`contractual duty for any injury suffered by an invitee while on the leased premises absent a
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`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.
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`5 See footnote 4.
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`finding that the invitee’s injuries were caused by the lessee’s negligent performance of its
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`contract with the lessor.
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`Here, the ISCC lease is silent on the issue of whether dogs are permitted on the leased
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`premises. The general contractual obligation imposed upon ISCC to keep the leased premises
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`in “good, safe, and habitable condition” does not obligate ISCC to ban dogs from the premises.
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`Moreover, such contract language is not sufficient to impose upon ISCC a direct duty of care to
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`the minor plaintiff to keep him safe from any harm that may be caused by a dog on the
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`premises.6
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`CONCLUSION
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`On the undisputed facts of this case and for the reasons stated above, the court finds as a
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`matter of law that ISCC did not owe a common-law or contractual duty of care to the minor
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`plaintiff as alleged. Consequently, the defendant ISCC’s motion for summary judgment is
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`GRANTED.
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`Morgan, J.
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`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.
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