VIVIAN AHRENS v. AGNES ROGOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3023-13T3

VIVIAN AHRENS and SIDNEY AHRENS,

Plaintiffs-Appellants,

v.

AGNES ROGOWSKI and ABDELALI ROUCHDI,

Defendants-Respondents.

________________________________________________________________

Argued telephonically on January 29, 2015 Decided February 20, 2015

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-176-12.

Carmine D. Campanile argued the cause for appellants.

John J. Kapp argued the cause for respondents (Gregory P. Helfrich & Associates, attorneys; Mr. Kapp, on the brief).

PER CURIAM

Plaintiffs Vivian and Sidney Ahrens1 appeal from a January 31, 2014 order granting summary judgment to defendant.2 Plaintiff was bitten by defendant's dog while plaintiff was on defendant's property. After a de novo review of the evidence, we affirm Presiding Judge Thomas C. Miller's decision because, as Judge Miller determined, plaintiff presented insufficient evidence that defendant breached the extremely limited duty owed to a trespasser.

Plaintiff related the following facts in her deposition. At approximately 11:00 a.m. on June 4, 2011, plaintiff brought chairs to be welded to a welding company in Hackettstown. The proprietor had left a note on the door stating that he would be returning shortly. Plaintiff tried to call her husband to say that she was delayed, but her cell phone was not working. She decided to ask the people who lived across the street if she could use their phone. Four or five adults were outside on the side deck of the home.

Plaintiff began walking up the walkway that led to the front door of the house. She did not observe a dog, a "beware of dog" sign, or anything else indicating that a dog was on the property. She called out "excuse me" a few times, but was unsuccessful in trying to get the attention of the people on the deck. She then left the walkway and walked a few feet across the lawn in the direction of the side porch. Defendant's dog ran at plaintiff, biting and clawing her left thigh. Plaintiff fell as she was trying to escape.

The people on the property began to yell, telling plaintiff to get off the property and yelling at her for not seeing the "beware of dog" sign. Plaintiff was able to leave the property and go to an auto parts store adjacent to the welding establishment. Plaintiff recalled somebody in the store stating that the dog was vicious.3

Plaintiff admitted that she did not have permission to enter defendant's property, and, though she testified that she tried to draw the attention of the people on the property, she admitted that they did not appear to hear her. She further admitted that she did not enter the property because she was in any danger. While she testified that she did not see a "beware of dog" sign, she also admitted that a picture taken by her son on the same day of the incident shows the sign, and she had no reason to believe it was not there when she entered the property.

Plaintiff spoke to the police at the hospital where she was taken. The police report indicates that, upon arriving at the scene, the officer saw plaintiff bleeding from her left leg. Plaintiff recounted to the officer that she had been attacked by a dog when she approached defendant's house. The report also notes that the officer spoke with defendant, who stated that she saw plaintiff approaching the side yard and told her not to come farther because of the dog. She stated that plaintiff disregarded her warning. Defendant explained that the dog was on a leash attached to a running line that gave the dog access to the side yard, but not the walkway going to the front door.

I

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). The facts must be viewed in a light most favorable to the non-moving party. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)). A court may grant summary judgment as to an issue only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show 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). We also review legal issues de novo. D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (citation omitted). A trial court's interpretation of a statute is owed no special deference. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009) (citations omitted); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

II

Plaintiff asserts a claim under both a negligence theory and the Dog Bite Statute, N.J.S.A. 4:19-16, which reads

The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

For the purpose of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof.

To recover pursuant to this statute, the plaintiff must prove that: (1) the defendant is the owner of the dog; (2) the dog bit the plaintiff; and (3) the bite occurred while the plaintiff was either in a public place or lawfully in a private place, "including the property of the owner of the dog." DeRobertis v. Randazzo, 94 N.J. 144, 151 (1983). Our Supreme Court stated that "those lawfully on the property include both invitees and licensees (including social guests), but not trespassers." Id. at 152.

On appeal, plaintiff argues that Judge Miller erred in holding that she was a trespasser, which she asserts is a factual determination for a jury. In support of this argument, plaintiff cites DeRobertis, which held that in the circumstances there, a factual question existed as to whether the infant plaintiff was lawfully in the vicinity of the dog. Id. at 158. In DeRobertis, the child often accompanied his father to his place of work at the defendant's auto body shop. Id. at 147. The father, who was contracted by the shop's owner to do towing work, would often leave his son at the shop, and the child would roam the shop. Ibid. On the day of the incident, the child went out back to watch another employee paint a car. Ibid. The shop owner's dog was tied up to a doghouse adjacent to the back of the shop, and the dog bit the boy when the child went over to the dog. Ibid.

Our Supreme Court held that it was error not to charge the jury that in order to find the defendant shop owner liable, the scope of the invitation to the infant plaintiff had to be found to extend to the place where the dog was chained. Id. at 153. The Court found that "the infant's status was an issue from the outset" of the case, and that there was a fact question as to "whether the infant was lawfully in the area where the dog was chained." Id. at 158-59.

In another case, which discusses the status of the plaintiff in the context of an emergent situation, Trisuzzi v. Tabatchnik, 285 N.J. Super. 15, 23 (App. Div. 1995), we determined that the facts "presented a jury question as to whether [the plaintiff] initially or eventually stepped onto the defendants' property in an effort to protect himself and his family from his perceived threat from the dog." The plaintiff alleged that he had been walking in a public street with his family when the defendants' dog came out and attacked them, and he defended his family from the dog. Id. at 19-20. We held that the jury should have been instructed that the plaintiff was lawfully on the defendants' property if it was necessary to be there to protect himself or others from harm, under the doctrine of private necessity. Id. at 23-24.

Unlike the situation in Trisuzzi, here plaintiff admits that no emergency required her to go on defendant's property. Thus, no question was raised as to whether she was on the property lawfully pursuant to the doctrine of private necessity. Unlike DeRobertis, no facts indicate that plaintiff had an express or implied invitation to be on defendant's property. Plaintiff admits that she did not have permission to be on the property. She also admits that she was on defendant's side lawn, and not the walkway to the front door, when she was attacked by the dog. Her presence on the side lawn was clearly without permission. For the purposes of the Dog Bite Statute, plaintiff was a trespasser, and therefore unable to recover under N.J.S.A. 4:19-16. See DeRobertis, supra, 94 N.J. at 152.

III

Judge Miller also analyzed the facts under the traditional common law negligence approach. The traditional approach to determining the duty of a landowner in a negligence case is dependent on whether the plaintiff is an invitee, licensee, or trespasser. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993) (citation omitted). In Hopkins, our Supreme Court stated that the analysis of premises liability should no longer depend exclusively on those categorizations, but focus also on "whether in light of the actual relationship between the parties under all of the surrounding circumstances the . . . duty to exercise reasonable care . . . is fair and just." Id. at 438. The inquiry should be a fact-sensitive one that considers "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Id. at 439 (citation omitted).

While Hopkins may have seemed to reject the traditional common law analysis of whether the plaintiff is an invitee, licensee, or trespasser, the Court has clarified that these categories continue to inform the duty analysis and "are a shorthand, in well-established classes of cases, for the duty analysis[.]" Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 45 (2012). These shorthand categories and their attendant standards of care represent the application of the same four factors considered in Hopkins, but allow the court to curtail the "full duty analysis" in cases where the injured party "falls squarely" into one of the categories. Id. at 44-45. Only in the cases where a plaintiff does not fit into the common law categories must a court perform the full duty analysis described in Hopkins. Desir, Estate of ex rel. Estiverne v. Vertus, 214 N.J. 303, 317 (2013) (citation omitted).

Here plaintiff is easily categorized as a trespasser and thus application of the traditional common law categories is appropriate. Trespassers are those who are "neither invited nor suffered." Desir, supra, 214 N.J. at 316 (citation and internal quotation marks omitted). Regardless of her innocuous purpose for entering defendant's property, plaintiff concedes that she was on the property without permission and without an emergent safety need to be there. Her presence was not tolerated by defendant, as plaintiff admits no one heard her calling for permission to enter the property. Plaintiff does not dispute that defendant told plaintiff not to come to the side yard, where the dog was able to attack her.

The duty that a landowner owes to a trespasser is slight. Hopkins, supra, 132 N.J. at 434. A landowner owes a duty to trespassers to refrain from willfully and wantonly causing them injury. Vega by Muniz v. Piedilato, 154 N.J. 496, 501 (1998) (citation omitted). The landowner "has a duty to warn trespassers only of artificial conditions on the property that pose a risk of death or serious bodily harm to the trespasser." Hopkins, supra, 132 N.J. at 434 (citations omitted).

After considering the acknowledgement in DeRobertis that an abnormally dangerous dog could be considered such an artificial condition, Judge Miller found that no competent evidence that the dog was known to be dangerous had been presented. Nor was any evidence presented that defendant had notice of the dog being dangerous.4 Further, the judge found that absent evidence of the dog's vicious propensity, no reasonable juror could conclude that keeping the dog on a line where he was not in range of the front walkway, while also displaying a "beware of dog" sign was a deviation from the appropriate standard of care.

We concur with Judge Miller's legal analysis of the facts. Plaintiff presented insufficient evidence to survive summary judgment that defendant breached defendant's limited duty to a trespasser, or that plaintiff was covered by the strict liability Dog Bite Statute.

1 Sidney's per quod claim stems from his wife Vivian's dog bite. We use "plaintiff" to mean Vivian alone.

2 Plaintiffs voluntarily dismissed Abdelali Rouchdi from the case.

3 No competent evidence was presented by plaintiff to substantiate this comment.

4 We agree with Judge Miller that the "beware of dog" sign in itself does not evidence that defendant was aware that her dog was dangerous.