A woman who blamed her neighbor when his mother’s pit bull attacked her in 2021 will have her appeal of a court case in the matter aired this month by the state Appellate Court.
Annette Afonso was walking along Emilie Avenue in Oakville in 2021, when a pit bull allegedly attacked her “suddenly and without warning,” court records show. The defendant in the case, Isaiah Torres, lives on Emilie Avenue and owns a Chihuahua, but his mother’s pit bull named “Sticky” is the dog that attacked the plaintiff, according to court records.
Alfonso filed an appeal in the case after her original lawsuit again Torres was dismissed on a summary judgement by the Superior Court. Alfonso had claimed that Torres was Sticky’s “keeper” and therefore he was liable for her injuries and also that Torres negligently failed to restrain the dog despite knowing of its alleged “dangerous and aggressive nature.”
However, a court brief filed by Torres’ attorney says, the pit bull, known was owned by the defendant’s mother, Nancy Cortez, who resided in Bristol as of March 19, 2021. Neither she nor her dog resided with the defendant at 30 Emile Avenue, according to the brief.
“The plaintiff in this case seeks to impose liability on the defendant for injuries inflicted by a dog that he did not own or keep that occurred on a public street abutting the defendant’s property. The dog’s owner (the defendant’s mother) was present at the defendant’s home during the incident,” attorney Ashley A. Noel, who represents Torres, wrote in a brief in the appeals case.
“The Plaintiff chose not to pursue a claim against the dog’s owner and instead attempts to impose statutory and common law liability on the defendant based on the mere fact that the dog escaped from his yard after he put it outside on a leash at the request of the dog’s owner. Both claims fail as a matter of law,” Noel wrote.
Noel also noted that the defendant “was not the owner or the keeper of the dog within the meaning of (Connecticut law)” and “therefore cannot be held strictly liable for the harm inflicted by his mother’s dog” state law or under “a common law negligence theory.”
Noel wrote that “the Court found that the defendant could not be held liable under a common law negligence or premises liability theory. Since the defendant was not the owner or keeper of the dog that injured the plaintiff and the plaintiff was not injured on the defendant’s property,” according to the brief.
“As this Court has repeatedly held, he similarly cannot be held under a premises liability theory where the plaintiff sustained injuries on a public street that the defendant did not own or control. The Court should therefore affirm the decision of the trial court in its entirety,” Noel wrote.
However, Brendan K. Nelligan, the attorney for Alfonso, writes in his brief filed in the case, that the contention that only the Chihuahua lived at Torres’ home “was flatly and unambiguously contradicted by the affidavits submitted by the plaintiff in support of her objection. These affidavits established that the defendant had two dogs living at the premises.”
Further, the defendant’s claim “that he did not assume responsibility for possession and control of the dog while it was on his property … is flatly contradicted by his actions and testimony,” Nelligan wrote.
“Despite conflicting evidence concerning whether a pit bull was living at the defendant’s premises and the defendant’s own actions in attempting to secure the dog immediately prior to the attack, the trial court granted summary judgment,” Nelligan wrote. “This constituted error. The record before the trial court demonstrated conflicting issues of fact which called the defendant’s assertions in his affidavit into serious question. Furthermore, his actions on the date in question were sufficient to bring him within the ambit of the statutory term ‘keeper’” under state law.
According to information provided by the Judicial Department, Torres had testified at a deposition “that his mother and Sticky regularly had visited his residence and that, on a ‘handful’ of occasions, he watched Sticky overnight, which required the defendant to give Sticky food and water.”
“The defendant (Torres) testified that, on the day of the attack, he put Sticky and his Chihuahua outside on leashes that were tethered to the deck but that Sticky inexplicably had escaped from his leash. The defendant moved for summary judgment, arguing that there was no genuine issue of material fact that he was not Sticky’s keeper and that he ‘had no knowledge’ of the dog’s ‘vicious propensities,’” according the the information provided by the Judicial Department.
The department also noted that “in her objection to summary judgment, the plaintiff argued that issues of fact remained in light of the affidavits from the defendant’s neighbors reporting that they previously had observed two dogs at the defendant’s property acting ‘aggressively.’”
The trial court granted the defendant’s motion and rendered summary judgment in his favor.
Alfonso “claims on appeal that the trial court improperly found that there was no genuine issue of material fact with respect to whether the defendant was Sticky’s keeper because the neighbor’s affidavits state that “the owners of the property … had two dogs” and because “the defendant himself exerted control over (Sticky) just before the attack.”
She also argues that “there was substantial evidence that the defendant negligently failed to secure Sticky and that he was aware of the dog’s aggressive demeanor.”
But Noel wrote, “the plaintiff’s reliance on cases involving defective highways and/or sidewalks to support her argument that a property owner can be held liable for injuries occurring on an abutting public street (none of which involved a dog) ignores the nuance between a defendant’s duty over a dog versus a defendant’s duty over a property.”
The Connecticut Appellate Court will visit Quinnipiac University School of Law on Friday; presiding Judge Melanie L. Cradle, Judge Dawne G. Westbrook, and Judge Robin L. Wilson will hear the civil case (and another case) during the Appellate Court’s visit to the school at in the Brooke A. Goff Courtroom, 370 Bassett Road, North Haven.
