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POST v. ANNAND

September 1, 1992

SUZANNE M. POST, Plaintiff, against JAMES E. ANNAND, CONSTANCE ANNAND, DAVID ANNAND, THE BERKELEY DIVINITY SCHOOL OF YALE UNIVERSITY and THE EPISCOPAL DIOCESE OF CONNECTICUT, Defendants.


The opinion of the court was delivered by: GERARD L. GOETTEL

 In this dog eat dog world, anything is fair game for litigation in the federal courts. While it may not be news when a dog bites a man, it is notable when a dog bites a female minister. As compensation for her injuries, plaintiff seeks to take a bite out of the defendants' pocketbooks. Before us now is her motion for summary judgment against James and Constance Annand and the Berkeley Divinity School of Yale University.

 Suzanne Post was a graduate student at the Yale Divinity School where defendant James Annand was the Dean of the Berkeley Divinity School of Yale University. Annand lived in an apartment in a building owned by the Divinity School, which was known as the Berkeley Center. This building, actually an old converted mansion, served as the headquarters for the school and contained, in addition to the residence provided for Annand and his wife, a chapel, offices, a dining room, students' quarters, and rooms which were sometimes used for classes. The Annand apartment, located on the second floor of the Center, had a living room, galley-like kitchen, dining room, small bedroom and bathroom. The apartment was self-contained because its door could be locked. However, the fire exits from the second floor led through the apartment so at no time could it be deemed completely private. The Annands generally used the large kitchen of the building which was located on the first floor as well as using the other parts of the building to entertain. Suzanne Post lived on the third floor of the Center.

 The Annands had to leave on a business trip on November 29, 1990. The previous night, after chapel, they asked Ms. Post to come to their apartment to discuss caring for the dogs. Mrs. Annand was showing her how many scoops of food to put in the bowl when Rocky, apparently eager to get at the food, reared up and bit Post on the nose. *fn1" Post, now an Episcopal priest with her own ministry, obviously has a bone to pick as her injuries required substantial medical care, and Rocky is clearly in the doghouse. In dogged pursuit of damages for her trauma, she filed this suit, on the basis of diversity jurisdiction, in early 1992.

 Hounded by Connecticut's General Statute § 22-357 which imposes strict liability for dog bites on a dog's owner, see Woolf v. Chalker, 31 Conn. 121, 127 (1862); Maccarone v. Hawley, 7 Conn. App. 19, 507 A.2d 506, 508 (Conn. App. 1986), the defendants have foregone their obvious defense of improper venue in the hope that a federal court based in New York will somehow be persuaded that New York state's law, which does not create strict liability, should be applied instead. The defendants are barking up the wrong tree.

 In a diversity case, the court must look to the choice of law rules of the forum state to determine which state's substantive law to apply. Klaxon Co. v. Stentor Electric Manufacturing Co, 313 U.S. 487, 496-97, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Mattox v. News Syndicate Co., Inc., 176 F.2d 897, 900 (2d Cir.), cert. denied, 338 U.S. 858 (1949). Consulting our dog-earred copy of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), we see that under New York's choice of law rules, this court must apply the substantive tort law of the state that has the most significant relationship with the occurrence and with the parties. Machleder v. Diaz, 801 F.2d 46, 51 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 107 S. Ct. 1294, 94 L. Ed. 2d 150 (1987). The only New York contact with this litigation is the fact that the plaintiff resided here when the litigation commenced. (She now resides in Connecticut.) The dog bite occurred in Connecticut, the Divinity school and its facilities are located in Connecticut, and the Annands are residents, at least part-time, of Connecticut. In addition, the State of Connecticut has an important interest in regulating the conduct of dog-owners within its borders. Defendant's dogmatic insistence aside, these reasons dictate that Connecticut law must be applied.

 Unlike the ancient legal maxim, in Connecticut every dog is not entitled to one bite. Section 22-357 of the Connecticut General Statutes states in relevant part that "if any dog does any damage to the body of any person, the owner or keeper shall be liable for such damage except when such damage has been occasioned to the body of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog." There has been no suggestion that Post was trespassing or in any way annoying the dog, which would create an exception to the statute. See Doerfler v. Redding, 2 Conn. Cir. Ct. 694, 205 A.2d 502, 503 (Conn. Cir. 1964). Therefore, under this statute, the owners or keepers of the dog are liable.

 According to Fed. R. Civ. P. 56(c), summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Viewing the record in the light most favorable to the nonmoving party -- here, the Annands and the Divinity School -- we must determine whether a reasonable jury could find that the defendants were strictly liable for unleashing Rocky on the unsuspecting Suzanne Post.

 One who does not own a dog can nevertheless be strictly liable for a dog's bite if that person was keeping the dog at the time the injury was inflicted. See § 22-357; Falby v. Zarembski, 221 Conn. 14, 602 A.2d 1, 3 (Conn. 1992). The Divinity School asks, "Are we Rocky's keeper?" "Keeper" is defined as "any person, other than the owner, harboring or having in his possession any dog." Id.; Duhaime v. Mills, 1992 Conn. Super. LEXIS 1931, 1992 WL 154896 (Conn. Super. 1992). "To harbor a dog is to afford lodging, shelter or refuge to it . . . 'Possession cannot be fairly construed as anything short of the exercise of dominion and control over the dog . . .'" Falby v. Zarembski, 602 A.2d at 3 (citations omitted); Duhaime, supra. See Buturla v. St. Onge, 9 Conn. App. 495, 519 A.2d 1235, 1235-36 (Conn. App. 1987) (keeper of dog is one who exercises some control over the dog).

 Plaintiff suggests that the Divinity School falls within the framework of the statute. She notes out that Rocky had free access to the common parts of the Center, including the business offices, and argues that the School therefore harbored Rocky. In some dog bite cases involving landlords and tenants, access to common areas is an important factor in determining the liability of a landlord for a bite rendered by a dog owned by the tenant. For example, in Bailey v. Desanti, 36 Conn. Supp. 156, 414 A.2d 1187 (Conn. Super. 1980), the court found that landlords who allowed the dog to stay in a yard which was available to the tenants only in common with the other residents of the house had harbored the dog and were therefore keepers. In contrast, the court in Buturla v. St. Onge, 9 Conn. App. 495, 519 A.2d 1235, found that the landlord was not a keeper where the dog entered a common hallway only to go to and from the apartment in which he was kept.

 Rocky had almost unlimited access to the common areas of the Center and James Annand, as the Dean of the Divinity School, authorized the construction of a dog pen in the Center's yard. Plaintiff contends that these facts indicate that the Divinity School was keeping the dog. Her theory is that Rocky's unfettered access to all parts of the Center suggests that Rocky was not just the Annands' best friend but was nothing less than "the Divinity Dog." *fn2"

 Plaintiff's analysis is essentially the tail wagging the dog. Rocky's having access to common areas, without more evidence indicating an intent to give refuge to the dog or to control the dog's activities on the part of the School, is not a sufficient basis to collar the Divinity School. The School's acquiescence in Rocky's presence at the Center, similarly, does not mean he was kept by that institution. See Falby v. Zarembski, 602 A.2d at 3; Buturla, 9 Conn. App. 495, 519 A.2d 1235. To show that a defendant harbored a dog for the purpose of § 22-357 requires that it be shown that the person treated the dog as living in his home and undertook to control the dog's actions. Buturla, 519 ...


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