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KRISTINA WEIHING v. ROBERT J.

PRETO-RODAS ET AL.

(AC 37310)

Alvord, Mullins and Sullivan, Js.

Argued January 5—officially released February 28, 2017

(Appeal from Superior Court, judicial district of

Fairfield, Hon. Michael Hartmere, judge trial referee.)

Dana P. Lonergan, with whom, on the brief, was

Thomas J. Weihing, for the appellant (plaintiff).

Cynthia M. Garraty, for the appellees (defendants).
Opinion

PER CURIAM. The plaintiff, Kristina Weihing,

appeals from the judgment of the trial court, rendered

after a jury trial, in favor of the defendants, Robert J.

Preto-Rodas and Margaret Preto-Rodas, in this action

brought pursuant to General Statutes § 22-357.1 On

appeal, the plaintiff claims that the trial court improperly (1) admitted photographs of the defendants’ dog

and (2) denied her motion to set aside the jury’s verdict

and for a new trial. We affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts from the testimony at trial. On June 27, 2011, the

plaintiff was walking her three dogs, two sixty pound

pit bull mixes, Angelica and Roscoe, and a one hundred

pound German shepherd-Akita mix, Max, on leashes in

front of the defendants’ house. The defendants’ neighbor observed Roscoe defecating on the defendants’

lawn. While the plaintiff was bent over picking up the

feces, the defendants’ dog, Boo Boo, a twelve pound

corgi-Chihuahua mix, came around to the front yard of

the defendants’ house from the backyard. The plaintiff

noticed Boo Boo and attempted to pull Angelica, Roscoe, and Max away without success. Then, one of the

dogs barked and Angelica, Roscoe, and Max began pursuing Boo Boo and tossing him about the defendants’

yard. As Angelica, Roscoe, and Max pursued Boo Boo,

the plaintiff was pulled to the ground by her leashed

dogs and sustained injures as a result. Eventually,

Angelica and Roscoe used their mouths to grab Boo

Boo by the head and back and, prior to being rescued

by one of the defendants, Boo Boo sustained injuries

to his neck and abdomen.

On June 23, 2013, the plaintiff filed a complaint

against the defendants alleging that Boo Boo, ‘‘who was

unleashed, suddenly ran from the defendants’ premises

and attacked and bit [her] dogs, causing [her] to fall

forcibly to the ground, thereby causing [her] to sustain

and suffer severe injuries and losses.’’ On October 2,

2013, the defendants filed an answer, in which they

alleged, as a special defense, that ‘‘the [p]laintiff,

through the actions of her dogs, was teasing, tormenting

and abusing [Boo Boo].’’ On July 28, 2014, the plaintiff

filed a motion in limine to preclude photographs of Boo

Boo or Boo Boo’s injuries. On July 29, 2014, the court,

after a hearing, denied the plaintiff’s motion, agreeing

with the defendants that the photographs of Boo Boo

were probative of the defendants’ special defense.

A two day jury trial commenced that same day. The

only evidence the plaintiff presented that Boo Boo was

the proximate cause of her injuries was her own testimony that, while walking her dogs along the sidewalk,

an unleashed Boo Boo ran out of the defendants’ yard,

started barking at her dogs, and tried to nip and bite
them, which forced her dogs to act to protect themselves.2 On July 30, 2014, the jury returned a verdict in

favor of the defendants. In response to two separate

interrogatories, the jury indicated that (1) the plaintiff

did not prove thatBooBoo’s actions were the proximate

cause of her injuries and (2) the photographs of Boo

Boo’s injuries were evidence of teasing, tormenting,

or abusing.

On August 11, 2014, the plaintiff filed a motion to set

aside the verdict and for a new trial, arguing that the

photographs of Boo Boo’s injuries were admitted

improperly into evidence and that she was prejudiced

because the jury, through its answers to the interrogatories, indicated that it relied on the photographs to find

that the defendants proved their special defense. The

court denied the plaintiff’s motion, reasoning that the

jury concluded that she failed to prove an element of

her cause of action, i.e., causation, and, therefore, the

evidence of BooBoo’s injuries did not have to be considered by the jury to return a verdict in favor of the

defendants.

On appeal, the plaintiff claims that the court improperly (1) admitted the photographs of Boo Boo’s injuries

and (2) denied her motion to set aside the jury’s verdict

based on the improper admission of those photographs.

We conclude that the court properly denied the plaintiff’s motion to set aside the jury’s verdict because the

jury could have reasonably concluded that the plaintiff

failed to prove that Boo Boo was the proximate cause

of herinjuries. Accordingly, we need notreach the issue

of whether the photographs of Boo Boo’s injuries were

erroneously admitted into evidence or whether the

court erroneously denied the plaintiff’s motion to set

aside the verdict based on that purported evidentiary

error.

‘‘[T]he role of the trial court on a motion to set aside

the jury’s verdict is not to sit as a seventh juror, but,

rather, to decide whether, viewing the evidence in the

light most favorable to the prevailing party, the jury

could reasonably have reached the verdict that it did.

. . . A verdict is not defective as a matter of law as

long as it contains an intelligible finding so that its

meaning is clear. . . . A verdict will be deemed intelligible if it clearly manifests the intent of the jury. . . .

In reviewing the action of the trial court in denying the

motions . . . to set aside the verdict, our primary concern is to determine whetherthe court abused its discretion and we decide only whether, on the evidence

presented, the jury could fairly reach the verdict [it]

did.’’ (Internal quotation marks omitted.) Arnold v.

Moriarty, 140 Conn. App. 872, 879, 60 A.3d 317 (2013).

Based on our review of the evidence at trial in the

present case, the jury could have reached, fairly and

reasonably, a verdict for the defendants based on the

plaintiff’s failure to meet her burden of proof. Section
22-357 renders the owner or keeper of a dog strictly

liable to third parties for injuries that the dog caused

through its own ‘‘volitional conduct that is either vicious

or mischievous rather than innocent or involuntary.’’

Atkinson v. Santore, 135 Conn. App. 76, 81, 41 A.3d

1095, cert. denied, 305 Conn. 909, 44 A.3d 184 (2012).

The only evidence presented that Boo Boo caused the

fracas with Angelica, Roscoe, and Max, and therefore

proximately caused the plaintiff’s injuries, was the

plaintiff’s testimony that Boo Boo attacked her dogs

first. Based on the jury’s answer to the first interrogatory and its verdict in favor of the defendants, it is

reasonable to conclude, however, that the jury discredited that testimony. ‘‘It is not our position to dictate

which witnesses the jury should credit; [t]he trier [is]

free to accept or reject, in whole or in part, the testimony offered by either party.’’ (Internal quotation

marks omitted.) Arnold v. Moriarty, supra, 140 Conn.

App. 880.

Accordingly, the court did not err in denying the

plaintiff’s motion to set aside the jury’s verdict based on

an evidentiary claim relating to the defendants’ special

defense. See id., 879–80 (trial court properly denied

plaintiff’s motion to set aside verdict where jury reasonably could have found that plaintiff failed to prove damages, an essential element of her cause of action).

The judgment is affirmed.

1 General Statutes § 22-357 provides in relevant part: ‘‘If any dog does any

damage to . . . the body . . . of any person, the owner or keeper . . .

shall be liable for the amount of such damage, except when such damage

has been occasioned to the body . . . of a person who, at the time such

damage was sustained, was committing a trespass or other tort, or was

teasing, tormenting or abusing such dog. . . .’’

2 Conversely, Robert Preto-Rodas testified that Boo Boo was a rescue dog

and that their dog trainer believed he was most likely a victim of abuse.

Robert further testified that although Boo Boo occasionally would bark at

people, he was ‘‘very skittish’’ and would avoid coming near other people

or dogs because he was afraid of them. Margaret Preto-Rodas similarly

testified that although Boo Boo would bark, he was a skittish rescue dog.