The Annands do not deny that they were keeping Rocky who apparently was not licensed to anyone but had a nose for trouble. Therefore, they are liable under § 22-357 for the injuries suffered by Post. Whether the Divinity School should be held liable gives us pause.
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."
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 A.2d at 1236; Salvatore v. Mattessich, 1992 Conn. Super. LEXIS 628, 1992 WL 49984 (Conn. Super. 1992); Vasquez v. Hooks, 1992 Conn. Super. 325, 1992 WL 32549 (Conn. Super. 1992).
The importance of knowing the answer to the question of control is underscored by the recent Connecticut case of Falby v. Zarembski, 221 Conn. 14, 602 A.2d 1. There, an employee of a home modernization contractor brought his pit bull terrier to a job site. The president of that corporation knew that the employee brought the dog to the site and acquiesced in the dog's presence although he could have barred the dog from the work premises. At the work site, the president and other employees would pet the dog. After a suit was filed by a postal carrier who had been bitten by the dog when delivering mail to the home being remodelled, the court held that the contracting firm was not a keeper of the dog. The basis for that decision was that there was no evidence that the contractor fed, watered, housed, or otherwise cared for the dog, nor that it exercised any control over the actions of the dog. The court found that the contractor's control of the work site, by itself, did not convert it into a keeper of the dog and that strict liability could be imposed only when it has been shown that the defendant harbored or controlled the dog. In addition, the court did not agree that the contractor's allowing the dog to be kept on the site during work hours signified an intent to harbor the animal.
Plaintiff had originally contended that Rocky was a stray who had been taken in by the Divinity School. Discovery, however, clearly established, and the plaintiff now concedes, that Rocky belonged to the Annands' son, David, and lived at the Annands home in Rhode Island. When it came time for the Annands to return to the Divinity School for the new semester, their son, David, was traveling in distant places. They were compelled, therefore, to keep Rocky at the Divinity School along with their own dog, Apollo.
The fact that a dog legally kept at an institution may receive substantial attention and even care from non-owners would not seem to make the institution either the owner or harborer of the dog under Connecticut law. Consequently, we conclude that the Divinity School, unlike the Annands, has no liability for this dog bite.
Plaintiff's motion for summary judgment is granted with respect to James and Constance Annand and denied with respect to the Berkeley Divinity School. The question of damages will be set for trial.
Dated: White Plains, N.Y.
September 1, 1992
GERARD L. GOETTEL