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*********************************************** 
SEN v. TSIONGAS—CONCURRENCE

PRESCOTT, J., concurring. I agree with the opinion

of the majority that the trial court improperly rendered

summary judgment in favor of the defendant, Kostas

Tsiongas. In reaching this conclusion, however, I conclude, unlike the trial court, that the fact that the dog

that bit the plaintiff, Isha Sen, in this case is a pit bull

is a relevant factual consideration in assessing whether

the landlord-defendant had constructive knowledge of

the dog’s vicious propensities.1 Because the question

of whether, in the absence of any consideration of the

breed of the dog in this case, the trial court properly

rendered summary judgment in favor of the defendant

is a close one, I am of the view that it is appropriate

to address the relevance of the breed of the dog.

Numerous courts have concluded that pit bulls or

mixed breed pit bulls pose dangers to people greater

than most, if not all, other breeds of dogs. See, e.g.,

Altman v. High Point, 330 F.3d 194, 206 (4th Cir. 2003)

(‘‘pit bulls . . . are a dangerous breed of dog’’);

Vanater v. South Point, 717 F. Supp. 1236, 1241 (S.D.

Ohio 1989) (‘‘[w]hile [p]it [b]ulls are not the only breed

of dog which can be dangerous or vicious, it is reasonable to single out the breed to anticipate and avoid the

dangerous aggressiveness which may be undetectable

in a[n] [individual] [p]it [b]ull’’); see also Tracey v.

Solesky, 427 Md. 627, 644 n.18, 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superseded by statute as stated in Phillips v. J Bar W,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).2

Many localities have banned or highly regulated ownership of pit bulls, against constitutional challenge,

because of the pit bull’s vicious tendencies and ability to

cause severe injuries. See, e.g., American Dog Owners

Assn., Inc. v. Dade County, 728 F. Supp. 1533, 1538–43

(S.D. Fla. 1989); Starkey v. Chester, 628 F. Supp. 196,

197–98 (E.D. Pa. 1986); Holt v. Maumelle, 307 Ark. 115,

117–19, 817 S.W.2d 208 (1991); Colorado Dog Fanciers,

Inc. v. Denver, 820 P.2d 644, 650–54 (Colo. 1991) (en

banc); State v. Peters, 534 So. 2d 760, 763–65 (Fla. App.

1988), review denied, 542 So. 2d 1334 (Fla. 1989); American Dog Owners Assn., Inc. v. Des Moines, 469 N.W.2d

416, 417–19 (Iowa 1991); Hearn v. Overland Park, 244

Kan. 638, 647–50, 772 P.2d 758, cert. denied, 493 U.S.

976, 110 S. Ct. 500, 107 L. Ed. 2d 503 (1989); Bess v.

Bracken County Fiscal Court, 210 S.W.3d 177, 181–83

(Ky. App. 2006); Garcia v. Tijeras, 108 N.M. 116, 118–24,

767 P.2d 355 (App.), cert. denied, 107 N.M. 785, 765

P.2d 758 (1988); Toledo v. Tellings, 114 Ohio St. 3d 278,

281–84, 871 N.E.2d 1152 (2007), cert. denied, 552 U.S.

1225, 128 S. Ct. 1302, 170 L. Ed. 2d 140 (2008); Greenwood v. North Salt Lake, 817 P.2d 816, 818–21 (Utah

1991); Dog Federation of Wisconsin, Inc. v. South Mil-
waukee, 504 N.W.2d 375 (Wis. Ct. App.), review denied,

508 N.W.2d 423 (Wis. 1993). Furthermore, several

branches of our military ban pit bulls from housing

facilities on military bases because of concerns regarding the breed’s tendency toward viciousness. See, e.g.,

D. Conkright, Department of the Army, ‘‘Memorandum

for See Distribution: United States Army Garrison Humphreys, Policy Letter #34, Ownership and Control of

Pets,’’ (July 21, 2013), available at https://www.army.mil/e2/c/downloads/328371.pdf (last visited August

12, 2019).

In light of the pit bull breed’s vicious tendencies,

at least two courts have held that it is ‘‘objectively

reasonable’’ for a person to assume an approaching pit

bull is vicious even though that individual pit bull is,

in fact, ‘‘a friendly, nonviolent dog who would not have

harmed [others] . . . .’’ Warboys v. Proulx, 303 F.

Supp. 2d 111, 118 and n.13 (D. Conn. 2004); see also

United States v. Sutton, 336 F.3d 550, 551, 554 (7th Cir.

2003) (holding that less than full compliance with knock

and announce rule was reasonable under circumstances, in part, because ‘‘pit bull dogs [known for their

hostility to strangers] had been seen on the property,’’

which police identified as ‘‘[a] potential [threat] to officer safety’’); Pickens v. Wasson-Hunt, United States

District Court, Docket No. 04-0678-CV-W-HFS (W.D.

Mo. August 7, 2006) (determining that police officers

were not unreasonable in directing their weapons at

pit bull who was not acting aggressively because ‘‘it is

clear that the unquantifiable, unpredictable aggressiveness and gameness of pit bulls make them uniquely dangerous’’).

In Warboys, the court determined that a police officer

was not required to wait until the pit bull leaped toward

him to take protective action. Warboys v. Proulx, supra,

303 F. Supp. 2d 118. In making this determination, the

court considered extensively the vicious tendencies of

the pit bull breed. See id., 118–19 n.13. On the basis of

this information, the court concluded that ‘‘it is reasonable to single out the [pit bull] breed to anticipate and

avoid the dangerous aggressiveness [that] may be undetectable in a[n] [individual] [p]it [b]ull.’’ (Internal quotation marks omitted.) Id., 119 n.13. Thus, the court in

Warboys determined that the officer did not need to

know about the behavioral characteristics or propensities of the individual pit bull approaching him; the fact

that the pit bull breed itself is known for violent behavior was a sufficient basis for the officer to determine

how to treat the approaching dog.

Although breed does not establish by itself a prima

facie case of constructive knowledge of danger, it is a

relevant factual consideration to be evaluated along

with the other evidence. In light of the danger some

pit bulls pose to people, some courts have held that

evidence regarding the vicious tendencies of the pit
bull breed may be considered by a jury as part of its

determination of whether a defendant had reason to

know of an individual pit bull’s dangerousness.3 See,

e.g., Drake v. Dean, 15 Cal. App. 4th 915, 923–24, 19

Cal. Rptr. 2d 325 (1993) (determining that evidence of

pit bulls historically being bred for aggressiveness may

be considered by jury to consider dangerousness of

individual pit bull); Giaculli v. Bright, 584 So. 2d 187,

188, 189 (Fla. App. 1991) (holding that landlord could

be held liable for injuries to plaintiff’s son caused by

neighbor’s pit bull because ‘‘it is not necessary that pit

bulls be declared vicious per se under the law in order

for the landlord and owners to be placed on notice that

a tenant has a vicious dog’’ and, therefore, ‘‘[t]he fact

that the dog was barking and lunging, particularly in

light of the characteristics of pit bulls, is sufficient for

a jury to reasonably conclude that the landlord was on

notice of the vicious propensity of the dog’’); Hampton

ex rel. Hampton v. Hammons, 743 P.2d 1053, 1056,

1061 (Okla. 1987) (holding that ‘‘evidence relating to the

nature of pit [bulls] as a breed is properly admissible’’

because it is relevant in determining whether defendant

is liable for common-law negligence).

Moreover, an animal’s type has been a consideration

our Supreme Court has used to determine whether the

owner of the animal is liable for the injuries it caused.4

The court has held that, even in the absence of evidence

purporting to show the vicious tendencies of an individual animal, an owner may be held liable for negligence for the foreseeable harms5 of an animal that is

a part of a ‘‘class of animals that is naturally inclined

to cause such injuries . . . .’’6

(Emphasis added.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn.

301, 306, 87 A.3d 546 (2014); see id. (holding that ‘‘the

owner or keeper of a domestic animal has a duty to take

reasonable steps to prevent injuries that are foreseeable

because the animal belongs to a class of animals that

is naturally inclined to cause such injuries, regardless

of whether the animal had previously caused an injury

or was roaming at large and, accordingly, the owner

may be held liable for negligence if he or she fails to

take such reasonable steps and an injury results’’); see

also Hope v. Valente, 86 Conn. 301, 303–305, 85 A. 541

(1912) (holding that, even in absence of evidence concerning behavioral tendencies of defendant’s horse,

defendant may be liable for negligence based on manner

in which horse was left in street while feeding).

Our Supreme Court in Vendrella, however, declined

to classify a horse as presumptively dangerous and

refused to hold its keeper strictly liable for the harms it

caused. Vendrella v. Astriab Family Ltd. Partnership,

supra, 311 Conn. 307–308. Instead, the court determined

that because ‘‘the plaintiffs’ evidence . . . created a

genuine issue of material fact as to whether horses have

a natural inclination to bite humans, the case must be

submitted to the trier of facts so that it may decide as
a matter of fact whether the plaintiffs have met their

burden of proof on that issue and, if so, whether the

defendants were negligent in controlling [the horse].’’

(Emphasis in original.) Id., 308. Hence, the court held

that it was for the trier of fact to determine whether

the ‘‘plaintiff’s injuries were foreseeable and, if so, what

the appropriate standard of care was, whether the

defendants breached that standard of care and, if they

did, whether the breach was a proximate cause of the

minor plaintiff’s injuries.’’ Id.; see also Hope v. Valente,

supra, 86 Conn. 304–305 (holding that ‘‘[u]nder the facts

claimed to have been proved it was proper to leave

it to the jury to determine whether, regardless of the

viciousness of the defendant’s horse, he was negligent

in leaving it in the street in the manner claimed’’).

I arrive at a conclusion similar to that of our Supreme

Court in Vendrella. I do not posit that all pit bulls are

vicious, nor do I contend that a landlord is or should

be strictly liable for injuries caused by a tenant’s pit

bull. Indeed, if the pit bull in the present case was

known to lick affectionately every passerby and the

defendant had observed such behavior, then it is

unlikely that the trier of fact would find that the defendant had constructive knowledge that the dog posed a

danger to the other tenants.

Furthermore, I agree with the court in Vendrella and

other courts that the fact that an animal is of a certain

class—or, in the present case, breed—may create a

genuine issue of material fact as to whether a landlord,

who owed a plaintiff a duty of care, had constructive

knowledge of the vicious propensities of the animal

that caused harm. In the present case, whether the

defendant had constructive knowledge that this dog

had vicious propensities must be determined by the

totality of the circumstances presented by the case. In

making the factual determination regarding whether

the defendant knew or should have known that the dog

was vicious, I am not prepared to say that it is irrelevant

as a matter of law that the dog is a member of a breed

that presents heightened danger to others.7

In the present case, the defendant conceded at his

deposition that pit bulls are widely known to be aggressive and dangerous dogs.8

In my view, the behavioral

characteristics of the pit bull breed, along with other

evidence before the court, create a genuine issue of

material fact as to whether the defendant had constructive knowledge of the vicious propensities of the dog

that harmed the plaintiff. Accordingly, I concur in the

decision to reverse the summary judgment rendered in

favor of the defendant.

1 With respect to the fact that the dog in this case is a pit bull or a mixed

breed pit bull, the trial court stated that it ‘‘is not about to make a global

finding that if a dog bite case involves a pit bull and/or bait pit bull, the

landlord is on notice for vicious tendencies.’’ (Internal quotation marks

omitted.) The trial court’s statement incorrectly suggests that it was being

asked to decide whether the fact that the dog in the case was a pit bull

establishes, by itself, as a matter of law, that the landlord had constructive
knowledge of its vicious tendencies. The plaintiff has made no such claim.

Instead, she merely asserts that it is one relevant fact, among others, that

raises a genuine issue of material fact regarding the landlord’s constructive knowledge.

2 The Court of Appeals of Maryland in Tracey concluded that a landlord

should be held strictly liable for injuries caused by a tenant’s pit bull. The

Maryland legislature subsequently overturned the decision in Tracey by

enacting Md. Code Ann., Cts. & Jud. Proc. § 3-1901 (b) (West 2014). This

statute, however, only abrogated Maryland common law to the extent that

it imposed strict liability on a landlord for injuries caused by a tenant’s pit

bull. It did not overturn Maryland common law as it existed on or prior to

April 1, 2012. Maryland common law prior to April 1, 2012, provided that

it is a relevant factual consideration in determining a landlord’s liability for

injuries caused by a tenant’s dog that the animal was a pit bull. See, e.g.,

Matthews v. Amberwood Associates Ltd. Partnership, Inc., 351 Md. 544,

561, 719 A.2d 119 (1998) (noting that ‘‘[t]he extreme dangerousness of this

breed, as it has evolved today, is well recognized’’).

3 At least one court has held that if a dog breed is known for ‘‘vicious

tendencies,’’ then ‘‘knowledge of vicious propensities can be implied due

to the type of dog involved . . . .’’ Plue v. Lent, 146 App. Div. 2d 968, 969,

537 N.Y.S.2d 90 (1989). If, however, the breed is not known for vicious

tendencies, then such an inference cannot be made. See id. Plue, however,

did not involve a pit bull. See id. Instead, it involved an Afghan hound,

which the court described as ‘‘a noble and dignified animal, which, when

properly treated, is aloof to strangers and characteristically gentle with

everyone.’’ Id. The court contrasted this dog with a German Shepherd, which

the court described as ‘‘a breed said to have inherited vicious tendencies

from its ancestor, the wolf . . . .’’ (Citation omitted.) Id.

4

In a case involving a horse at a commercial farm, our Supreme Court

stated, ‘‘[i]n making the determination as to whether, as a matter of public

policy, the owner or keeper of a domestic animal that has not previously

exhibited mischievous propensities may be held liable for injuries that were

foreseeable because the animal belonged to a class of animals with naturally

mischievous propensities, we consider the following four factors: (1) the

normal expectations of the participants in the activity under review; (2) the

public policy of encouraging participation in the activity, while weighing

the safety of the participants; (3) the avoidance of increased litigation; and

(4) the decisions of other jurisdictions.’’ (Internal quotation marks omitted.)

Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 322, 87 A.3d

546 (2014).

5 The court addressed what a plaintiff must show to prove that the harm

caused by a domestic animal was foreseeable to the defendant. ‘‘[T]o establish that an injury caused by a domestic animal was foreseeable, the plaintiff

need not prove that the species as a whole has a natural tendency to inflict

such harm, but only that the class of animals to which the specific animal

belongs has such a tendency. . . . Conversely, if a plaintiff presents evidence that an entire species has naturally mischievous propensities, the

defendant may rebut this evidence by producing evidence that the mischievous propensities of the specific animal, or of the particular class of animals

to which the specific animal belongs, are less severe than the mischievous

propensities of the species as a whole.’’ (Citations omitted; emphasis added.)

Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 333–34, 87

A.3d 546 (2014).

Thus, the court in Vendrella suggests that ‘‘class’’ is a subset of ‘‘species.’’

As applied to the present case, this might mean that although all dogs do

not have vicious propensities, certain breeds, like pit bulls, may possess

such propensities.

6 The common-law rule for negligence ‘‘has been modified substantially

as it pertains to dogs. Specifically, General Statutes § 22-357 imposes strict

liability on the ‘owner or keeper’ of a dog for harm caused by the dog, with

limited exceptions.’’ Giacalone v. Housing Authority, 306 Conn. 399, 405,

51 A.3d 352 (2012). This statute, however, does not impose strict liability

on a landlord if a dog that lives in his or her building bites someone. As

our Supreme Court observed, ‘‘a landlord is not the keeper of a dog for

purposes of § 22-357 merely because the landlord acquiesces in the presence

of the dog on leased premises, or because the landlord has the authority

to require that the dog be removed from the premises in the event that it

becomes a nuisance, or even because the landlord has the authority to

require that certain conditions be placed on the use of the dog by its owner.’’

Auster v. Norwalk United Methodist Church, 286 Conn. 152, 162, 943 A.2d
391 (2008). Thus, the statute did not abrogate a plaintiff’s ability to sue a

landlord for dog bite injuries under theories of common-law negligence or

premises liability. See Giacalone v. Housing Authority, supra, 401–403.

7

I disagree with the majority’s suggestion that I am somehow intruding

on a policy decision that should be left to our Supreme Court or the legislature. See footnote 2 of the majority opinion. Although either of those institutions is free to weigh in as a matter of policy on this issue, there simply is

nothing inappropriate in this court determining, as a matter of common

sense and factual relevance, that the breed of the dog is a fact that bears

upon the question of whether the landlord had constructive knowledge of

the dog’s vicious tendencies.

8 The following exchange occurred between the plaintiff’s counsel and

the defendant:

‘‘[The Plaintiff’s Counsel]: Mr. Tsiongas, I mean, do you agree that pit

bulls are widely known to be aggressive and dangerous dogs?

* * *

‘‘[The Defendant]: Well, I mean, I’m sure they are. A lot of people think

so. I mean, I don’t know. I guess it depends on the dog.

‘‘[The Plaintiff’s Counsel]: Do you know that pit bulls have been banned

on U.S. military bases?

* * *

‘‘[The Defendant]: No, I didn’t know that.

‘‘[The Plaintiff’s Counsel]: All right. Did you know that the New York

City Housing Authority, which is responsible for providing safe housing for

400,000 New Yorkers [in] around 328 housing projects bans pit bulls from

its properties?

* * *

‘‘[The Defendant]: No.

‘‘[The Plaintiff’s Counsel]: Do you know why [it] might do that?

* * *

‘‘[The Defendant]: Okay. I don’t know.

‘‘[The Plaintiff’s Counsel]: Do you have any idea?

* * *

‘‘[The Defendant]: Well, I mean, I’m sure because [it has] problems with

them. I mean, I don’t know.

‘‘[The Plaintiff’s Counsel]: What kind of problems?

* * *

‘‘[The Defendant]: All right. Well, I mean, I don’t know what problems.

‘‘[The Plaintiff’s Counsel]: You don’t know what problems pit bulls—

‘‘[The Defendant]: Well, I’m sure some problems. Maybe they’re considered

a mean dog, or people abuse them. I don’t know. I mean—

‘‘[The Plaintiff’s Counsel]: You said something, they may be a mean dog

because people abuse them. What do you know about abused dogs?

* * *

‘‘[The Defendant]: Well, I mean, from what I know is what I hear in the

news, you know, people use them for fighting, you know, this and that.

That’s about it.

‘‘[The Plaintiff’s Counsel]: What happens to a dog, do you know what

happens to a dog if it’s been used in fighting?

‘‘[The Defendant]: Well, any dog that’s been, you know, abused or used

in fighting, it’s probably going to be mean, or hurt, or, I don’t know. I mean—

* * *

‘‘[The Plaintiff’s Counsel]: Do you agree that dogs that are used in fighting

might be mean?

‘‘[The Defendant]: Sure. Yes. I’m sure, yes.’’