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*********************************************** 
ISHA SEN v. KOSTAS TSIONGAS

(AC 40963)

Prescott, Elgo and Pellegrino, Js.

Syllabus

The plaintiff sought to recover damages from the defendant, who was the

landlord and owner of the apartment building in which she lived, for

negligence in connection with personal injuries the plaintiff sustained

when she was bitten in the building’s common stairway by a dog owned

by one of the other tenants. Specifically, the plaintiff alleged, inter alia,

that the defendant was negligent in failing to maintain the building

premises in a reasonably safe condition by allowing the dog’s owner to

keep a vicious animal and failing to investigate the animal’s history of

viciousness. The defendant moved for summary judgment on the ground

that he did not have any knowledge of the alleged vicious propensities

of the dog. The trial court granted the defendant’s motion for summary

judgment and rendered judgment thereon, from which the plaintiff

appealed to this court. Held that the trial court improperly rendered

summary judgment in favor of the defendant, as there was a disputed

issue of material fact as to whether the defendant should have known

that the dog had vicious propensities: on the basis of the plaintiff’s

averments that the dog acted viciously toward her when she approached

the building and displayed vicious tendencies that were visible to all

those who observed it, a jury could reasonably infer that the defendant,

who came to the building on a weekly basis, would likely have observed

the dog’s aggressive tendencies, and the defendant’s claim that there

was no dispute as to a material fact was further undermined by the

existence of additional circumstantial evidence indicating that the defendant should have known that the dog had vicious propensities, as there

was evidence that the dog, prior to biting the plaintiff, scratched the

plaintiff’s husband and bit the son of the dog’s owner, that the dog’s

owner spoke openly about how the dog had been used as bait in dog

fighting, and that the defendant had constructive knowledge of the dog’s

vicious propensities in the form of the defendant’s own testimony that

the dog once barked at him through the window while he was mowing

the lawn and that he observed the dog pull toward him when the dog

was walked on a leash; moreover, although the defendant testified that

he never saw the dog display vicious tendencies, the trial court was

presented with conflicting facts and was required to make a credibility

determination, which the court was not permitted to make at the summary judgment stage, and, thus, the existence of those contradictory

accounts of the dog’s behavior thwarted summary judgment.

(One judge concurring separately)

Argued March 19—officially released August 27, 2019

Procedural History

Action to recover damages for the defendant’s alleged

negligence, and for other relief, brought to the Superior

Court in the judicial district of New Britain, where the

court, Swienton, J., granted the defendant’s motion for

summary judgment and rendered judgment thereon,

from which the plaintiff appealed to this court.

Reversed; further proceedings.

Matthew C. Eagan, with whom was James P. Sexton,

for the appellant (plaintiff).

Audrey B. Staropoli, for the appellee (defendant).
Opinion

PELLEGRINO, J. In this premises liability action, the

plaintiff, Isha Sen, appeals from the summary judgment

rendered in favor of the defendant, Kostas Tsiongas.

On appeal, the plaintiff claims that the trial court erred

in rendering summary judgment in favor of the defendant, who was the landlord of the apartment building

in which the plaintiff lived, because there was a disputed issue of material fact as to whether the defendant

should have known that the dog of one of the other

tenants had vicious propensities. We agree with the

plaintiff and, accordingly, reverse the judgment of the

trial court.

The following facts and procedural history are relevant to this appeal. At the relevant times, the plaintiff

resided in the second floor apartment of a two unit

apartment building at 396 Washington Street in Bristol

(building). The defendant was the owner and landlord

of the building. On September 18, 2015, at approximately 3:30 p.m., a dog that was owned by the building’s

first floor tenant bit the plaintiff in the building’s common stairway. The plaintiff was taken by ambulance to

the University of Connecticut Medical Center in Farmington, where she was treated for her injuries, which

included lacerations to and numbness of her right hand.

On May 4, 2016, the plaintiff commenced the present

action. In her operative complaint, the plaintiff alleged,

inter alia, that the defendant was negligent in failing to

maintain the building premises in a reasonably safe

condition by allowing the first floor tenant to keep a

vicious animal, failing to investigate the animal’s history

of viciousness, and failing to enforce a provision of the

lease that prohibited pets on the premises.

On July 13, 2017, the defendant filed a motion for

summary judgment, which was accompanied by an affidavit in which he averred in relevant part: ‘‘At no time

prior to September 18, 2015, did I have any knowledge

of the alleged vicious propensities of the dog involved

in the incident. . . . At no time prior to September 18,

2015, did I observe the dog involved in the incident

engage in vicious behavior, nor did [the dog’s owner]

or anyone else inform me that the dog had a propensity

toward viciousness.’’

On August 30, 2017, the plaintiff filed an objection

to the defendant’s motion for summary judgment. In

support of her objection, the plaintiff attached an affidavit in which she averred in relevant part: ‘‘[The first

floor tenant] spoke openly about how the [dog] had

been used as bait in dog fighting. . . . It is my opinion

that the [dog] exhibited vicious qualities and that these

qualities were apparent to any reasonable person who

observed the dog. . . . The [dog] demonstrated aggression by barking, growling, and trying to escape the first

floor porch whenever I walked up the stairs. . . . In
June of 2015, the [dog] broke out of the porch and

advanced toward my husband, trying to bite him. The

[dog] managed to scratch him before it was brought

under control. . . . Before I was attacked, [the first

floor tenant] informed me that the [dog] had bitten his

seven year old son.’’

In support of her objection to the defendant’s motion

for summary judgment, the plaintiff also submitted a

transcript of her deposition of the defendant, which

was taken on July 31, 2017. During the deposition, the

following exchange occurred between the plaintiff’s

counsel and the defendant:

‘‘Q. You have a rule [in your lease agreement] that

says, ‘You will not have pets.’ Why do you have that rule?

‘‘A. Well, I have that rule more like for . . . pets

cause damage . . . sometimes.

‘‘Q. What kind of damage can pets cause?

‘‘A. Well, going to the bathroom in the house, this

and that, but if somebody asks me, can I get [a pet], or

if [they] have a pet, and they’re a good tenant . . . I’d

say okay. You know.

* * *

‘‘Q. What kind of damage [other than property damage] is that?

‘‘A. Well, I mean, if a dog or a cat scratches, you

know, another human, yes.

‘‘Q. And do you have that rule to protect other

humans?

‘‘A. No. It’s mostly, I put it in, like I said, for more

damage.

* * *

‘‘Q. All right. And can you tell me about [the first

floor tenant] asking you about getting a dog?

‘‘A. Yes. He asked me, he wanted to get a dog from

The Humane Society and, then I said, okay.

* * *

‘‘Q. Do you know approximately when [the first floor

tenant] got the dog?

‘‘A. Probably 2014 . . . .

‘‘Q. And . . . did you see the dog on the property?

‘‘A. Well, I had seen the dog on the property when

they had it out, walking the dog, but I [had] seen the

dog inside when I’d go in to do any repairs in the apartments or collect rent.

* * *

‘‘Q. Approximately how often were you at the [building] after they got the dog in 2014?
‘‘A. Well, I don’t know. Probably, I’d say, once a

week. . . .

‘‘Q. Can you tell me about the dog, about what the

dog was like?

‘‘A. Well, like I said, when I was there, I would go into

their apartment and the dog wouldn’t bark, or growl,

or anything like that to me. I’d see the dog outside when

they . . . [had] it on the leash. You know, it pulled,

like you know, of course, dogs come and want to see

you, but that’s about it. I mean, otherwise . . . one

time when I was cutting the grass, the dog barked at

me through the window, but all dogs do that, you know.’’

On September 5, 2017, the court held a hearing on

the defendant’s motion for summary judgment. On September 28, 2017, the court granted the defendant’s

motion for summary judgment and rendered judgment

in favor of the defendant. In its memorandum of decision, the court stated: ‘‘The plaintiff has not put forth

any evidence that the [defendant] had actual or constructive knowledge of the dog’s alleged vicious propensities prior to the alleged attack.’’ This appeal followed.

Additional facts will be set forth as necessary.

The plaintiff claims that the trial court erred in rendering summary judgment in favor of the defendant

because there was a disputed issue of material fact as

to whether the defendant should have known that the

dog had vicious propensities. Specifically, the plaintiff

argues that the evidence, viewed in the light most favorable to her as the nonmoving party, demonstrates the

existence of a disputed factual issue. We agree with

the plaintiff.

‘‘We begin our analysis with the standard of review

applicable to a trial court’s decision to grant a motion

for summary judgment. Practice Book § 17-49 provides

that summary judgment shall be rendered forthwith if

the pleadings, affidavits and any other proof submitted

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law. A party moving for summary judgment is held to a strict standard. . . . To satisfy his

burden the movant must make a showing that it is quite

clear what the truth is, and that excludes any real doubt

as to the existence of any genuine issue of material

fact. . . . As the burden of proof is on the movant, the

evidence must be viewed in the light most favorable to

the opponent. . . . When documents submitted in support of a motion for summary judgment fail to establish

that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents

establishing the existence of such an issue. . . . Once

the moving party has met its burden, however, the

opposing party must present evidence that demonstrates the existence of some disputed factual issue.

. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.

Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court

under Practice Book § [17-45]. . . . Our review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Internal quotation marks omitted.) Anderson v. Dike, 187 Conn. App. 405, 409–10,

202 A.3d 448, cert. denied, 331 Conn. 910, 203 A.3d

1245 (2019).

The following legal principles are also relevant to the

plaintiff’s claim. ‘‘As a matter of well settled common

law, [i]t is, of course, the duty of a landlord to use

reasonable care to keep in a reasonably safe condition

the parts of the premises over which he reserves control. . . . The ultimate test of the duty is to be found

in the reasonable foreseeability of harm resulting from a

failure to exercise reasonable care to keep the premises

reasonably safe. . . . The prevailing common-law conception of the dangerous conditions implicated in this

duty, moreover, certainly is capacious enough readily

to encompass threats from animals, including known

vicious dogs. . . . [A] landlord, in exercising the

closely analogous duty to alleviate dangerous conditions in areas of a premises over which it retains control,

must take reasonable steps to alleviate the dangerous

condition created by the presence of a dog with known

vicious tendencies in the common areas of the property.’’ (Citations omitted; internal quotation marks omitted.) Giacalone v. Housing Authority, 306 Conn. 399,

407–408, 51 A.3d 352 (2012).

‘‘We note . . . that our conclusion that the traditional common-law duty of landlords to keep common

areas in a reasonably safe condition applies to dangers

posed by known dangerous dogs accords with the identical conclusion reached by courts in numerous other

jurisdictions. See, e.g., Fouts ex rel. Jensen v. Mason,

592 N.W.2d 33, 40 (Iowa 1999) (‘When the landlord

knows or has reason to know of the existing dangerous

condition, the landlord—to avoid liability—must act to

protect those using the common area. . . . [H]ere,

although she may not have had control over the dog,

[the landlord] knew or had reason to know that the dog

posed a danger to those in the common backyard. She

therefore had a duty to take reasonable precautions to

protect those lawfully in the common area.’ . . .)

. . . .’’ (Citations omitted; emphasis added.) Giacalone

v. Housing Authority, supra, 306 Conn. 409–11.

The test for common-law premises liability looks to

whether the landlord had actual or constructive knowledge of the dangerous condition on the premises. See,

e.g., Noebel v. Housing Authority, 146 Conn. 197, 201,

148 A.2d 766 (1959) (‘‘the test is: would the ordinarily

prudent [person] in the position of the defendants,

knowing what they knew or should have known, antici-
pate that harm of the general nature of that suffered

was likely to result’’ [emphasis added]). Thus, in order

to prevail on his motion for summary judgment, the

defendant in the present case was required to demonstrate the absence of any genuine issue of material fact

as to whether he knew, or should have known, of the

dog’s vicious propensities. Giacalone v. Housing

Authority, supra, 306 Conn. 409–10.

In her affidavit, the plaintiff averred that the dog

‘‘demonstrated aggression by barking, growling, and

trying to escape the first floor porch whenever [she]

walked up the stairs.’’ Additionally, the plaintiff averred:

‘‘It is my opinion that the [dog] exhibited vicious qualities and that these qualities were apparent to any reasonable person who observed the dog.’’1 On the basis

of the plaintiff’s averments that the dog acted viciously

toward her when she approached the building and displayed vicious tendencies that were visible to all those

who observed it, a jury could reasonably infer that the

defendant, who came to the building on a weekly basis,

would likely have observed the dog’s aggressive tendencies. See Tuccio Development, Inc. v. Neumann, 111

Conn. App. 588, 594, 960 A.2d 1071 (2008) (at summary

judgment stage, ‘‘court must view the inferences to be

drawn from the facts in the light most favorable to the

party opposing the motion’’ [internal quotation marks

omitted]); Solesky v. Tracey, 198 Md. App. 292, 325, 17

A.3d 718 (2011) (‘‘[T]here was uncontroverted evidence

that the landlord had visited the property and had seen

these particular pit bulls [firsthand]. In light of a neighbor’s testimony that ‘anybody’ who walked near these

dogs would experience aggression from the dogs, the

jury could have rationally inferred that the landlord,

too, observed vicious behavior when she . . . visited

the premises.’’), aff’d on other grounds, 427 Md. 627,

50 A.3d 1075 (2012), superseded by statute as stated in

Phillips v. J Bar W, Inc., Docket No. 1167, 2017 WL

4876762, *4 (Md. Spec. App. October 27, 2017). Although

a jury could reasonably infer that the defendant had the

opportunity to observe the dog’s aggressive tendencies,

the defendant testified that he never saw the dog display

vicious tendencies. Thus, the trial court in the present

case was presented with conflicting facts and was

required to make a credibility determination. Because

the court is not permitted to make such a credibility

determination at the summary judgment stage, the existence of these contradictory accounts of the dog’s

behavior thwarts summary judgment. See, e.g., Straw

Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn. App. 691, 710, 145 A.3d 292 (‘‘In

summary judgment, the court’s role is not to weigh the

credibility of the parties, which falls within the province

of the finder of fact. . . . When a court, in ruling on

a motion for summary judgment, is confronted with

conflicting facts, resolution and interpretation of which

would require determinations of credibility, summary
judgment is not appropriate.’’ [Citation omitted.]), cert.

denied, 323 Conn. 930, 150 A.3d 231 (2016).

The defendant’s argument that there was no dispute

as to a material fact before the trial court is further

undermined by the existence of additional circumstantial evidence indicating that the defendant should have

known that the dog had vicious propensities. ‘‘Circumstantial evidence is, of course, also available on the

question of notice or knowledge of the specific defects

. . . .’’ Cruz v. Drezek, 175 Conn. 230, 235–36, 397 A.2d

1335 (1978). In the present case, there was evidence

that, prior to biting the plaintiff on September 18, 2015,

the dog scratched the plaintiff’s husband and bit the

first floor tenant’s son.

Moreover, the plaintiff averred that the dog’s owner

‘‘spoke openly about how the [dog] had been used as

bait in dog fighting.’’ Although this evidence came in

through the plaintiff’s affidavit, dismissing these statements out of hand amounts to a credibility determination and, therefore, runs afoul of the well established

rule that ‘‘[w]hen deciding a summary judgment motion,

a trial court may not resolve credibility questions raised

by affidavits or deposition testimony submitted by the

parties.’’ Doe v. West Hartford, 328 Conn. 172, 197, 177

A.3d 1128 (2018); see id., 196 (concluding that trial

court erred when it dismissed ‘‘out of hand’’ deposition

testimony that created genuine issue of material fact).

Moreover, there was evidence that the defendant had

constructive knowledge of the dog’s vicious propensities in the form of the defendant’s own testimony that

the dog once barked at him through the window while

he was mowing the lawn and that he observed the dog

pull toward him when the dog was walked on a leash.

Although the defendant described these behaviors as

things ‘‘all dogs’’ do, this evidence, in conjunction with

the evidence described in the preceding paragraphs of

this decision, could reasonably be viewed by the jury

as indicating that the defendant had constructive notice

of the dog’s vicious propensities. On the basis of the

foregoing, we conclude that there is a disputed issue

of material fact and, therefore, that summary judgment

was improper.2

The judgment is reversed and the case is remanded

for further proceedings consistent with this opinion.

In this opinion, ELGO, J., concurred.

1 We do not believe that this statement constitutes inadmissible evidence.

Although a lay witness is generally not permitted to give opinion testimony,

‘‘[t]he use of such words as ‘I think,’ ‘probably,’ or ‘it is my impression’ are

not uncommon in lay testimony and do not make such evidence opinion

unless it is clearly so from all the circumstances.’’ E. Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed. 2019) § 7.1.2, p. 434. Because evidence is to be construed in favor of the nonmoving party in considering a

motion for summary judgment, and because the aforementioned principle

is relevant to this issue, we conclude that, although the plaintiff prefaced

her statement by stating ‘‘[i]t is my opinion,’’ the statement constituted a

factual assertion regarding the dog’s behavior rather than an opinion.

2 Because we reached this conclusion without considering the breed of
the dog, we need not address the defendant’s argument that the trial court

should have considered the fact that the dog was a pit bull in assessing

whether the defendant had constructive notice of the dog’s viciousness. We,

therefore, see no reason to determine the breed issue and do not agree with

Judge Prescott’s concurrence that the breed of the dog should be considered

in assessing premises liability, in the absence of the articulation of such a

rule by our Supreme Court or legislature.