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Rodriguez v. Cordasco

Decided: February 6, 1995.

ANDRE RODRIGUEZ, PLAINTIFF-APPELLANT,
v.
ROSE CORDASCO, DEFENDANT-RESPONDENT.



On appeal from Superior Court, Law Division, Essex County.

Before Judges Petrella, Havey and Cuff.

Petrella

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

The issue in this appeal is whether a person who feeds stray dogs on her property owes a duty to the public to protect against the danger those animals may present to passersby on an abutting sidewalk. The Law Division held there was no such duty in the case presented and granted summary judgment in favor of defendant Rose Cordasco. We agree and affirm.

On appeal, plaintiff Andre Rodriguez argues that the motion Judge erred in granting summary judgment*fn1 because there were material issues of fact in dispute. In addition, he argues that the Judge erred in concluding that as a matter of law a defendant-homeowner who makes a practice of attracting stray dogs by repeatedly feeding them and allowing them access to her property, is not liable to passersby who are injured by the action of the animals. Finally, Rodriguez argues that Cordasco, as the owner and occupier of property abutting a negligently maintained sidewalk, is liable to him for injuries sustained as a result of a fall on that sidewalk while attempting to run from the dogs.

The underlying facts may be briefly stated. At about 4:00 p.m. on March 1, 1993, Rodriguez was walking on the sidewalk in front of Cordasco's one-family, two-story residence on Seventh Avenue in Newark. He was on his way to a bus stop and claims that as he passed Cordasco's residence two or three dogs came from Cordasco's unfenced yard and began to chase him. Rodriguez quickened his pace to avoid the dogs, but tripped and fell on a raised portion of the sidewalk abutting Cordasco's residence, injuring his right knee.

Rodriguez does not dispute that Cordasco did not own the dogs, but asserts that she was a "keeper" of the dogs and should bear responsibility for injuries he sustained when he fell.*fn2

In his deposition Rodriguez testified that he had been walking past the Cordasco house daily for about eight months and that the stray dogs which chased him "always" eat in the back of Cordasco's house. However, he did not know what they were eating nor did he know if it was Cordasco who was feeding them. After the motion Judge granted summary judgment in favor of Cordasco, Rodriguez made a motion for reconsideration and indicated that he could obtain a statement from a witness who would corroborate his assertion that Cordasco left food out for stray dogs on several occasions. The Judge, in denying the motion for reconsideration, held that even if Cordasco fed the stray dogs, she did not owe a duty of care to the public to protect against the actions of those dogs.

Cordasco acknowledged in her deposition that stray dogs occasionally came onto her property and would often approach her as she tried to enter her car. She indicated that she would sometimes throw them biscuits to "bribe" them away from the car, but she asserted that she never left food out for them. She also stated that she called a Newark agency on several occasions trying to rid the neighborhood of the stray dogs.

In granting summary judgment in favor of Cordasco the motion Judge appropriately gave Rodriguez the benefit of all of the reasonable inferences. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954); R. 4:46-2. For the purpose of this appeal we also resolve all factual disputes in his favor. Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402, 551 A.2d 1006 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

New Jersey's "dog bite" statute (N.J.S.A. 4:19-16) imposes liability on dog owners in certain instances. That statute is inapplicable here and affords no basis for Rodriguez's claim. There was no "bite" inflicted on Rodriguez and the dogs apparently did not make contact with or physically touch him in any fashion. Hayes v. Mongiovi, 121 N.J. Super. 272, 275, 296 A.2d 567 (Cty. Ct. 1972), aff'd o.b., 125 N.J. Super. 413 (App. Div. 1973).

A common law cause of action in strict liability against Cordasco is likewise unavailable here. To establish such liability Rodriguez would have to show that Cordasco owned the dog (or perhaps was its "keeper") and had knowledge of its mischievous or vicious propensities. Jannuzzelli v. Wilkens, 158 N.J. Super. 36, 41, 385 A.2d 322 (App. Div. 1978); Prosser and Keeton, The Law of Torts, ยง 76, at 542 (5th ed. 1984). The record does not indicate ...


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