PATRICIAWARD v. BRIGIDA OCHOA, NOE GONZALEZ LAND SAFE APPRAISALS, INC. and BANK OF AMERICA and CENTURY 21 WORDEN & GREEN and KEN SONG -

NOT FOR PUBLICATION WITHOUT THE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-4287-16T4


PATRICIA WARD,

        Plaintiff-Appellant,

v.

BRIGIDA OCHOA, NOE GONZALEZ,
LAND SAFE APPRAISALS, INC. and
BANK OF AMERICA,

        Defendants,

and

CENTURY 21 WORDEN & GREEN
and KEN SONG,

     Defendants-Respondents.
____________________________________

              Argued May 21, 2018 – Decided June 28, 2018

              Before Judges Ostrer, Rose and Firko.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              10761-14.

              Justin Lee Klein argued the cause for
              appellant (Hobbie, Corrigan & Bertucio, PC,
              attorneys; Justin Lee Klein, of counsel and
              on the briefs).
           Deirdre M. Dennis argued the cause for
           respondents (Law Offices of Linda S. Baumann,
           attorney; Deirdre M. Dennis, on the brief).

PER CURIAM

     Plaintiff Patricia Ward ("Ward") appeals the Law Division

order granting summary judgment in favor of defendants Century 21

Worden & Green ("Century 21") and Ken Song ("Song") and dismissing

the complaint against them with prejudice.             We affirm.

     Ward's claim arises out of severe and permanent injuries she

sustained after being attacked by a pitbull while performing an

appraisal on October 3, 2014, at the home owned by defendants

Brigida Ochoa ("Ochoa") and Noe Gonzalez ("Gonzalez").              Ochoa and

Gonzalez previously settled their claim with Ward.

                                      I.

     We   discern   the   following    facts    from    the   motion   record,

considering them in the light most favorable to Ward. See Robinson

v. Vivirito, 
217 N.J. 199, 203 (2014) (citation omitted).              On June

5, 2014, Song entered into a listing agreement with the homeowners

with a view toward conducting a short sale of their foreclosed

residential property.     Song, a realtor employed by Century 21, was

the listing agent and the buyer's agent.         In order to close title,

the short sale had to be approved by the foreclosing mortgage

holder, Bank of America ("BOA").          During the period of the listing

agreement, Ward contends Song was obligated to ascertain the number

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and breed of dogs the homeowners owned.     Ward, a licensed real

estate appraiser since 1989, was assigned to inspect and appraise

the subject property through the auspices of BOA's appraisal

coordinator, Land Safe Appraisal Services, Inc. ("Land Safe").

     Ward was contacted directly by Land Safe to perform the

appraisal. In her career, she had performed 200 to 250 residential

appraisals annually.   Ward attempted to communicate with Ochoa to

set up the appointment because the homeowner was listed as the

contact person for the appraisal.      After Ward's efforts were

unsuccessful, she asked Land Safe for permission to contact Song

in order to facilitate making the appointment with Ochoa.       Ward

called Song to follow up.    At her deposition, she stated that no

inquiry was made as to whether the home was owner occupied or if

dogs were on the premises.

     Ultimately, Ward contacted Ochoa to set up the appointment.

At her deposition, Ward understood Ochoa was her client.   Ward did

not ask Ochoa if there was a lockbox on the house or if there were

dogs present.    Song was never contacted by Ward to ascertain

whether or not the home was owner occupied. However, he did inform

her that there was a dog at the premises prior to the date of the

appraisal.   The homeowners contended that their pitbulls did not

have any vicious propensities prior to this incident.



                                 3                          A-4287-16T4
     When Ward arrived at the home on October 3, 2014, Ochoa told

her that two dogs were crated in the kitchen.    Ward confirmed this

and felt that the crated dogs posed no danger to her.          After

stepping into the foyer, a bedroom was situated to the left.        An

older, lethargic, uncrated pitbull was in that bedroom described

by Ward as "very calm and docile."     Ward did not object to the

presence of any of the dogs or request their removal.    The crated

dogs were fifteen to sixteen feet away from the foyer.            The

interior inspection proceeded for about forty minutes without

incident.   She proceeded with the appraisal and did not reschedule

even though she had the ability to do so.   At her deposition, Ward

admitted that she had no reason to believe the pitbulls were

dangerous because two were in crates and not making noise, and the

other dog was sick.

     After Ward and Ochoa exited the home through the front door,

they walked along the perimeter of the house near the side door

and Ochoa went inside.     She noticed that the dogs were out of

their crates and on the deck and making noise.    Ward observed this

as well and nonetheless, proceeded to photograph the rear of the

house.   At this point, she testified that she still had no reason

to believe that any of the dogs would bite her.      As Ward walked

toward her car, one of the pitbulls charged her and she ran away

in fear. At the foot of the driveway, Ward was repeatedly attacked

                                 4                           A-4287-16T4
by   one   of    the   pitbulls,   which   resulted   in   her   sustaining   a

fractured radius and nerve damage, requiring surgery.             Admittedly,

Ward did nothing to ensure her own safety.             Song was not at the

premises when the incident occurred, and no one requested him to

be there.

      Century 21 crafted an internal "policy" to ensure that "pets"

were appropriately secured by homeowners when third parties were

to visit.       Song and Century 21 contend that they abided by their

internal policy, referred to as the "Open House Don't" list, as

evidenced by the fact that the dogs were restrained and crated at

the time Ward arrived.

      The "Open House Don't" list provided as follows:

            1.     USE OWNERS' PHONES TO MAKE ANY LONG
                   DISTANCE CALLS. IF YOU DO LEAVE $$.
            2.     LET OWNER BE THERE WHEN [YOU ARE]
                   HOME.
            3.     FORGET PAPERWORK TO WORK ON IF IT IS
                   SLOW.
            4.     ONLY PUT UP 
1 OR 2 SIGNS.
            5.     FORGET TO CLEAN UP DONUTS/COFFEE.
            6.     LEAVE HOUSE TO SHOW ANOTHER HOME IN
                   AREA.
            7.     BE LATE OR CLOSE EARLY.
            8.     LET CUSTOMER LEAVE WITHOUT
                   NAME/NUMBER/YOUR BUSINESS CARD
            9.     DO OPEN ON POORLY TRAVELED ROAD,
                   SECLUDED AREA.
            10.    HOLD OPEN ON POPULAR SPORTING
                   DATE/HOLIDAY WEEKENDS.
            11.    HOLD OPEN ON O.P.T.
            12.    ALLOW OWNER TO LEAVE PETS AROUND.
            13.    LET SMALL CHILDREN OF VISITORS GET OUT
                   OF CONTROL.

                                       5                              A-4287-16T4
            [(Emphasis added).]

     It is undisputed that Ward never had a written agreement with

Century 21 (or Song).   On the date in question, Ward was a partner

with P & R Appraisals, LLC ("P & R").      Her company did not have

any policies or protocols applicable to appraising a residence

when dogs were present.

     Century 21 and Song moved for summary judgment arguing that

their alleged acts or omissions were not a proximate cause of

damage to Ward, and that they did not owe any duty to her.

     In an oral opinion rendered on May 26, 2017, the judge

determined that Ward could not maintain a negligence claim because

no duty of care existed between these parties.     In doing so, the

judge found:

            [t]he most that could be said is to tell the
            parties to keep your dogs caged or take them
            out of the house. They have dog[s] in ca[g]es.
            The dog gets loose. It's not foreseeable in
            any way.      They complied with everything
            reasonable that the realtor could have told
            them. There's nothing in any way that would
            be foreseeable by [Century 21 and Song], which
            is an element of negligence on premises
            liability.

A memorializing order was entered on the same date, and this appeal

followed.

     Ward argues on appeal that the judge should have denied the

motion for summary judgment because she established that Century


                                  6                          A-4287-16T4
21 and Song owed her a duty to remove the pitbulls, breached that

duty, and caused her injuries.        In making this argument, Ward

essentially presents two theories of negligence. First, she argues

that movants' duty is derived from "multiple sources," including

common law, because being attacked by the pitbull was an apparent

and foreseeable risk.   Second, Ward contends Century 21 and Song

had an affirmative obligation to ensure the safety of the premises

by having the pitbulls removed when she was present because movants

had an internal "policy" to this effect which they failed to abide

with.   Additionally, she contends that the judge disregarded legal

authorities, evidence, and her expert report.     We disagree.

                                II.

     This court reviews a ruling on summary judgment de novo,

applying the same legal standard as the trial court.      Conley v.

Guerrero, 
228 N.J. 339, 346 (2017); and Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co., 
224 N.J. 189, 199 (2016).

Thus, this court considers, as the trial judge did, "whether the

evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail

as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso,

P.A., 
189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life

Ins. Co. of Am., 
142 N.J. 520, 536 (1995)).



                                 7                           A-4287-16T4
     Summary   judgment   must   be   granted   "if   the   pleadings,

depositions, answers to interrogatories and admissions on file,

together with the 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." Templo

Fuente, 
224 N.J. at 199 (quoting R. 4:46-2(c)).

     As our Supreme Court has instructed:

          a determination whether there exists a
          "genuine   issue"   of  material   fact   that
          precludes summary judgment requires the motion
          judge to consider whether the competent
          evidential materials presented, when viewed in
          the light most favorable to the non-moving
          party, are sufficient to permit a rational
          factfinder to resolve the alleged disputed
          issue in favor of the non-moving party.

          [Brill, 
142 N.J. at 540.]

"To defeat a motion for summary judgment, the opponent must 'come

forward with evidence that creates a genuine issue of material

fact.'" Cortez v. Gindhart, 
435 N.J. Super. 589, 605 (App. Div.

2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State,


425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory and self-

serving assertions by one of the parties are insufficient to

overcome the motion." Puder v. Buechel, 
183 N.J. 428, 440-41 (2005)

(citations omitted).

     If there is no genuine issue of material fact, this court

must then "'decide whether the trial court correctly interpreted

                                  8                            A-4287-16T4
the law.'" DepoLink Ct. Reporting & Litig. Support Servs. v.

Rochman, 
430 N.J. Super. 325, 333 (App. Div. 2013) (citations

omitted).   "When no issue of fact exists, and only a question of

law remains, this Court affords no special deference to the legal

determinations of the trial court." Templo Fuente, 
224 N.J. at 199

(citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 
140 N.J.
 366, 378 (1995)).   However, a "'trial court's interpretation of

the law and the legal consequences that flow from established

facts are not entitled to any special deference.'"    Ibid. (quoting

Manalapan Realty, 
140 N.J. at 378).

                               III.

     Ward's initial argument on appeal raises a purely legal issue

because "[t]he determination of the existence of a duty is a

question of law for the court."   Petrillo v. Bachenberg, 
139 N.J.
 472, 479 (1995) (citation omitted).      Our courts "have long held

that it is ordinarily a plaintiff's burden to prove negligence,

and that it is never presumed."       Khan v. Singh, 
200 N.J. 82, 91

(2009) (citation omitted).    "To sustain a cause of action for

negligence, a plaintiff must establish four elements: '(1) a duty

of care, (2) a breach of that duty, (3) proximate cause, and (4)

actual damages.'"   Townsend v. Pierre, 
221 N.J. 36, 51 (2015)

(quoting Polzo v. Cnty. of Essex, 
196 N.J. 569, 584 (2008)).



                                  9                          A-4287-16T4
     There is a presumption against negligence, and the burden of

establishing    such     negligence    is   on    plaintiff.     Buckelew    v.

Grossbard, 
87 N.J. 512, 525 (1981).              "A prerequisite to recovery

on a negligence theory is a duty owed by defendant to plaintiff."

Strachan v. John F. Kennedy Mem'l Hosp., 
109 N.J. 523, 529 (1988)

(citation omitted).        "The duty owed by a premises owner . . .

depends   in   general    upon   the    application     of   well-established

categories through which the status of the injured party is used

to define both duty and foreseeability."             Estate of Desir ex rel.

Estiverne v. Vertus, 
214 N.J. 303, 316 (2013).

     In Hopkins v. Fox & Lazo Realtors, 
132 N.J. 426 (1993),

plaintiff was injured after losing her footing on a step during

an open-house tour at the invitation of the broker.                The Court

held "the nature of the relationship between a [real estate] broker

and its customer in the conduct of an open-house inspection of

property is substantial." Id. at 441. "[W]e conclude that implicit

in the broker's invitation to customers is some commensurate degree

of responsibility for their safety while visiting the premises."

Ibid. "[T]he key to the broker-customer relationship, which gives

rise to a duty of care, is the services that are offered by the

broker and expected by the customer in the context of an open-

house inspection of property."          Id. at 444.     (Emphasis added).



                                       10                             A-4287-16T4
      We find that Hopkins is factually distinguishable.                    The

Court's holding in Hopkins is grounded in the recognition that it

is reasonable for a broker to inspect a home for purposes of

marketing it to potential buyers . . . and to give adequate

warnings with respect to hazards readily discoverable through such

an inspection . . . . "         Id. at 446.    We decline to extend the

holding in Hopkins to interpret that a dog constitutes a "hazardous

condition," as urged by Ward.          Century 21 and Song did not have

an   economic   interest   in   Ward     conducting   an   appraisal     here.

Governed by these principles, we find that Ward did not engage in

any activity akin to any sort of a relationship with Century 21

or Song, thus making Hopkins inapplicable here.

      Unlike the plaintiff in Hopkins who was injured after missing

a step, Ward was injured as a result of her employment with P &

R.   The record is devoid of any evidence to suggest that Ward was

a "customer" of Century 21 or Song.           Consequently, there was no

legal relationship between the parties, and no privity of contract.

      Whether analyzed under the traditional common law categories,

or under Hopkin's more general analysis, Ward failed to establish

a duty.    Thus, the judge properly granted summary judgment after

analyzing "the relationship of the parties, the nature of the

attendant risk, the opportunity and ability to exercise care

. . . ."   Id. at 449.

                                    11                                 A-4287-16T4
    Plaintiff's remaining evidentiary arguments lack sufficient

merit to warrant further discussion.   R. 2:11-3(e)(1)(E).

    Affirmed.




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