SC Year In Review: Boundary Lines, Dog Bites And Variances
306 Conn. 391 (2012)
The short version of the lesson learned in this case is that sometimes you have to do unneighborly things to protect your property rights. In this per curium decision, the Court again concluded that it should not have granted certification, and is so ruling let stand the appellate and trial court decisions that the owners of two neighboring upland lots acquired a prescriptive easement to the beach by crossing the beachfront property owner's parcel without permission since 1972. The only twist in the case was that a walkway the neighbors had constructed without benefit of permits had to be removed. The beachfront owner argued unsuccessfully that the illegal walkway somehow negated the prescriptive rights. The question was not properly preserved and raised on appeal and the Court did not consider it.
Something to Chew On
Giacalone v. Wallingford Housing Authority
306 Conn. 399 (2012)
Dog bite case. Now you're talking. For those of us in the real estate development business, for the last few years without much to do, our days have been filled with slip-and-fall and dog bite cases, so this one about the liability of the Housing Authority of the Town of Wallingford is of great interest and something we can sink our teeth into. We all know the "one bite" rule. If your dog has already bitten somebody, you know that your dog is potentially dangerous and you are going to be responsible the second time the dog bites somebody. Connecticut has a statutory strict liability rule at § 22-357 that makes the owner or keeper of a dog strictly liable, even on the first bite, regardless of the common law rule. In this made-for-a-final-exam question for first-year torts class, if the landlord — not an owner or keeper — knew that the dog was dangerous, but had nothing to do with the direct care or control over the dog, could that landlord be held responsible under the common law rule?
The end result in the case was foretold by the Court's 2008 decision in Auster v. Norwalk United Methodist Church, 286 Conn. 152, 165 in which the 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. When the Court starts citing 1884, 1914 and 1928 decisions and uses phrases like "ordinary — indeed, hoary — principles of common-law liability could be brought to bear," you know you are on a trip down the memory lane of common law. Old vocabulary comes to mind, like "scienter."
And here is the crux of the decision "We conclude that a landlord's common-law duty to alleviate known dangers includes dangers posed by vicious dogs, …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 puts its holding on a short leash lest it be missed by the reader who might otherwise go barking up the wrong tree: "It is the landlord's control over the space, not its control over the potential danger, that gives rise to liability." That is the take away for anyone involved in real estate, which of course is everyone, and its impact obviously goes far beyond miscreant mutts.
Don't Believe Everything You Read