KODI DALMAN v. ANTHONY BRAXTON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4709-07T34709-07T3

KODI DALMAN, an infant, by his

parents and natural guardians,

JOY PADILLA and DENNIS DALMAN,

SR., and JOY PADILLA and DENNIS

DALMAN, SR., individually,

Plaintiffs-Appellants,

v.

ANTHONY BRAXTON,

Defendant,

and

RAYMOND GEORGE, EXECUTOR of the

ESTATE of ELEANOR GEORGE, deceased,

Defendant-Respondent,

and

RAYMOND GEORGE,

Defendant/Third-Party

Plaintiff-Respondent,

v.

VALERIE STRICKLAND,

Third-Party Defendant.

____________________________________

ALLSTATE NEW JERSEY INSURANCE

COMPANY,

Plaintiff,

v.

KODI DALMAN, JOY PADILLA, DENNIS

DALMAN, SR., and RAYMOND GEORGE,

individually and in his capacity as

EXECUTOR of the ESTATE of ELEANOR

GEORGE,

Defendants.

 
 

Argued May 12, 2009 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-282-06.

Christian M. Perrucci argued the cause for appellants (Florio Perrucci Steinhardt & Fader, L.L.C., attorneys; Mr. Perrucci, on the brief).

John V. Mallon argued the cause for respondent Raymond George (Chasan Leyner & Lamparello, PC, attorneys; Mr. Mallon, of counsel and on the brief; Richard W. Fogarty, on the brief).

Michael Della Rover argued the cause for respondent The Estate of Eleanor George (O'Toole & Couch, LLC, attorneys; Brian R. O'Toole, on the brief).

PER CURIAM

Plaintiffs Kodi Dalman (Kodi), a minor, and his parents Joy Padilla and Dennis Dalman, Sr., appeal from the May 13, 2008 order granting summary judgment to defendants Raymond George (Raymond) and the Estate of Eleanor George, (the Estate). We reverse.

On July 8, 2004, Kodi was attacked by four dogs owned by defendant Anthony Braxton. In July 2006, plaintiffs filed a complaint against defendants Braxton, Raymond and Eleanor George, seeking damages not only for injuries suffered by Kodi, but also for emotional distress suffered by Padilla and Kodi's brother, John, when they witnessed the attack.

On November 16, 2007, the court granted a motion by Raymond to file a third-party complaint against Valerie Strickland, Braxton's girlfriend, alleging that she may have been responsible for releasing the dogs in Kodi's vicinity. The same day, the court granted plaintiffs' motion to consolidate this matter with a declaratory judgment action filed by Allstate Insurance Company, the insurer of Raymond and the Estate.

Following completion of discovery, the Estate and Raymond filed separate motions for summary judgment. On May 8, 2008, the trial court entered an order, supported by a written decision, granting defendants' motions.

I.

Raymond and his mother Eleanor George (Eleanor or collectively, the landlords), owned a three-unit residential building in Columbia. Plaintiffs resided in the third-floor apartment; Eleanor resided in the second-floor apartment; and Braxton resided in the first-floor apartment with his four Neapolitan Mastiff dogs.

The property's backyard was available to all the tenants. On July 8, 2004, Kodi, then five years old, tripped over a stick in the backyard and fell down. As he fell, Braxton's four dogs were let out of the first-floor apartment into the backyard. The dogs proceeded to attack Kodi. Upon being advised of the attack, Padilla ran downstairs and threw herself between Kodi and the dogs in an effort to protect her son. Kodi sustained serious injuries as a result of the attack.

In July 2006, plaintiffs filed a complaint against the landlords and Braxton, alleging that: 1) the landlords were negligent (Count One); 2) the landlords breached the lease agreement (Count Two); 3) the landlords breached the implied warranty of habitability by failing to keep the property in a reasonably safe condition (Count Three); 4) Braxton was strictly liable for all injuries arising out of the attack pursuant to N.J.S.A. 4:19-16 (Count Four); and 5) all defendants were liable for negligent infliction of emotional distress suffered by Padilla and Kodi's brother, John, as a result of their witnessing the four dogs attack Kodi (Count Five). Thereafter, the landlords moved for summary judgment.

In opposition to the summary judgment motions, Kodi's parents filed an affidavit setting forth their proofs concerning the landlords' knowledge of the dogs' vicious propensities.

Prior to our son's attack we both expressed our concern for the safety and welfare of our children to [d]efendant [landlords]. Specifically, we told [d]efendant Eleanor George that we feared for our children's safety because of the four Neapolitan Mastiff dogs that were also residing on the property. Further, we told [the landlords] that we would hear the dogs growling and we would see the dogs roam freely unattended by their owner on the property.

In addition, plaintiffs offered Dalman's deposition testimony where he testified that after expressing his concern about the dogs, Raymond advised him that Braxton was given permission by him to build the dogs a pen in the backyard.

The court granted summary judgment to the landlords, finding that, prior to the incident, "the landlords were not aware that the dogs had vicious propensities." The court reasoned:

[Raymond] states that there were complaints that the dogs barked, but claims he never heard a complaint that they growled. However, for purposes of this summary judgment motion, the court must accord the plaintiffs all legitimate inferences that can be drawn from the evidence presented to the court in the within motion. Therefore, the court will assume the landlords were advised of what the parents claim to have told the landlords.

First, the fact that the parents were afraid of the dogs and feared for their children's safety does not mean the dogs had a vicious propensity. A dog does not acquire vicious propensities because a person is afraid of it. Second, the fact that a dog is large does not mean it has a vicious propensity. There is not any evidence to suggest that the larger the dog, the more vicious the dog will be, let alone that the landlord believed such notion. Third, the fact that a dog roams about a piece of property is not an indicator that the dog has vicious tendencies at all. Fourth, the mere fact that a dog has been heard to growl does not mean that such dog has a vicious propensity and is likely to attack a human being. To simply advise the landlord that the dogs were growling does not impart to the landlords the requisite knowledge that the dogs had a vicious propensity.

II.

On appeal, plaintiffs argue that they presented issues of fact sufficient to defeat the motions for summary judgment, namely, that they presented sufficient evidence from which a jury could reasonably infer that the landlords were aware of the dogs' vicious propensities. We agree.

A trial court will grant summary judgment to the moving party if "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). An issue of fact is genuine only if "the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence." Brill, supra, 142 N.J. at 535. To make the determination, the judge must accept as true all evidence that supports the position of the party defending against the motion and accord him or her the benefit of all legitimate inferences which can be deduced therefrom. Ibid. If reasonable minds could differ, the motion must be denied. Ibid. The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Generally, "[u]nder the common law, . . . a landlord is not responsible for injuries caused by [his or her] tenant's dog." Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 71 (1999). Nevertheless, a landlord owes a duty to his or her tenants "to prevent injury from [a] tenant's dog if he [or she] is aware of the presence of the animal on his [or her] property and is also aware of its vicious propensities." Ibid.; see also Linebaugh v. Hyndman, 213 N.J. Super. 117, 121-22 (App. Div. 1986), aff'd o.b., 106 N.J. 556 (1987). Simply put, "in the absence of proof that the landlord was aware of the dog's vicious propensities, . . . liability should not be imposed upon the landlord." Seo, supra, 320 N.J. Super. at 72.

Here, giving plaintiffs all favorable inferences, the landlords knew that Braxton was housing the four dogs; accordingly, the issue is whether the statements made by Padilla and Dalman to the landlords of hearing the dogs' growl and observing the dogs roaming unattended while on the property constituted notice of the dogs' vicious propensities. In other words, did plaintiffs present sufficient facts from which a jury could reasonably infer that the landlords "knew or, in the exercise of reasonable care, should have known of the [dogs'] particular vicious . . . propensit[ies]." Model Jury Charge (Civil), 5.60B Animal with Vicious or Dangerous Trait or Propensity (other than an owner dog bite case). To determine whether an animal has a vicious propensity, that jury charge instructs as follows:

You may consider the attack on the plaintiff; the results of that attack; the (animal's) disposition when people approached it; its mischievousness, playfulness or over-demonstrated affection; and whether it had attacked any other person/property.

To find a vicious or dangerous trait or propensity, it is not necessary to find the [animal] had previously bitten/attacked/did the same act to someone/something.

On the other hand, the mere barking of a dog or other articulations of an animal or an isolated straining of a leash, would not necessarily demonstrate vicious or dangerous trait or propensity of the animal. You may find that the (animal) had vicious or dangerous propensities only if the nature and frequency of its acts furnished reasonable ground to believe that it might cause an injury by biting/overzealousness/mischievousness/

playfulness/over-demonstrated affection.

In their affidavit, Padilla and Dalman affirmed hearing the four large dogs growling while upon the property. However, without offering any support, the court found that growling could not evidence a vicious propensity. We are not aware of any authority to support that bold proposition. In fact, "[k]nowledge of a domestic animal's vicious propensities . . . may be established by proof of prior acts of a similar kind of which the [landlord] had notice, by evidence that it had been known to growl, snap, or bare its teeth[.]" 4 Am. Jur. 2d Animals 70 (2008) (emphasis added). In addition, "[a] vicious or dangerous disposition or propensity may consist of mere mischievousness or playfulness of the animal, which, because of its size or nature, might lead to injury." Id. at 69 (emphasis added).

We conclude that the court erred in granting the motions for summary judgment. The landlords were aware of the size and number of the dogs, and that they were permitted to run freely in the backyard. Although a dog's size alone will unlikely constitute notice of the animal's dangerous propensity, we are satisfied that a jury could reasonably infer that the landlords had knowledge or should have known of the dogs' dangerous propensities from the evidence that four dogs of nearly 200 pounds each were allowed to run loose on the property where plaintiffs' children played, notwithstanding that the dogs had been known to growl while in the yard. Under those facts, the issue of the landlords' notice of the dogs' dangerous propensities is an issue that should have been decided by the jury. It was not the trial court's function to weigh the evidence and determine the outcome, but only decide if a genuine issue of a material fact existed. Brill, supra, 142 N.J. at 520. Stated otherwise, the evidence was not so one-sided that the trial court should have decided that defendants should prevail as a matter of law. Ibid.

 
Reversed and remanded.

On September 11, 2007, as a result of the death of Eleanor George, plaintiffs filed an amended complaint substituting the Estate as a defendant.

Although Count Five includes a claim for negligent infliction of emotional stress on behalf of John, John is not included in the caption of the complaint.

(continued)

(continued)

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A-4709-07T3

June 16, 2009