Ryan McKeen (00:04):
Hi everybody. It’s a attorney, Ryan McKeen. I’m here with attorney Matt Eagan and today we’re here to talk about a really big case in Connecticut appellate law concerning dog bites. The case Isha Sen versus Tsongas. And we have attorney Matt Eagan on with us who won the case before the appellate court. Good morning, Matt. Good morning, Ryan. How are you? I’m doing well, Matt. Matt, can you explain to us dog bite law in Connecticut in general?
Matt Eagan (00:31):
So in general the general statute 223-57 imposes strict liability on the owner or keeper of a dog for you know for our dog bite. This case was a little bit different because it involved not the owner and the keeper of the dog, but the landlord of you know, the apartment building where the the dog lived.
Ryan McKeen (01:01):
So when you mean strict liability, so it doesn’t matter if the owner did anything wrong when the dog bit, it just matters that that they own the dog or they were in control of the dog and the dog bit somebody correct.
Matt Eagan (01:14):
That’s correct. With certain exceptions such as one of them is, is taunting or taunting the dog. It’s if somebody’s taunting the dog or somebody has, has sort of broken in, you know, obviously there are certain exceptions to that, but in general, yes, the owner of a dog is liable whether they are at fault, whether they had notice of the fact that the dog might bite somebody there, they’re liable.
Ryan McKeen (01:43):
And can you tell us about what happened to [inaudible] or what, what is alleged or what is, what is alleged to have happened with Isha Sen in this case?
Matt Eagan (01:55):
Sure. So she lived on the second floor of a two in two family house, basically in order to access her apartment, she had to go up a set of backstairs. The owner of the dog lived on the on the first floor. And so each day she would have to go by this dog. And you know, she States that the dog was growling, barking, you know exhibiting sort of vicious demeanor whenever she walked up those stairs. And one day it burst through the through the door to the, to the back porch and a bit her on her hand. She had had to go to the hospital and you know, sustained quite a bit of damage to her hand.
Ryan McKeen (02:46):
And was there any, now, now there are a lot of tenants in Connecticut and a lot of dogs and a lot of landlords and Connecticut’s housing supply has a lot of, you know, two and family houses, not dissimilar to where Ms. Senwas living at the time. She was she was bit. And can you tell us anything about the lease that, that Ms. Sen had with her landlord and the lease that the dog owner had with the same landlord?
Matt Eagan (03:20):
Right. So so her lease the lease to both apartments in this particular building called for no pets. You know, so, and one of the things that was I think important was that when when Isha Sen discovered that there was going to be that the landlord was going to make an exception for the, for the tenant on the first floor and allow that tenant to have a dog. You know, she, she says that she asked to move to move out to, to you know, to have to out of our lease and and was told no. But she know, and she also says that, you know, one of the, one of the attractive things about that particular apartment to her was the fact that it was going to be a pet free pet free zone adult free zone. You know, but in this case, the landlord decided to make an exception to his own lease, to the, to the lease that he had provided to both tenants.
Ryan McKeen (04:27):
And can you can you tell us a little bit about this dog and how it came to be on the property?
Matt Eagan (04:36):
Right. So this dog was it was a pit bull or a pit bull mix that was adopted from one of the local humane societies, but had previously been used as a, as a bait pit bull and, and dog fighting. And I’m not sure that everybody knows what a bait pit bull is, but that is essentially a dog that is is it’s sort of tied up and prevented from defending itself and is used to train other dogs to attack sort of without, without mercy. You know, and so it’s a, it’s a highly traumatic and a highly you know, it’s just an awful situation for that dog. You know, there’s not, so that, that was the history of that, that particular dog.
Ryan McKeen (05:33):
And how I mean, how, how did the how did the, did, was a landlord aware that the dog was there and does that, does that matter? Can you explain a little bit more, I know you touched on it a little bit before, but can you explain just a little bit more about how, how this dog sort of really comes to, comes to be here?
Matt Eagan (05:55):
Right. Well, so the L, so the landlord you know, was aware that the dog was on the premises, the, the first floor tenant told the landlord that he was going to adopt the dog. The landlord made the exception to the lease to allow this. You know, and, and so one of the things that a landlord has a duty to do is and this is, this goes back to common law. This is not a statutory law. So this has been the law, you know going back hundreds of years is that it’s liable for well, it has a, that landlord has a common law duty to protect tenants from any sort of known hazard on the property. And fairly recently, what courts have held in Connecticut is that a dog known to the landlord can be such a hazard on the common areas of the property. If the dog is known to have some kind of either known to have or, or a landlord should have known that dog has some kind of vicious propensity.
Ryan McKeen (07:15):
And so Ms. Sen Brings her case to New Britain superior court. And can you explain to us what happens at, at the trial court before, before you got?
Matt Eagan (07:27):
So before I was involved the, the defense moved for summary judgment. In other words, they moved to dismiss the case basically on, on you know, saying, saying there’s no issue of fact here and she has no cakes. And their main contention was the landlord didn’t know he had, he had they didn’t know that the dog was vicious. He had submitted an affidavit saying, I didn’t know the dog was vicious. He had appeared at the deposition and said, I didn’t know the dog was vicious. In response Isha Sen and her attorney had submitted an affidavit saying that that whenever someone approached us, the apartment building, the dog would bark and growl and, and act in a, in a vicious manner. And you know, so, so the trial court with this evidence in front of, of in front of it, granted the motion for summary judgment and, and essentially that’s the end. That would have been the end of Isha Sen case.
Ryan McKeen (08:45):
And so when the court grants summary judgment and appeal was taken and that’s when you get involved, that’s when you get brought on to the case. And what we’re, in any time you take an, anytime you bring a case up on appeal, there have to be issues that are appealed. What were the issues specifically that were appealed in the sentence?
Matt Eagan (09:03):
So we had two two main obviously the, you know, what we’re appealing is the granting and the summary judgment. But the two issues that we had is we felt that the trial court necessarily had to make a credibility determination between the story told by the plaintiff and the story told by the landlord. And at the summary judgment phase of of a proceeding that’s not permitted. The, the, at the summary judgment in this case, the defendant moves to summary judgment. So the trial court was obligated to take the facts as asserted by the plaintiff, by Ms .Sen as true and determine whether if these facts are proven. There is a case. And our argument was that the trial court did not do that that way. The credibility of the two of the two things and made a determination in favor of the defendant. Second the, one of the things that ms and try to try to show was that the fact that the dog was a pit bull should have been a factor in in consideration of whether the the landlord had an obligation to sort of make an investigation as to whether this particular dog was vicious. You know, and so that was, those were the two basic thrusts of, of our appeal.
Ryan McKeen (10:42):
And so what, can you can you describe, so you, you what you, you, you write the, in any sort of appellate process, you filed a brief, you then bring it and you argue before, before the appellate court. Can you talk to us a little bit about the argument that you had in this case, what the concerns of the various appellate judges were and just shed some light on that process for us,
Matt Eagan (11:11):
Right. So initially I can tell you that, you know, I can tell you my concerns upon taking the case, you know, and looking at the record in the case, my concern was that the, the, in her affidavit she had stated several several things such as, in my opinion, it is my opinion that anyone who saw this dog would, you know, would, and I’m paraphrasing briefly, but anybody who saw this dog would recognize it as a vicious dog. And what I was concerned about initially, it’s, it’s those sort of introductory in my opinion phrases and I what I, I thought that the law was pretty clear, but I felt that we had to make sure that the, the appellate court looked past that introductory phrase to the facts the facts that underlie her statement. So, so whenever, you know, whenever the dog don’t behave in a vicious manner, whenever anybody approached the building, you know, in terms of, of an affidavit, that’s a, that’s a, that’s a factual statement as far as a witness witnessing something.
Matt Eagan (12:28):
In this case, ms San witnessing people approaching the building and the way that the, the the dog reacted. It’s not an opinion. And so what we had to what we had to be certain of is, is that the, you know, the appellate court would see that too. So that was my initial concern. In addition, you know, anytime you’re, you’re sort of arguing look, I like dogs, right? You know, I there, you know, I don’t wanna I don’t want to be the guy that’s standing up there and saying, you know, every time you see this kind of a dog, it means that you know, the landlord has some kind of a duty. And I felt that we needed to be very clear that that was not our argument. Our argument was that consistent with Connecticut law, just like you know you know, certain the horses may have pose certain dangers, certain dogs post certain dangers and a landlord you know, needs to check it out.
Matt Eagan (13:46):
And if, if they, they check it out and they find that the dog is, is looking the faces of everybody that comes by, that’s terrific. But that there, there is sort of a heightened duty. So those were but I didn’t want to appear to be, to be up there saying all dogs, all dogs are you know, all dogs aren’t necessarily mean or, or you know, create some kind of a hazard. Fortunately, and it was, it was very early into the, into the oral argument when you know, I realized the court completely that we have been clear on the court completely understood. Our argument, that argument was was a limited one and not calling for sort of a sweeping as the trial court had said at the trial court had said, I’m not about to make a, you know, a sweeping a statement that, that anytime a landlord sees a pit bull, he’s, he’s on notice. That was not argument. And the appellate court recognized that was not our argument very early, very early. It was apparent.
Speaker 3 (15:00):
[Inaudible].
Ryan McKeen (15:01):
And so what, what what issues did the court ultimately you know, decide and in, in, in when they rendered their decision in favor of Ms. Sen?
Matt Eagan (15:15):
Right? So the, so the majority decision is it goes along on the, on the, the sort of traditional summary judgment standard lines. It says, yes, the trial court necessarily had to make a credibility determination to grant summary judgment. In this case, it’s not allowed to do that. You had, you have a statement from the plaintiff saying, jeez, whenever anybody approached this building, the dog acted in a vicious manner. You have a landlord saying, I never saw the dog be vicious. That’s for a fact finder to resolve. That’s for the jury to resolve. You can’t do that. You can’t resolve that at summary judgment. And that’s, you know, that’s how the that’s how the appellate court the majority decision decided, judge Prescott in a concurrence.
Speaker 3 (16:13):
[Inaudible]
Matt Eagan (16:14):
Did go into the argument regarding the specific breed of the dog with a pit bull, which many courts have throughout the, throughout the nation have recognized that in one way or another or another may require a sort of heightened scrutiny among, among landlords that you know, and, and for instance, they are the, the, the plaintiff had actually introduced evidence that their breed on a military basis they’re the New York city housing authority abandoned them. You know, and, and whether I’m certain that there are people that are gonna say that that’s a, you know, that’s unfair, but that is a recognition of the fact that, that unfortunately these particular dogs tend to be used in dog fighting and more, more often than other dogs dog fighting understand, understandably sort of alters the way a dog may react in, in future circumstances. And nobody’s saying you can’t have, you can’t, you know, you can’t in Connecticut, nobody’s saying you can’t have a pit bull or saying that if somebody has a pit bull, it’s a factor in determining whether, whether in, in, in what you have to do to make sure that, that, that particular dog is not vicious.
Ryan McKeen (17:42):
So you know, would like the Sen case have any applicability to say folks who, you know, just to possibly a car accident case where a defendant says, you know, look, I, I wasn’t negligent. I was driving correct. I was driving properly and following the rules. And the plaintiff says, no, you weren’t. Would, would, would the court engage in sort of a similar analysis if this wasn’t a dog bite?
Matt Eagan (18:09):
Absolutely. It’s, it that the majority opinion is very, very applies in a lot of circumstances. It applies in any circumstance where, where summary judgment is granted or well, even before it’s granted it trial courts should consider it wherever. What, what you have is somebody making an allegation, somebody on the other side saying, no, that didn’t happen. That you know, the allegation that this happened. Somebody on the other side saying, no, it didn’t happen. That’s not an appropriate place and it’s not appropriate for summary judgment at that time. It very specifically says that matters or credibility where you’re trying to determine, well, who’s telling the truth here? If it comes down to who’s telling the truth here, that’s a matter for a fact finder for a jury. And it’s not appropriate at for a court to make that determination at summary judgment. So it applies, it would apply in a car accident where that’s, that’s the case. It would apply in other premises liability cases. If, if, you know, if there’s a big hole on a, on a step on the property and the landlord says, I never, you know, I never noticed the hole, but the landlord was, you know, but I was there all the time, it would apply there. That’s, that’s not an appropriate means to determine to, to decide a case on summary judgment. That’s for a jury to determine.
Ryan McKeen (19:45):
And I think that’s, that’s a really, that’s a really important case because really in winning this case, Matt, you preserve the right to a jury, the constitutional right to a jury for a whole class of plaintiffs that if, if the trial court’s ruling had stood and other courts had followed, it would have deprived others in many, many contexts of the ability to get to a jury simply by the defendant saying, well, I’m not responsible for this, David, which is it? Which is awfully convenient. So what I what I’d like, you know, so if, if, if there’s a tenant out there who is bitten by a dog of another tenant after the Sen case, what rights do they have potentially against their landlord and what things should they be, be looking at?
Matt Eagan (20:39):
Well, what they should be looking at is, and, and what, what they should be looking at is whether the landlord could re, you know, should have known that that having allowing that tenant to, to keep that particular, that dog on the premises posed risk of what happened, which is in this case was a dog bite, which is of course allowing a tenant to to keep a dog does, you know, it’s that’s the natural risk of keeping a dog is that the dog bites somebody. You know, and, and so what they can look at is, is ways in which the landlord should have known that this particular dog had had vicious over or, you know, had a vicious demeanor or was prone to bite somebody. It doesn’t mean that, you know, it doesn’t mean that nobody can have dogs, but it does mean that if the, if the landlord is on the property and the dogs are barking and growling he doesn’t get to get out of it by saying, I never noticed that.
Matt Eagan (21:53):
You know, and so those are things what a tenant would want to look at is how many times did that landlord come to this property come to the property? Was the landlord there, you know, weekly or monthly? Was the was there evidence or you know, when the, when the posts when the, when the mail person brings the mail, does the dog bark and growl at the male person? And so by proxy would necessarily, you know, may may growl at every, anyone who approaches the building. You know, all of these things that would go to the question of whether the landlord either did know or should have known that, that the dog would be inclined to bite somebody if it got out and got on to the common area of a, of a property that is there for the common enjoyment of the tenants.
Matt Eagan (22:48):
You know, that, that, and that’s the, that’s the, I think the important thing is we talk about you know, that so often we talk about, well, I have a right to, you know, to have a dog or the landlord is inclined to let somebody have a dog. And that’s fine. But other people have the right to use the premises, use the yard, you know, they have it right to park the car. They have the right to use their back steps to get up to their apartment. You know, and if, if there’s evidence that the, a particular dog or any particular pet on on a property is vicious or has has a potential propensity to engage in some kind of behavior, that’s, that’s you know, violence. And yes, you know, those are the, those are, there are that, you know, that’s why we have a liability for those things and, and you know, so those are some of the things they should be looking for.
Ryan McKeen (23:54):
Well, Matt, thank you so much for your time this morning. I really appreciate it. And if folks want to find you, we’ll post a link to your profile in the in the comment section. And they can reach out to you or any other lawyers who are listening to this. A lot of lawyers listen to our podcast and our, and our content. They can reach out to you as well if they’re looking to handle or have questions about handling a dog bite cases in particular against, against third parties. So Matt,
Matt Eagan (24:26):
Well, one, there’s one last thing that I would like to point out, Ryan though, is that this particular decision is extremely well-written. And so I do think that for other attorneys out there, it has rather clear language. That is helpful. It’s a, it’s a very well written opinion. And so for, for that reason, if nothing else it’s, it’s quite useful.
Ryan McKeen (24:48):
Great. And Matt, I will put the site to the case in the comments section. So if anybody is looking for the site to the case you can, you can check it out. And I think it, it makes I think it makes appellate judges jobs very a lot easier when they have good attorneys who are handling the case. So, thank you, Matt.
Matt Eagan (25:10):
Thank you, Ryan.
