ANN MONCUR, et al. v. MICHELLE ELLISON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2709-04T12709-04T1

A-0048-05T1

ANN MONCUR, ROBERT MONCUR, and

MICHELLE ST. LAURENT,

Plaintiffs-Appellants,

v.

MICHELLE ELLISON,

Defendant,

and

MAUREEN ERICKSON and ALAN ERICKSON,

Defendants-Respondents.

______________________________________

JAMES GREGORY PETOSKY and

CAROLYN PETOSKY, his wife,

Plaintiffs-Appellants,

v.

MICHELLE ELLISON,

Defendant,

and

MAUREEN ERICKSON and ALAN ERICKSON,

Defendants-Respondents.

______________________________________

 

Argued January 31, 2007 - Decided

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-2508-03 (A-2709-04T1) and L-1813-04

(A-0048-05T1).

Richard J. Simon argued the cause for appellants in A-2709-04T1 (Richard J. Simon, attorneys; Mr. Simon, of counsel; Jeffrey Zajack, on the brief).

Donald T. Joworisak argued the cause for appellants in A-0048-05T1 (Karim Arzadi, attorney; Mr. Joworisak, on the brief).

John J. Kapp argued the cause for respondents in A-2709-04T1 and A-0048-05T1 (David E. Rehe & Associates, attorneys; Mr. Kapp, on the brief).

PER CURIAM

These matters involve the asserted liability of a landlord for injuries sustained by plaintiffs Ann Moncur and James Petosky, who were attacked by pit bulls owned by Michelle Ellison, a tenant of defendants Maureen and Alan Erickson (landlords). In addition, plaintiff Michelle St. Laurent asserts claims against Ellison and the Ericksons for injuries to her dog arising out of the same incident. In each matter, the Law Division judges, for different reasons, granted summary judgment and dismissed the complaints against the Ericksons. We now affirm. As these back-to-back appeals have a common factual genesis, we consolidate them for purposes of this opinion and disposition.

In reviewing a grant of summary judgment, we apply the same standard as the motion judge to resolve the dispute. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That is, without according any special deference to the motion judges' interpretation of the law, Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 369 (1999), we review the record in the light most favorable to the non-moving party and determine if the record, thus viewed, requires the entry of judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The evidence evaluated under that standard discloses that on September 12, 2002, Moncur and the dog she was walking were attacked by two pit bulls that ran out of 17 March Place, a single-family residence owned by the Ericksons, just as Moncur was either near or on the property. The dogs apparently escaped as Ellison's eight and nine-year-old girls entered their front door. Petosky, a volunteer fireman who resided nearby at 33 March Place, witnessed the attack and ran over to assist. He attempted to pull one of the dogs away from Moncur. The dog released its grip on Moncur and attacked Petosky.

Plaintiffs filed complaints in the Law Division against Ellison and the Ericksons. Plaintiffs alleged defendants were strictly liable for their injuries under the dog bite statute, N.J.S.A. 4:19-16, and that defendants negligently maintained, supervised and controlled the dogs. Default judgments were obtained against Ellison.

The Ericksons moved for partial summary judgment dismissing both complaints against them. They argued that under Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68 (App. Div. 1999), there was no evidence that they had actual notice of Ellison's dog's vicious propensities. In granting summary judgment dismissing the Moncur/St. Laurent complaint, the motion judge concluded there was no evidence that the Ericksons were aware that the dogs were vicious, nor was there expert testimony that a pit bull, as a breed, "in and of itself is a vicious dog." A second judge granted summary judgment dismissing the Petosky complaint against them. He found, "[g]iven the specific facts of this case, i.e., a single[-]family dwelling and an incident that took place off the rental property, I do not believe that there is a basis for liability on the part of the Ericksons, as landlords."

On appeal, the Moncurs raise the following points:

POINT I

THE FACTUAL FINDINGS AND LEGAL CONCLUSIONS OF THE TRIAL JUDGE REQUIRE REVERSAL WHEN THEY ARE UNSUPPORTED BY OR INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE AS TO OFFEND THE INTERESTS OF JUSTICE.

POINT II

BY RELYING EXCLUSIVELY UPON THE ISSUE OF ACTUAL NOTICE OF VICIOUS PROPENSITIES OF THE TWO PIT BULLS IN QUESTION, THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

POINT III

THE TRIAL COURT ERRED IN NOT HOLDING THE DEFENDANTS LIABLE UNDER COMMON LAW NEGLIGENCE PRINCIPLES, SINCE THE PIT BULL ATTACK OCCURRED ON THE PREMISES LEASED BY THE DEFENDANTS.

The Petoskys raise the following points on appeal:

POINT I

THE TRIAL JUDGE ERRED IN FINDING AS A MATTER OF LAW THAT THE DEFENDANT-LANDLORDS WERE NOT LIABLE WHEN THE PROOFS SHOWED THAT THEY WERE AWARE OF THE PRESENCE OF PIT BULLS IN THEIR RENTED PREMISES WHICH THEY ACKNOWLEDGE TO BE VICIOUS BY NATURE AND NOTHING WAS DONE TO RESTRICT OR ELIMINATE THE DOGS IN ANY WAY.

POINT II

THE DEFENDANT-LANDLORDS ARE SEPARATELY LIABLE ON GENERAL NEGLIGENCE THEORY SINCE THEY KNOWINGLY ALLOWED THE PIT BULLS TO REMAIN IN THE RENTED PREMISES WHEN THEY KNEW TWO YOUNG GIRLS WOULD BE ENTERING THE PREMISES AND BE HOME ALONE DURING WEEKDAY AFTERNOONS AND WERE TOO YOUNG TO BE ABLE TO CONTROL THE DOGS.

Statutory strict liability under N.J.S.A. 4:19-16, which imposes liability upon an owner whose dog bites another, irrespective of the owner's knowledge of the dog's vicious propensities, does not extend to non-owners. Thus, if liability for plaintiffs' injuries is to be imposed against the Ericksons, it must arise through application of ordinary principles of negligence.

It has long been the law in this state that a landlord is under a common-law duty to exercise reasonable care to guard against foreseeable dangers arising from the use of the landlord's premises. Ellis v. Caprice, 96 N.J. Super. 539, 547 (App. Div.), certif. denied, 50 N.J. 409 (1967). Where the landlord fails to do so and "such failure results in injury to the tenant or persons on the premises as members of his family or his invitees, expressed or implied, ordinarily the landlord is liable for the injury." Coleman v. Steinberg, 54 N.J. 58, 63 (1969).

On the other hand, it has also long been the law in this state that where a landlord demises the entire premises to a tenant and retains no control over any portion thereof, no liability may be imposed upon a landlord for injuries caused to those lawfully upon the property. Patton v. Texas Co., 13 N.J. Super. 42 (App. Div.), certif. denied, 7 N.J. 348 (1951); see also Szeles v. Vena, 321 N.J. Super. 601 (App. Div.), certif. denied, 162 N.J. 129 (1999). The exception to this general principle occurs where the landlord retains a level of control over the demised property. Scully v. Fitzgerald, 179 N.J. 114, 121-22 (2004).

Here, there is no dispute that the Ericksons demised the entire single-family dwelling to Ellison. There is no indication in the record that the Ericksons retained control over any portion of the premises. Under such circumstances, the Ericksons were under no duty, as plaintiffs argue, to undertake measures such as fencing in order to maintain the premises in a reasonably safe condition against potential dog attacks to third persons by the Ellison dogs.

Plaintiffs' reliance upon Linebaugh v. Hyndman, 213 N.J. Super. 117 (App. Div. 1986), aff'd o.b., 106 N.J. 556 (1987), is misplaced. There, the plaintiff was bit by a dog while playing in a backyard area shared by the tenants in a multi-family dwelling. We concluded that consistent with a landlord's duty to maintain a reasonably safe premises for tenants and others lawfully on the premises, there was a duty to protect such persons from harm "which a vicious dog is capable of inflicting." Id. at 121. Linebaugh, however, turned on the multi-family status of the premises and the existence of common areas. In that regard, we stated, "[w]here a landlord, either by his affirmative consent or by his failure to take curative measures, permits another to harbor such an animal in those areas in which he retains control, he is liable to his tenants and others lawfully on the premises for the injuries that result." Ibid. (emphasis added). Given the undisputed fact that the Ericksons retained no control over the Ellison single-family dwelling, no liability may be imposed based upon general negligence principles.

In light of our decision, plaintiffs' remaining arguments related to whether the Ericksons had actual knowledge that the dogs were vicious or their claim that pit bulls are inherently dangerous, thereby negating the actual knowledge requirement under Seo, supra, require no discussion. Such a discussion is only warranted in cases where the landlord has retained some level of control over the demised premises, a condition not present here. See Seo, supra, 320 N.J. Super. at 71-72.

 
Affirmed.

Robert Moncur and Carolyn Petosky asserted per quod claims.

On September 28, 2005, we granted the Moncurs and St. Laurent leave to supplement the record with deposition testimony of Ann Moncur in which she testified that "she was on the property of the defendant landlords' premises when she was mauled by the two pit bulls housed by the defendant landlords' tenant." In light of our decision, whether Moncur was on or off the property at the time of the attack is irrelevant.

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A-2709-04T1

May 11, 2007