CHARLES STAFFORD v. NATALIE KENNEDY

(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NOT FOR PUBLICATION WITHOUT THE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-4960-07T24960-07T2

CHARLES STAFFORD,

Plaintiff-Appellant,

v.

NATALIE KENNEDY and

OLIVER KENNEDY,

Defendants,

and

TOWNSHIP OF MAPLEWOOD;

MAPLEWOOD BOARD OF HEALTH;

ROBERT D. ROE, HEALTH OFFICER;

and JOHN VINCENT, ANIMAL

CONTROL OFFICER,

Defendants-Respondents.

__________________________________________________________

 

Argued March 31, 2009 - Decided

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Civil Part, Essex County,

Docket No. L-8052-05.

David Lustbader argued the cause for appellant

(Philip M. Lustbader, David Lustbader, P.C.,

attorneys; Mr. D. Lustbader, on the brief).

Richard P. Cushing argued the cause for

respondent (Gebhardt & Kiefer, P.C., attorneys;

Mr. Cushing, of counsel; Robert V. Fodera and

Arthur D. Fialk, on the brief).

PER CURIAM

This is a dog bite case. On June 2, 2005, while walking on a sidewalk in Maplewood, plaintiff Charles Stafford was bitten by a Pit Bull named "Tank." Tank was either owned or controlled by Natalie Kennedy and her brother, Oliver Kennedy. Plaintiff filed a personal injury lawsuit against the Kennedys; the Township of Maplewood; the Maplewood Board of Health; Health Officer, Robert D. Roe; and Animal Control Officer, John Vincent (collectively, "the Maplewood defendants"). Plaintiff appeals from an order granting summary judgment to the Maplewood defendants and an order denying plaintiff's motion for reconsideration. We affirm.

On May 17, 2005, less than a month before plaintiff was bitten, Tank had attacked and bitten another individual who had walked on the Kennedys' front lawn. This initial incident was reported to the Maplewood Police Department on the day that it happened, and Officer Yacuk, who investigated the matter, gave a copy of his written report to John Vincent, the Township's Animal Control Officer.

After Vincent discussed the matter with his supervisor, Health Officer Robert Roe, Vincent issued a "NOTICE OF BITE AND CONFINEMENT OF ANIMAL," pursuant to N.J.S.A. 26:4-82. The notice directed Natalie Kennedy to "confine the animal in a secure manner" on her premises for a period of ten days, until May 27, 2005. In addition, Kennedy was advised that her dog was to be quarantined to determine if the animal was contagious with rabies. During the ten-day quarantine, Vincent observed the dog on two separate occasions, and he never saw any aggressive behavior or signs that the animal was potentially dangerous or vicious. On May 27, Vincent observed that Tank was "healthy and free of rabies symptoms," and he issued a certificate of release in accordance with N.J.S.A. 25:4-85.

Tank's second biting incident, at issue here, occurred on June 2, 2005. According to plaintiff, the dog "ran off the [Kennedys'] property . . . and viciously attacked" him. Once again, the dog was quarantined. In addition, Health Officer Roe suggested to Natalie Kennedy that she should "consider putting Tank down." On June 14, 2005, Roe learned that the dog had been euthanized at the Maplewood Animal Hospital.

Plaintiff's complaint was filed on October 7, 2005. In count one, plaintiff alleged that Natalie Kennedy and Oliver Kennedy were negligent for allowing Tank to "escape onto the public sidewalk" and attack him. In count two, plaintiff claimed that the Kennedys were strictly liable for the actions of their dog under the dog bite statute, N.J.S.A. 4:19-16. And in count three, plaintiff alleged that the Maplewood defendants' conduct was "negligent, palpably unreasonable and violate[d] duties imposed upon them under the Tort Claims Act."

On December 20, 2007, the trial court granted the Maplewood defendants' motion for summary judgment. In its written decision, the trial court ruled that plaintiff's claims were barred based upon the immunity provisions of N.J.S.A. 59:2-3 and N.J.S.A. 59:3-2.

On appeal, plaintiff presents the following arguments:

POINT I

PLAINTIFF RAISED A PRIMA FACIE CASE AGAINST MAPLEWOOD AND ITS EMPLOYEES.

POINT II

DEFENDANT JOHN VINCENT'S SUPPLEMENTAL CERTIFICATION FILED ON THE MOTION FOR RECONSIDERATION CONTRADICTED HIS POSITION IN HIS DEPOSITIONS AND CREATES A QUESTION OF FACT FOR THE JURY.

Plaintiff's primary argument is that N.J.S.A. 59:2-3 and N.J.S.A. 59:3-2, which immunizes public entities and public employees from injuries "resulting from the exercise of judgment or discretion," do not shield the Maplewood defendants from liability because they were negligent in carrying out "ministerial functions." N.J.S.A. 59:2-3(d); N.J.S.A. 59:3-2(d). We conclude that plaintiff's arguments are without sufficient merit to warrant extended discussion in a written opinion, Rule 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated by Judge Ryan, with only the following comments.

"A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity," N.J.S.A. 59:2-3(a), and "[a] public employee is not liable for an injury resulting from the exercise of judgment or discretion vested in him." N.J.S.A. 59:3-2(a). However, "[n]othing . . . shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions." N.J.S.A. 59:2-3(d). Likewise, "[n]othing . . . shall exonerate a public employee for negligence arising out of his acts or omissions in carrying out his ministerial functions." N.J.S.A. 59:3-2(d).

We agree with Judge Ryan's determination that the Maplewood defendant's actions were not ministerial in nature. A ministerial act is "one in which a 'person . . . performs under a given set of facts in a prescribed manner . . . without regard to the exercise of . . . judgment upon the propriety of the act being done.'" Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 495 (App. Div. 2000) (quoting Kemp by Wright v. State, 147 N.J. 294, 308 (1997)); see Marley v. Borough of Palmyra, 193 N.J. Super. 271, 289 (Law Div. 1983) (stating that the Tort Claims Act "distinguishes mandatory and discretionary actions using the term 'ministerial' rather than 'mandatory'").

According to plaintiff, Tank should have been recognized as vicious and destroyed after the first attack which occurred only sixteen days before plaintiff was bitten. Thus, plaintiff contends that the Maplewood defendants were required to issue a summons, seize and impound the dog under N.J.S.A. 4:19-19, and that the statute conferred no discretion on the part of the officials to act otherwise. However, N.J.S.A. 4:19-19, is couched in discretionary language and is not ministerial in nature. N.J.S.A. 4:19-19, provides, in relevant part,

An animal control officer shall seize and impound a dog when the officer has reasonable cause to believe that the dog:

a. attacked a person and caused death or serious bodily injury as defined in N.J.S. 2C:11-1(b) to that person;

b. caused bodily injury as defined in N.J.S. 2C:11-1(a) to a person during an unprovoked attack and poses a serious threat of harm to persons or domestic animals;

c. engaged in dog fighting activities as described in R.S. 4:22-24 and R.S. 4:22-26; or

d. has been trained, tormented, badgered, baited or encouraged to engage in unprovoked attacks upon persons or domestic animals.

The dog shall be impounded until the final disposition as to whether the dog is vicious or potentially dangerous. Subject to the approval of the municipal health officer, the dog may be impounded in a facility or other structure agreeable to the owner.

Because Tank's first attack (on May 17, 2005) did not cause death or serious bodily injury, the Maplewood defendants were required to have "reasonable cause" to believe that the attack caused bodily injury "during an unprovoked attack." N.J.S.A. 4:19-19(b). Additionally, the Maplewood defendants were required to determine whether the dog posed "a serious threat of harm to persons or domestic animals." Ibid. Thus, the Maplewood defendants' conduct was not ministerial because the statute requires a series of discretionary findings before a potentially dangerous dog can be seized and impounded. See Cogsville v. Trenton, 159 N.J. Super. 71, 72-73 (App. Div. 1978) (rejecting plaintiffs' claim that the City of Trenton should be liable for dog bite injuries because "the dangerous propensities of the dog had been known to the Trenton police and public health departments for at least six months as a result of prior incidents").

Affirmed.

Natalie and Oliver Kennedy are not involved in this appeal. A default judgment was entered against Oliver Kennedy on June 2, 2008, and Natalie Kennedy filed for bankruptcy.

(continued)

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A-4960-07T2

June 18, 2009