Connecticut Trial Court Official Decisions
Unpublished
KENSINGTON SQUARE II LIMITED v. PEREZ, No. SPNH 9508 44105 (Oct. 17, 1995) KENSINGTON SQUARE II LIMITED PARTNERSHIP vs. PEREZ, ABIGAIL, LOPEZ, ISRAEL 1995 Ct. Sup. 11300, 15 CLR 384 No. SPNH 9508 44105 Connecticut Superior Court, Housing Division at New Haven October 17, 1995
[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE’ WHETHER ALLEGATION OF BREEDING AND SELLING PIT BULL DOGS IN PREMISES CONSTITUTES A SERIOUS NUISANCE
JONES, J.
The issue presented in this case is whether the plaintiff
has stated a claim upon which relief can be granted by
alleging that the defendants’ breeding and sale of pit bull
dogs in the apartment that the defendants lease from the
plaintiff is sufficient to demonstrate a serious nuisance
pursuant to General Statutes § 47a-15?
On July 28, 1995, the plaintiff, Kensington Square II
Limited Partnership, through its attorney, served a notice
to quit upon defendants Abigail Perez and Israel Lopez. The
notice to quit alleged a violation of General Statutes
§ 47a-15; namely, engaging in conduct constituting a
serious nuisance. The notice to quit terminated the lease
and required the defendants to quit possession on or before
August 6, 1995. The defendants remain in possession of the
apartment.
The plaintiff brought this summary process action by a
complaint which alleges that the defendants through the
breeding and sale of pit bull dogs on the premises have
engaged in conduct constituting a serious nuisance, as
defined by Gen. Stat. Sec. 47a-15, since such conduct
exposes other tenants and/or the landlord to immediate and
serious danger.
The defendants have filed a Motion to Strike the complaint
on the ground that, assuming the truth of the allegation
that the defendants are engaged in the `breading and sale
of pit bull dogs in the premises’, such conduct as a matter
of law does not constitute an immediate and serious danger
to the safety of other tenants or the landlord. In a
memorandum in opposition to the Motion to Strike, the
plaintiff argues that the breeding and sale of pit bull
dogs in the premises constititute a serious nuisance CT
Page 11300-A under the law. Furthermore, the plaintiff
claims that it should be allowed an opportunity to
establish the factual allegations of the complaint.
The function of the motion to strike is to test the legal
sufficiency of a pleading. RK Constructors, Inc. v. Fusco
Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). “In
deciding upon a motion to strike or a demurrer, a trial
court must take the facts to be those alleged in the
complaint . . . and cannot be aided by the assumption of
any facts not therein alleged.” (Citation omitted; emphasis
in the original.). Liljedahl Bros., Inc. v. Grigsby, 215
Conn. 345, 348, 576 A.2d 149 (1990).
General Statutes § 47a-15 provides in pertinent
part: “Prior to the commencement of a summary process
action, . . . to evict based on . . . conduct by the tenant
which constitutes a serious nuisance . . . , the landlord
shall deliver a written notice to the tenant specifying the
acts or omissions constituting the breach and that the
rental agreement shall terminate upon a date not less than
thirty days after receipt of the notice. . . . For the
purposes of this section, `serious nuisance’ means (A)
inflicting bodily harm upon another tenant or the landlord
or threatening to inflict such harm with the present
ability to effect the harm and under circumstances which
would lead a reasonable person to believe that such threat
will be carried out, (B) substantial and wilful destruction
of part of the dwelling unit or premises, (C) conduct which
presents an immediate and serious danger to the safety of
other tenants or the landlord, or (D) using the premises
for prostitution or the illegal sale of drugs.” (Emphasis
added.) This Court notes that the complaint does not
contain an allegation that the pit bulls are behaving in
any way harmful or threatening to the plaintiff or to any
of its tenants. Thus, to fall within the definition of the
“serious nuisance” defined by Sec. 47a-15, the defendant’s
breeding and sale of pit bulls must constitute n conduct
which presents an immediate and serious danger to the
safety of other tenants or the landlord.” Inasmuch as the
Court has found no pertinent Connecticut law on the pit bull
issue presented here, an examination of the law in other
jurisdictions may be helpful.
I. Background CT Page 11300-B
In response to the problem of serious attacks on people by
pit bull dogs, “. . . lawmakers in several cities and towns
have enacted legislation requiring pit bull dog owners to
observe special regulations. Comment, “The New Breed of
Municipal Dog Control Laws: Are They Constitutional ?”, 53
U. Cin. L. Rev. 1067 (1984) (hereinafter Comment, “The New
Breed”). “The perception that pit bull dogs are dangerous
is based upon the increasing number of reported attacks on
people, the physical characteristics of the dog, and the
historical use of the dogs as fighters.” (Footnotes
omitted.) Id. 1075-76. Although each city’s law is
different, one breed of dog has been singled out as
inherently dangerous to society.” (Emphasis added.) Id.,
1069.
According to one source, “[s]ince 1983, pit bulls have
inflicted 21 of the nation’s 29 fatal canine attacks. All
five dog bite deaths reported for 1987 have involved pit
bulldogs.” “Pit Bulls — Dangerous or Misunderstood
?”, 14 Current Mun. Probs. 497 (1988). “The pit bull
population in America is less than one percent of the total
dog population in this country. Yet that one percent
accounted for over 70 percent of the canine-related deaths
in the United States in the last four years.” (Emphasis
added.) Id., 501.
In a 1989 study published in the Journal of the American
Medical Association (JAMA) concerning the number of people
killed by dog bites in the United States from 1979 through
1988 and the breeds of dogs involved, pit bulls were
responsible for 42 (41.6%) of 101 deaths where dog breed
was reported, which was three times the rate for German
shepards, the second most common breed involved. J. Sacks
et al., “Dog Bite-Related Fatalities from 1979 through
1988”, 262 JAMA 1489 (1989). Of the 157 dog-bite fatalities
identified, 70% occurred among children who were less than
10 years of age. Id., 1490. Although the yearly number of
dog-bite related fatalities changed little from 1979
through 1988, the proportion of fatal attacks involving pit
bulls increased from 20% in 1979 and 1980 to 62% in 1987
and 1988. Id., 1490-91. Of the 41 attacks that involved pit
bulls, 15 (36.6%) involved a stray, compared with 11
(18.6%) of 59 for other breeds. Id., 1491. Although the
authors concede that breeds may be misclassified by news
stories and the recent attention directed toward these dogs
may lead to media overreporting of pit bull-related
incidents relative to other species, “pit bulls CT Page
11300-C seemed to be involved in 42% of the fatalities.”
Id., 1492.
Opponents of the pit bull “say it is worse than all other
dogs, and inherently dangerous.” (Emphasis added.) “Killer
Genes Ate My Dog,” Economist, June 1, 1991, 83. While
defenders of this breed may claim that in the hands of a
sensible owner the pit-bull will cause no more trouble than
any other breed, one author suggests that “[t]ere is good
reason to doubt this.” Id. “The pit-bull has been bred as a
fighting dog. German shepards, Doberman pinschers and
rottweilers are all bred to guard human masters, their
livestock and their property. Pit-bulls are designed to
kill other dogs. . . . [I]t is the unpleasant behavior bred
into the dogs that makes them particularly nasty.”
(Emphasis added.) Id. According to one source, selective
breeding of pit bulls has resulted in a breed which is much
more easily aroused than most dogs, incredibly tenacious,
insensitive to pain, and that attacks without warning. Id.
While generally appropriate discipline will quickly cause
“pups” to stop making trouble, “it is unlikely that this
would work for the pit-bull, whose behavior deviates so
much from the normal pattern of a dog’s life.” Id.
Owners of pit bulls defend their pets as a misunderstood
breed. See V. Hearne, “Lo, Hear the Gentle Pit Bull!,”
Harper’s, June 1985, 59. Among those who train dogs
professionally, “pit bulls are generally recognized as an
amiable, easy going lot. If pit bulls have a flaw in their
relationship to people it is that they sometimes show a
tendency toward reserve, a kind of aloofness that is a
consequence of their being prone to love above all else
reflection and meditation.” Id., 61. While describing them
as “gamely dogs,” the author claims that the horror stories
“tend to be told about just those breeds that are the best
prospects for work with, say, the old, or those in
wheelchairs.” Id., 63. While the author praises pit bulls,
she does not recommend them for everyone: “They do like to
fight other dogs, and they are, as you must realize by now,
a tremendous spiritual responsibility.” Id., 67.
“While a deadly assault is tragic, it is unduly oppressive
to classify pit bull dogs as uniquely dangerous. Many
breeds are capable of and responsible for fatal attacks on
people. A 1982 report found that sixteen different breeds
were responsible for seventy-three fatal attacks on
people.[fn1] Pit bull dogs were responsible for six
fatalities, the same number as Great Danes.[fn2] Statistics
on dog bites also demonstrate that CT Page 11300-D pit
bull dogs are not uniquely dangerous. In the first ten
months of 1983, the Cincinnati Health Department
investigated 478 dog bites, involving thirty different
breeds.[fn3] This investigation found that pit bull dogs
were responsible for only about seven percent of the
injuries to people.[fn4]” (Emphasis added.) Comment, “The
New Breed,” supra, 1077. “These statistics do not support
the conclusion that pit bull dogs pose a greater threat to
the community than any other breed. Therefore, regardless
of the media attention focused on pit bull dog attacks, it
appears that it is arbitrary to classify only one breed as
inherently vicious.” (Emphasis added.) Id.
One author contends that we must “recognize the current
problem of vicious dogs at its source: the individual dog’s
owner. Dogs are the products of their past and present
masters. . . . One breed is not inherently good or evil,
vicious or docile, harmful or helpful. Individual dogs can
be selectively in-bred and trained to be aggressive, and.
currently, it appears many pit bull dogs are being abused
in this way. . . . People determine whether dogs will be
useful inhabitants of a community or nuisances. It is the
people who breed and foster viciousness in dogs whom
legislators also must control.” (Emphasis added.) Id.,
1081.
In support of an opposing view, others contend that the
fact “[t]hat the pit bull is a clear threat to public safety
can best be shown through an examination of the history,
physical characteristics, and traits of the breed. . . .
Historically, these animals were used in the `sport’ of
bull baiting. After bull baiting was outlawed, owners of
these fierce and indefatigable dogs chose to make use of
their dogs’ die-hard tendencies in organized dogfights.” S.
Sullivan, “Banning the Pit Bull: Why Breed-Specific
Legislation is Constitutional,” 13 U. Dayton L. Rev. 279,
282 (1988).
“Despite the fact that dog fighting is outlawed in all
fifty states, and classified as a felony in thirty-six,
illegal dog fighting involving pit bulls continues today.
The very reasons dogfighters choose pit bulls for this
arena highlights the qualities of these dogs that make them
unfit to live in residential communities. First, the pit
bull possesses capabilities beyond those of other dogs.
Biting with a force of 1800 to 2000 pounds per square inch,
twice the force of the average Doberman Pinscher or German
Shepherd, pit bulls possess jaws so specialized that the
jaws lock onto the object bitten. CT Page 11300-E Second,
the pit bull has been selectively bred to fight without
provocation and to continue to fight until it is near death.
The dogs’ genetically-based insensitivity to pain also
helps to explain why it is often very difficult to beat
them off of their victims. Most frightening, pit bulls do
not give any warning signals before an attack, and they do
not stop attacking even when their victim submits.”
(Emphasis added; footnotes omitted.) Id., 283-84.
“Defenders of the pit bull assert that the problem lies
not with the breed, but with irresponsible owners. Owners
have been known to cruelly mistreat their animals so that
they excel either as savage fighters, as vicious sentinels
over illegal or illegally-obtained goods, or as lethal
weapons in the perpetration of crimes. Nevertheless, owners
alone cannot be blamed for the vicious behaviors of this
particular breed, since cases have also been reported where
the family pet pit bull has suddenly turned on its owners.
Hence, the regulation of the pit bull cannot simply be left
to the discretion of the individual because the breed’s
behavior is too unpredictable.” (Emphasis added; footnotes
omitted.) Id., 284. “The keeping of pit bull dogs should be
viewed as analogous to the keeping of wild animals such as
lions and bears, and the state’s power to regulate pit
bulls should be similarly expansive. Not unlike the lion,
the pit bull is an unpredictable and ‘potentially dangerous
animal, capable of doing harm, if loose, and even if
attended . . . capable of doing harm to its owner or
handler.'” Id., 287, quoting Warren v. Testa, 461 N.E.2d
1354, 1358 (Ohio C.P. 1983) (upholding prohibition on lions
within city limits).
II. Case Law
In Zuniga v. San Mateo Dept. of Health Serv., 218
Cal.App.3d 1533, 267 Cal.Rptr. 755. (Cal.App. 1 Dist.
1990), the court held that the findings by a hearing
officer that the appellant’s pit bull puppies were
“dangerous animals” under a county ordinance, based on
evidence that the parents of the puppies were fighting
dogs, county employees testified that the puppies exhibited
extremely aggressive behavior when caged together, and the
owner was a known dog fighter, were insufficient where no
expert evidence was presented on the cause an nature of the
inherent dangerousness of the puppies.
“[W]e find no evidence that these [then] six-month-old
puppies confined in kennels constitutes a threat to the
public CT Page 11300-F safety.” Id., 761. “Regarding the
reported aggressive behavior, there is no indication that
the puppies threatened human health and safety, as required
under the ordinance definition. Nor was there evidence that
the young puppies had ever harmed each other or engaged in
unprovoked attacks on humans or other animals. The
governing ordinance does not make aggressive behavior among
caged puppies the criteria for a finding of dangerousness.
Moreover, the unspecified behavior observed by the county
staff fails to support a finding of inherently dangerous
nature, because in the absence of testimony regarding the
cause of such behavior, it could be easily attributed to a
number of factors including the fact of being caged.” Id.
“Commentators have noted that a dog’s propensity to bite
results from a combination of many factors, including a
genetic predisposition towards aggression, lack of early
socialization with people, specific training to fight, the
quality of care provided by the owner, and the behavior of
the victim. (Lockwood, Vicious-Dog Legislation-Controlling
the Pit Bull, 13 Univ. Dayton L. Rev. 267, 270, citing a
1987 study.) `Thus a dog whose genetic predisposition is to
be aggressive may present little or no danger if the dog is
well-trained and reasonably supervised, whereas an animal
with little innate tendency to bite may become dangerous if
improperly trained, socialized, supervised, treated, or
provoked.’ (Ibid.; Note, The New Breed of Municipal Dog
Control Laws: Are They Constitutional? (1984) 53 Cinn. L.
Rev. 1067, 1077 [citing a survey showing `pit bull’ type
dogs are not uniquely dangerous].).” Id.
“There was no evidence presented at the hearing regarding
the proposed future disposition of the puppies which would
support a finding that any factors indicating a danger to
the public would result. Absent expert evidence on the
cause and nature of the puppies perceived aggressive
behavior, which might fulfill the ordinance requirement of
“inherent nature,” or any indication of how the nature of
the puppies adversely impacts public health or safety, the
hearing officer’s conclusion regarding an inherently
dangerous nature is singularly speculative.” (Emphasis
added.) Id., 761-62.
Despite the above holding in Zuniga, numerous decisions
have upheld strict regulations and even bans on pit bull
dogs. In upholding a village ban on pit bulls in Garcia v.
Village of Tijeras, 108 N.M. 116, 767 P.2d 355, 358
(N.M.App. 1988), cert. denied, 107 N.M. 785, 765 P.2d 758
(1988), the court stated that CT Page 11300-G “[t]he trial
court’s findings were to the effect that American Pit Bull
Terriers presented a special danger to the health and
safety of Village residents. The evidence supports this
determination.” (Emphasis added.).
“Village witnesses testified concerning a number of
specific incidents involving pit bull attacks in the
Village.” Id., 358. “As a compliment to the testimony
regarding specific incidents, the Village also presented
evidence establishing that the American Pit Bull Terrier
breed possess inherent characteristics of aggression,
strength, viciousness and unpredictability not found in any
other breeds of dog. The testimony indicates that American
Pit Bull Terriers are frequently selected by dogfighters
specifically because of their extraordinary fighting
temperament. In a fight or attack, they are very aggressive
and the most tenacious dog of any breed. They continue
their attack until they are separated or their victim is
destroyed. Unlike other breeds of dog that ‘bite and slash’
in an attack, pit bulls will `bite and hold,’ thereby
inflicting significantly more damage upon their victim.”
(Emphasis added.) Id., 359. “Testimony was also presented
that pit bulls are especially dangerous due to their
unpredictability. . . . American Pit Bull Terriers have been
known to be friendly and docile at one moment . . . and at
the next moment attack in a frenzied rage. . . . There was
testimony to the effect that such berserk frenzies do not
occur in other breeds of dog. . . . There was further
evidence to show that, in proportion to their population,
more dog-bite incidents are caused by American Pit Bull
Terriers than by other breeds.” Id.
“Plaintiffs produced contrary evidence to the effect that
environment and training are more important than genetics
in determining the behavior of a dog. Many breeders,
including plaintiff Amacker, breed American Pit Bull
Terriers for the show ring, where aggressiveness towards
humans would disqualify them. Evidence was presented
concerning the history of this breed of dog that indicated
it was not bred for aggressiveness towards humans. . . .
Evidence was presented to establish that other breeds of
dog are responsible for more of the total number of bite
incidents every year than are American Pit Bull Terriers.”
Id., 360.
Notwithstanding the evidence presented by the plaintiffs,
the court believed that the evidence amply supports the
trial court’s findings concerning the threat to the safety
of the CT Page 11300-H resident of the Village presented
by American Pit Bull Terriers.” Id. In light of the
“unusual prevalence of dogs of this breed in the Village,
and of the evidence presented concerning the inherent
characteristics of aggression, strength, and
unpredictability of this breed,” the court found that “the
ordinance banning possession of American Pit Bull Terriers
is reasonably related to protecting the health and safety
of the residents of the Village.” (Emphasis added.) Id. The
court concluded that “the evidence adduced at trial
supports the inference that a significant number of such
dogs are dangerous due to training and upbringing, as well
as their inherent characteristics of aggression, strength,
viciousness and unpredictability.” (Emphasis added.) Id.,
362.
Likewise, in Vanater v. Village of South Point, 717 F.
Sup. 1236, 1243 (S.D.Ohio 1989), the court found that the
“evidence indicates that Pit Bulls possess the inherent
characteristics of exceptional aggression, athleticism,
strength, viciousness and unpredictability which are unique
to the breed; they possess an extraordinary fighting
temperament and have been shown to be the most tenacious
dog of any breed; they have a history of unpredictability
and instantaneously attacking in a berserk and frenzied
rage and have the ability to inflict significant damage
upon their victims.” (Emphasis added.). The court found
that the “unquantifiable, unpredictable aggressiveness and
gameness of Pit Bulls make them uniquely dangerous;” id.,
1240; and that the ordinance was a reasonable response to
the “special threat” that the pit bull breed presented
“based upon their phenotypical characteristics and the
traits which have been bred into the breed.” (Emphasis
added.) Id., 1246.
Finally, in Hearn v. City of Overland Park, 244 Kan. 638,
772 P.2d 758, 765, cert. denied 493 U.S. 976, 110 S.Ct. 500
(1989), the “[d]efendant city introduced expert testimony
that pit bull dogs are both more aggressive and destructive
than other dogs. Pit bull dogs possess a strongly developed
`kill instinct’ not shared by other breeds of dogs. This
testimony indicated that pit bull dogs are unique in their
`savageness and unpredictability.’ Research indicates that
pit bull dogs are twice as likely to cause multiple
injuries as other breeds of dogs.”
“Moreover, the injuries inflicted by pit bull dogs are far
worse that [sic] those inflicted by other breeds. One CT
Page 11300-I witness, testifying as an expert on trauma
injuries, testified that pit bull dog attacks inflicted
injuries much more horrific than those in other dog attacks
and were comparable. In his experience, only to those
injuries inflicted in attacks by lions. The district court
was also presented with a survey of 278 dog attacks
indicating that a majority (54.1%) represented attacks by
pit bull dogs. Of the 32 known human deaths in the United
States due to dog attacks since July 1983, 23 were caused
by attacks by pit bull dogs.” (Emphasis added.) Id. The
court concluded that “[t]he unique public health hazard
created by the presence of pit bulls within the community
justifies the city’s attempt to regulate this breed of
dog.” Id.
It has been found that pit bull dogs have been bred to and
do “possess inherent characteristics of aggression,
strength, viciousness and unpredictability not found in any
other breeds of dog.” See Garcia v. Village of Tijeras,
supra, 767 P.2d 359. At the sane time, “a dogs
predisposition to bite results from a combination of many
factors, including a genetic predisposition towards
aggression, lack or early socialization with people,
specific training to fight, the quality of care provided by
the owner, and the behavior of the victim.” zuniga v. San
Mateo Dept. of Health Serv., supra, 267 Cal.Rptr. 761.
This Court finds that the literature and scientific
findings relative to the pit bull dog are insufficient for
a judicial finding that the defendants’ pit bull dogs are
per se an immediate and serious threat to the plaintiff or
to any of its other tenants. Given the absence of such a
finding, and the absence in the complaint of an allegation
of menacing behavior by the animals, the Court finds that
granting the Motion to Strike would be appropriate.
Accordingly, the Motion to Strike is granted.
Clarance J. Jones, Judge
[fn1] Citing Pickney & Kennedy, “Traumatic Deaths from Dog
Attacks in the United States,” 69 Pediatrics 193-94 (1982).
“The report identified the following as responsible for
human fatalities during the study period from May, 1975 to
April, 1980: German Shepard (16); Husky (9); St. Bernard
(8); Bull Terrier (6); Great Dane (6); Malamute (5); Golden
Retriever (3); Boxer (2); Dachshund (2); Doberman Pinscher
(2); Collie (2); Rottweiler (1); Basenji (1); CT Page
11300-J Chow-Chow (1); Labrador Retriever (1); Yorkshire
Terrier (1); mixed and unknown breeds (15).” Comment, “The
New Breed,” supra, 1077 n. 62.
[fn2] Citing Pickney & Kennedy, supra, 194.
[fn3] Citing Cincinnati Health Department, 1983 Statistics
on Dog Bites Investigated by the Department (Jan. 1
– Oct. 6, 1983) (unpublished data available from
City of Cincinnati Health Department) (hereinafter
Cincinnati Health Department 1983 Statistics).
[fn4] Citing Cincinnati Health Department 1983 Statistics.
“Similar percentages were reported for Riverside, California
where pit bulls accounted for less than 6% of 667 reported
bites.” Comment, “The New Breed,” supra, 1077 n. 65.