Decided: April 25, 1978.
RACHAEL COGSVILLE, BY HER GUARDIAN AD LITEM, CAROL COGSVILLE AND CAROL COGSVILLE, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
CITY OF TRENTON, DEFENDANT-RESPONDENT
On appeal from the Superior Court, Law Division, Mercer County.
Michels, Pressler and Bilder. Bilder, J.s.c. (temporarily assigned).
[159 NJSuper Page 72]
This is an appeal by a plaintiff from the grant of a summary judgment dismissing the claim.
The infant plaintiff was injured when she was bitten by a dog owned by a month-to-month tenant occupying a single-family dwelling owned by defendant City of Trenton. Plaintiffs allege the dangerous propensities of the dog had been known to the Trenton police and public health departments for at least six months as a result of prior incidents.
[159 NJSuper Page 73]
The trial judge dismissed on the ground that plaintiffs failed to state a cause of action against defendant.
Plaintiffs seek to establish liability on two alternative theories: first, that the city, as landlord, is liable for injury caused by its tenant's dog; and second, that the city is liable for its failure to have the dog removed from the public streets and city-owned property -- given its known violent nature.
The trial judge rejected both theories:
[Plaintiff is] attempting to hold the city liable for an act which under the Tort Claims Act they would have immunity for, and I haven't been shown anything in the Tort Claims Act which prevents the city from invoking that immunity in the first place. In the second place, I disagree with [plaintiff's] theory that in this factual situation that a landlord would be responsible for a nuisance created by a dog owned by its tenant.
By legislative fiat, the owner of a dog is held strictly liable for damages caused when that dog bites someone. N.J.S.A. 4:19-16. We have found no case nor has any such rule been called to our attention attaching liability to a dog-owner's landlord.
In Wasilewski v. McGuire Art Shop , 117 N.J.L. 264 (Sup. Ct. 1936), the court set out the general rule concerning a landlord's liability with respect to a nuisance:
Nor can plaintiffs obtain solace from the New Jersey Tort Claims Act. Plaintiffs would predicate liability on N.J.S.A. 59:4-2, a provision making a public entity liable for dangerous conditions of its property created by or known to the entity. The term "dangerous condition" as used in that provision is restricted to physical conditions. See Setrin v. Glassboro State College , 136 N.J. Super. 329 (App. Div. 1975).
A similar bar confronts plaintiffs with respect to their contention that the city should be liable for its failure to cause this allegedly known vicious dog to be removed from the streets. Whether the claim is predicated on a failure to adopt or enforce a law, or on administrative action or inaction, it is clearly barred by the act. As to the former by N.J.S.A. 59:2-4, and as to the latter by N.J.S.A. 59:2-3(b). Nor does this fall into the category of a special circumstance with respect to an emergent condition holding a high degree of risk to the public, recognized in Wuethrich v. Delia , 134 N.J. Super. 400 (Law Div. 1975).*fn1
[159 NJSuper Page 75]
See discussion in National Spring Co. v. Pierpont Associates, Inc. , 146 N.J. Super. 63, 66-68 (Law Div. 1976).