On appeal from the Superior Court, Law Division, Mercer County.
Michels, Pressler and Bilder. Bilder, J.s.c. (temporarily assigned).
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.
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 ...