BRIAN S. SPELLS v. CHRISTOPHER SERATA, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1373-06T11373-06T1

BRIAN S. SPELLS, A MINOR

BY HIS PARENT AND GUARDIAN

AD LITEM, AUDREY A. SPELLS

AND AUDREY A. SPELLS,

INDIVIDUALLY,

Plaintiffs-Appellants,

v.

DAVID G. UHLAND, JR.,

Defendant,

and

CHRISTOPHER SERATA and

LINDA SERATA,

Defendants-Respondents.

______________________________________

 

Argued October 23, 2007 - Decided November 5, 2007

Before Judges Skillman and Winkelstein.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0000175-05.

Gerald J. Batt argued the cause for appellants (Lipman, Antonelli, Batt, Dunlap, Wodlinger & Gilson, attorneys; Mr. Batt, on the brief).

Steven Antinoff argued the cause for respondents (Parker, Young & Antinoff, attorneys; Mr. Antinoff, of counsel; Stacy L. Moore, Jr., on the brief).

PER CURIAM

Defendants Christopher and Linda Serata owned a four-unit apartment house in Bridgeton. Defendant David Uhland was one of their tenants. Uhland owned a Staffordshire Terrier dog, commonly known as Pit Bull, that he frequently would keep in the apartment backyard on a fifteen to twenty foot long chain that was wrapped around a tree on one end and attached to the dog's collar by a three-inch brass hook on the other end.

On February 26, 2002, the dog got loose from the chain and ran onto the sidewalk in front of the next door neighbor's house where plaintiff Brian Spells, who was then eight years old, was running to the family vehicle parked on the street. The dog bit Spells' arm and dragged him around for approximately ten minutes until a passerby kicked the dog off of him.

Spells and his mother, Audrey Spells, brought this personal injury action against not only Uhland but also the Seratas. A default was entered against Uhland. After he failed to answer the complaint, Uhland filed for bankruptcy, and plaintiffs filed a proof of claim with the bankruptcy court.

After the completion of discovery, the Seratas moved for summary judgment on the grounds that there was no evidence that they knew of any vicious propensities of the dog and that landlords are not liable for the acts of a tenant's dog that occur off the premises. The trial court granted the motion on the ground that a landlord cannot be held liable for a dog bite by a tenant's dog that occurs beyond the common areas of the apartment house over which the landlord maintains control.

On appeal, plaintiffs argue that a landlord's liability for the maintenance of a dangerous condition on its property -- in this case, an alleged vicious dog -- should extend to an injury that occurs on a neighboring property. We have no need to decide this issue because the evidence relied upon by plaintiffs would not support a finding that the Seratas knew or should have known that Uhland's dog was vicious and posed a danger to persons living in the neighborhood.

Uhland testified at his deposition that he had owned the dog for about three years before it bit Spells and that the dog had never attacked or bitten anyone before. He also testified that the dog had never previously gotten loose.

Similarly, Christopher Serata testified that he had no knowledge of the dog ever biting or attacking anyone before it bit Spells. He also testified that he had never heard of the dog getting loose before it bit Spells.

Plaintiffs did not present any evidence to dispute this deposition testimony. Brian Spells acknowledged that he had never heard of anyone having problems with the dog prior to its attack on him. Audrey Spells also acknowledged that she had no knowledge of the dog biting anyone before it bit her son. Betty Roberts, who owned and lived in an apartment in the house occupied by the Spells, testified the dog was always jumping and barking while on the chain in the backyard of the Seratas' apartment house. However, she acknowledged that she had never heard of the dog attacking or threatening anyone prior to biting Brian Spells. Roberts also testified that she never heard the dog growl or saw it bare its teeth.

Based on this testimony, there was no factual foundation for a trier of fact to find that the Seratas knew or should have known that Uhland's dog was vicious or that it was likely to get loose from the chain by which it was secured in the backyard of their apartment building. Therefore, even if the Seratas owed a duty of care to persons on adjoining properties, there would be no basis for finding that they were negligent with respect to the dog biting Spells. See Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 71 (App. Div. 1999). For this reason, the trial court correctly granted the Seratas' motion for summary judgment.

Affirmed.

(continued)

(continued)

5

A-1373-06T1

November 5, 2007