Editorial: New Teeth For Tort Claims

The Connecticut Law Tribune

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Any lawyer who deals with real estate needs to know about a Connecticut Supreme Court decision a year ago that may have expanded the potential for landlord and other property owner liability. It is a "sleeper," probably overlooked by many because it comes cloaked in the guise of a dog bite case.

In Giacalone v. Housing Authority of the Town of Wallingford (2012), a tenant of the housing authority owned a dog that bit another tenant, Patricia Giacalone. Giacalone's claim should have been simple enough to make, at least as to the dog's owner, because Connecticut has a strict liability statute, Connecticut General Statutes Sec. 22-357, making an "owner or keeper" of dog generally liable for any injury to a person or damage to property. But here, Giacalone sued her landlord, the housing authority, in common-law negligence under Sec. 8-67 as "any person injured in person or property within boundaries of property owned or controlled by an authority."

Giacalone alleged that two years before the attack, the housing authority had instructed the owner to remove his dog but never followed up The lease prohibited keeping a dog without permission and apparently the dog-owning tenant never had that permission. Giacolone further claimed that the housing authority failed to keep her safe from dog attacks and never warned her of the dangerous dog.

The trial court, apparently confusing the negligence claim with the strict liability claim, granted the housing authority's motion to dismiss on the ground that only an owner or keeper could be liable. The Appellate Court reversed and remanded directing the trial court to consider the holding in the Supreme Court's 2008 decision in Auster v. Norwalk United Methodist Church, 286 Conn. 152, in which the Supreme Court "recognized a broader theory of common-law liability" that could extend to an employer who provided housing to an employee and knew the employee's dog was dangerous, having bitten another employee. The court granted certification snatching the case from the jaws of the trial court. In the unanimous decision of the five-justice panel written by Justice Lubbie Harper Jr., the court held that the Appellate Court properly determined that pursuant to Auster the housing authority could be liable.

Fair enough. The strict liability statute for owners and keepers does not preempt the common-law right to sue for negligence, in this case against the negligent landlord who knew there was a dangerous dog and failed to have the dog restrained or removed and to warn others.

What is remarkable, however, is the sweep of the court's language when it described the "dangerous conditions" "implicated" in the common-law duty to protect others from harm: "Whether a dangerous condition is created by rats, snow, rotting wood or vicious dogs, these differing facts present no fundamental ground of distinction. What defines the landlord's duty is the obligation to take reasonable measures to ensure that the space over which it exercises dominion is safe from dangers, and a landlord may incur liability by failing to do so."

In a footnote, the court emphasized that the landlord would not be liable for failing to restrain the dog, because reasoned the court, that liability was limited to the owner or the keeper under C.G.S. Sec. 22-357, but that "it is the landlord's control over the space, not its control over the potential danger, that gives rise to liability."

This untempered view that mere control over space, entirely separated from the ability to control the danger, cannot be what the court meant and should not be the rule by which a landlord's or any other property owner's duty to others should be measured. The problem may be that the court has not clearly articulated how the intentional abrogation of common-law scienter by C.G.S. Sec. 22-357 is separate and apart from the knowledge and ability to abate the danger, presumably gained from reasonable inquiry and control, that is required for common-law negligence. Until the court has the opportunity to speak further to this important distinction, landlords and all other property owners may be at greater risk.•

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