MARY ROSE FERTITTA-ZEPP v. GAITWAY FARMS, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6217-08T3

MARY ROSE FERTITTA-ZEPP,

Plaintiff-Appellant,

v.

GAITWAY FARMS, INC.; RALPH

FERRARA; RICHARD JACK; ERIC

TROSTEM and STAKE YOUR

CLAIM STABLES, INC.,

Defendants-Respondents,

and

ROSS CROGHAN; EQUINE RACING

ENTERPRISES; SHAWN VALLEE

and TODD MARCIANO,

Defendants.

_________________________________

May 20, 2011

Argued February 16, 2011 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,Law Division, Monmouth County, Docket No. L-5316-05.

Daniel F. Sahin argued the cause for appellant (Daniel F. Sahin, P.C., attorneys; Mr. Sahin and Michael A. Tooshi, on the brief).

Paul F. Clark argued the cause for respondents Ralph Ferrara, Richard Jack, Eric Trostem, and Stake Your Claim Stables, Inc. (Wade, Clark, Mulcahy, attorneys; Mr. Clark and Sheila N. Osei, on the brief).

PER CURIAM

Plaintiff, a former racehorse groom who sustained injuries after being attacked by a racehorse, appeals from the trial court order granting summary judgment dismissing her complaint against defendants, Gaitway Farms, Inc. (Gaitway Farms),1 the owner of the premises where the incident occurred; Ralph Ferrara (Ferrara), Richard Jack (Jack), and Eric Trostem (Trostem),2 the shareholders and officers of Stake Your Claim Stables, Inc. (Stake Your Claim); and Stake Your Claim, the horse's owner.3 We affirm.

I.

The undisputed facts upon which the court relied in reaching its decision establish that plaintiff is an experienced groom who, for several years prior to the incident, worked as a full-time employee of Ross Croghan (Croghan), a racehorse trainer and sole shareholder of Equine Racing Enterprises (Equine Racing). Plaintiff left the employ of Croghan in 2000 after she and Croghan had differences over her request to take a day off so she could "take the Post Office test" because she "wanted to better [her]self." On December 7, 2003, she was kicked in the face by Kelly Mote N,4 a horse owned by Stake Your Claim, trained by Crogan and boarded at Gaitway Farms. The horse kicked her in the face with his hind legs while she was removing it from a device known as an equiciser, an indoor fenced-in exercise track for horses. At the time of the attack, plaintiff was filling in for another groom, Nancy Corley (Corley). The two grooms had an arrangement whereby plaintiff agreed to occasionally cover Corley's Sunday shifts. During those shifts, plaintiff would "tak[e] care" of the horses assigned to Corley, which included cleaning stalls and giving the horses water. Corley testified that "[s]he could put [the horses] on the walker if she wants to while she does the stalls or else put them out on cross ties[,]" and she would not have asked plaintiff to put a horse on the walker, but that "would have been her own decision[.]" Kelly Mote N was one of the horses assigned to Corley. During the eight months prior to the attack, plaintiff covered for Corley at least three Sundays each month. She never complained about Kelly Mote N's disposition or reported any other difficulties with the horse. Croghan was also unaware of any behavior problems with the horse.

During discovery, however, plaintiff obtained a copy of the horse's equipment card. An equipment card is a ledger of all the devices (i.e. earplugs, bridles, boots, bits, etc.) a horse needs for a particular race. It is kept on file at racetracks and primarily used by horse trainers, but the general public can access them upon request. James Kopacz (Kopacz), an equipment manager and horse identifier at the Meadowlands Racetrack, testified in his deposition that he prepared Kelly Mote N's equipment card and wrote the words "bad actor" in the "top right-hand portion" of the card. When asked what he meant by the phrase, Kopacz explained that although he could not remember his specific encounter with the horse, he probably wrote "bad actor" to signify that the animal had given him serious problems while he was inspecting it: "[T]his is a horse that had to do something to me. In the [past fifteen years,] . . . I probably wrote bad actor down on maybe ten horses that have been bad enough that I would do something like that. And these are thousands of horses that I have checked." Kopacz explained that the term "bad actor" was his own term -- not an industry term -- which he used to remind himself which horses gave him problems in the past, so he could take proper precautions when inspecting those horses in the future.

Jack testified during his deposition that he never saw the equipment card before buying Kelly Mote N because he was "not the trainer of the horse, therefore, [the] equipment card [would be] meaningless to [him] personally." Croghan, on the other hand, acknowledged he likely reviewed Kelly Mote N's equipment card when he claimed the horse, but denied ever seeing the "bad actor" notation on the card. According to Croghan, equipment cards serve a very limited purpose, "to piece together the horse's equipment." Croghan explained that typically, if a horse has a behavioral issue, the prior trainer or caretaker would relay that information to the new trainer and no such information was conveyed to him at the time Kelly Mote N was purchased.

Stake Your Claim moved for summary judgment, arguing plaintiff did not demonstrate that it knew or should have known about Kelly Mote N's violent propensities before the accident. Plaintiff opposed the motion, arguing the "bad actor" notation was sufficient to give Stake Your Claim at least constructive knowledge of the animal's violent temperament. The motion judge granted summary judgment, finding that plaintiff failed to present any evidence that Stake Your Claim had actual or constructive notice of any dangerous propensities of Kelly Mote N. Likewise, the court concluded there was no evidence the individual shareholders, who delegated the training and care of Kelly Mote N to Croghan, had actual or constructive notice of the horse's dangerous propensities. The present appeal followed.

On appeal, plaintiff urges that genuinely disputed issues of fact precluded the grant of summary judgment in favor of Stake Your Claim. We disagree.

II.

In our review of a grant of summary judgment, we employ the same standards used by the trial court, which grants summary judgment if the record shows that "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). Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Therefore, we first determine whether the moving party has demonstrated that there are no genuine disputes as to any material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

III.

Measured against this standard of review, after carefully considering the record, briefs and argument of counsel, we are satisfied that none of these arguments have merit and we affirm substantially for the reasons set forth in Judge Jamie Perri's comprehensive and well-reasoned opinion.

Even when viewed in a light most favorable to plaintiff, the evidence is plainly insufficient to create a genuine issue of fact that Stake Your Claim had actual or constructive notice of Kelly Mote N's dangerous propensities.

An owner of a domestic animal, such as a horse, that is "not necessarily inclined to commit mischief . . . is not liable for an injury committed by [the animal], unless he had notice of a mischievous propensity in the animal, or the injury arose from some neglect on his part." Angus v. Radin, 5 N.J.L. 957, 958-59 (Sup. Ct. 1820). If, however, the owner had "knowledge of its mischievous or vicious propensities," he is strictly liable for any injuries caused by the animal, regardless of the precautions he took. Rodriguez v. Cordasco, 279 N.J. Super. 396, 401 (App. Div.) (citing Jannuzzelli v. Wilkens, 158 N.J. Super. 36, 41 (App. Div. 1978)), certif. denied, 142 N.J. 451 (1995). Reasonable care in this context is irrelevant because "the gravamen of the injury [is] the wrong of keeping the animal with the knowledge of its viciousness." Emmons v. Stevane, 77 N.J.L. 570, 572 (E. & A. 1909).

On the other hand, if either the animal "is not vicious or the owner does not know of its vicious propensities, then negligence, not absolute liability, applies." DeRobertis v. Randazzo, 94 N.J. 144, 156 (1983). "The duty owed is 'commensurate with the danger to others which will follow' if the [animal] escaped from the owner's control." Ibid. (quoting DeGray v. Murray, 69 N.J.L. 458, 461 (Sup. Ct. 1903)).

The sole evidence of defendant's purported actual or constructive notice of the horse's dangerous propensities is based upon the "bad actor" notation on the equipment card, a notation made by Kopacz, who testified that this was a notation placed solely for his benefit. The motion judge found there was no evidence that the horse "exhibited dangerous or violent propensities between the time of purchase by Stake Your Claim and the date of the incident." Additionally, as the motion judge observed, despite the "bad actor" notation, plaintiff failed to produce any evidence that a reasonable horse purchaser would inspect the equipment card "for any purpose, much less to determine whether a notation such as 'bad actor' has been placed on it." The record also established, without dispute, that plaintiff, while filling in for Corley, never encountered any behavioral problems with the horse. Therefore, Judge Perri properly granted summary judgment.

IV.

We reject plaintiff's remaining claim that the court erred when it required her to produce expert testimony to address the "bad actor" notation on the equipment card. The court observed that plaintiff presented "[n]o evidence or expert opinion . . . which would indicate that this was anything other than an idiosyncratic notation that Kopacz would make for his own use or that it was a standard practice in the horse racing industry." This statement by the court is not an expression that plaintiff was required to produce expert testimony but an observation that plaintiff presented nothing to refute Kopacz's own testimony that the "bad actor" notation was an entry on the card for his personal benefit only and not in accordance with any industry standard.

1 Although summary judgment was granted in favor of Gaitway by order dated June 5, 2009, plaintiff settled with Gaitway on January 6, 2010 during an appeals settlement conference. The claims against Gaitway were "the subject of a separate declaratory coverage action[,] the outcome of which would net plaintiff "no more tha[n] $35,000[] and no less than $3,500[]."

2

Plaintiff does not contest the dismissal of Ferrara, Jack and Trostem as individual owners of the horse.

3

Plaintiff settled with Ross Croghan on "the eve of trial[.]" The record before us does not reflect a final disposition for Equine Racing Enterprises, a corporate entity owned by Croghan. Vallee and Marciano were voluntarily dismissed, as they were misidentified as owners of Kelly Mote N, the subject racehorse.

4 Also spelled Kelly Moto N. and Kelly Mota N. in the appellate record.