WENDY L. FAIRCLOTH v. JEREMY BEVILLE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-0447-16T1

WENDY L. FAIRCLOTH,

        Plaintiff-Appellant,

v.

JEREMY BEVILLE and PAM BEVILLE,

        Defendants,

and

NEAL OWENS,

     Defendant-Respondent.
____________________________________

              Submitted October 4, 2017 – Decided February 13, 2018

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Docket No.
              L-0009-15.

              Jacob   &     Chiarello, LLC, attorneys              for
              appellant     (Joseph M. Chiarello, on               the
              briefs).

              Gruccio, Pepper, DeSanto & Ruth, PA, attorneys
              for respondent (Joseph E. Ruth, on the brief).

PER CURIAM
     Plaintiff Wendy Faircloth appeals from an August 2016 order

granting summary judgment to defendant Neal Owens (defendant) that

dismissed with prejudice her claim for personal injuries from a

dog bite.     We affirm.   We rely on the facts from the summary

judgment record, viewing them in a light most favorable to the

plaintiff.    Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520,

540 (1995).    The facts are not in dispute.

     On January 21, 2013, plaintiff was visiting her friends,

defendants Jeremy and Pam Beville, at their residence when she was

bitten in the face by the Bevilles' dog, Pepper.       Pepper was a

Dutch Sheppard that had been given to the Bevilles in 2009 when

the dog was two or three years old.    Pepper had not bitten anyone

previously.

     The Bevilles leased their residence from defendant with an

option to purchase it.     The parties agree that the lease did not

prohibit pets.

     Defendant did not know about Pepper or anything about its

behavior.    On one occasion in 2003, he did see Pam Beville holding

a small white dog when he was at the property, but that dog was

not Pepper. Defendant rarely was at the property when the Bevilles

resided there.




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     Plaintiff      sued   defendant   and    the   Bevilles   for   personal

injuries arising from the dog's bite.               The Bevilles declared

bankruptcy, and plaintiff's claim against them was discharged.

      In August 2016, defendant's motion for summary judgment was

granted, which dismissed plaintiff's complaint with prejudice.

The trial court held that defendant was not liable because he did

not have notice that the dog was "problematic or likely to injure

a party."     The court rejected           plaintiff's request to expand

liability because that would be imposing "strict liability on the

owner of the property, if there's no other indications that this

particular dog is problematic."

     On   appeal,    plaintiff   contends     the   trial   court    erred    in

granting summary judgment.       She argues, the current state of the

law regarding landlord liability for dog bites is not consistent

with premises liability law.

     Our review of the summary judgment order is de novo, meaning

that we apply the same standards used by the trial judge.               W.J.A.

v. D.A., 
210 N.J. 229, 237 (2012).           The question then is whether

the evidence, when viewed in a light most favorable to the non-

moving party, raises genuinely disputed issues of fact sufficient

to warrant resolution by the trier of fact or whether the evidence

"is so one-sided that one party must prevail as a matter of law."



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Brill, 
142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc.,


477 U.S. 242, 252 (1986)).

       "Under    the   common   law,   ordinarily        a    landlord     is   not

responsible for injuries caused by its tenant's dog."                  Hyun Na Seo

v. Yozgadlian, 
320 N.J. Super. 68, 71 (App. Div. 1999) (citing

Cogsville v. Trenton, 
159 N.J. Super. 71, 74 (App. Div. 1978)).

However, beginning with Linebaugh v. Hyndman, 
213 N.J. Super. 117,

120 (App. Div. 1986), we held there were circumstances where a

landlord could be liable for injuries caused by a tenant's dog.

The landlord in Linebaugh was aware that one of the tenants owned

a large German Shepherd that had previously bitten another person.

A child playing in the shared common area of the rented duplex was

seriously injured when she was bitten by the dog.                     We held that

"[a]n abnormally [vicious] domestic animal is like an artificial

[dangerous] condition on the property."                  Id. at 121 (quoting

DeRobertis v. Randazzo, 
94 N.J. 144, 157 (1983)).                      We stressed

that   the   landlord's    liability       was   "well       within    traditional

principles of negligence law."         Id. at 122.           A landlord could be

held liable where he permitted a tenant to harbor a vicious animal

and failed to take curative measures.

       In Hyun, we declined to impose liability on a landlord.

There, a tenant was bitten by another tenant's dog and sued the

landlord.       
320 N.J. Super. at 71.       We again determined that the

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landlord's     liability   was   based   on   "ordinary    principles      of

negligence," holding that "in the absence of proof that the

landlord was aware of the dog's vicious propensities, or perhaps

that the dog was inherently vicious, liability should not be

imposed upon the landlord."      Id. at 72.

     Here, defendant was not aware that the Bevilles owned Pepper

and did not know whether the dog had bitten anyone else or had

violent propensities.      Under the existing case law, the landlord

had no liability for injuries caused by the Bevilles' dog. Summary

judgment was correctly entered.

     Plaintiff    contends   that   we   should   expand   the   landlord's

liability to impose liability consistent with "premises liability

law," citing Hopkins v. Fox & Lazo Realtors, 
132 N.J. 426 (1993)

and Monaco v. Hartz Mt. Corp. 
178 N.J. 410 (2004) to support her

proposition.     In Monaco, the Court held that a landlord of a

commercial premises had a duty to make reasonable inspections of

its property and to warn invitees of hazardous conditions.               
178 N.J. at 418.     In Hopkins, the Court determined that real estate

brokers had a duty to inspect and warn of dangerous conditions of

the property for visitors at an open house.         
132 N.J. at 444-45.

     Plaintiff contends that "animals can be considered hazards

and hazards should be discovered by landlords."        She suggests that

the landlord's duty to guests of a tenant should be expanded to

                                    5                               A-0447-16T1
protect and insure against this harm.     We decline to extend a

landlord's liability as suggested by plaintiff.   The effect would

be to make landlords strictly liable for their tenants' pets

whether or not they were aware of any known violent propensities.

The legislature did not impose that obligation on landlords.     See


N.J.S.A. 4:19-16 (addressing the strict liability for dog owners).

Further, the imposition of strict liability upon landlords under

this scenario is without precedent as our courts have consistently

evaluated the liability of a landlord under general negligence

principles.

     In sum, plaintiff provides no evidence or analysis that would

cause us to revisit Hyun to include, as she suggests, an obligation

to inquire about the danger of every dog kept by every tenant and

then to insure the guests of tenants against injuries, even where

the dog is not known to have violent propensities.

     Affirmed.




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