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Donaldson v. Lipinski

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 28, 2009

CALVIN D. DONALDSON, AN INFANT BY HIS GUARDIAN AD LITEM, MARY BRITTON, PLAINTIFF-APPELLANT,
v.
LINDA LIPINSKI, DEFENDANT, AND
FMS PROPERTIES, L.L.C., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1429-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 10, 2009

Before Judges Grall and Ashrafi.

Plaintiff Calvin D. Donaldson, by his mother and guardian ad litem Mary Britton, commenced this litigation to recover damages for injuries sustained when he was attacked by a dog on the grounds of an apartment complex owned by defendant FMS Properties, L.L.C. (FMS). Judgment by default in the amount of $619,004 was entered in favor of Donaldson on his claims against the dog's owner, defendant Linda Lipinski. He appeals from a grant of summary judgment in favor of FMS, Lipinski's landlord.

The facts, viewed in the light most favorable to plaintiff are as follows. Maria Schepis and her husband, the only members of FMS, purchased the Park Ridge Apartment complex in November 2006. At the time of closing, between ten and fifteen of the thirty-six units in the complex were vacant. FMS retained the superintendent hired by the former owner, and Mr. Schepis, who was renovating the vacant apartments, was frequently on the premises. Neither Mr. nor Mrs. Schepis inspected the occupied apartments, however.

The leases under which the tenants held their apartments prohibited pets, and Mr. and Mrs. Schepis were aware that some of the tenants were violating that condition. In December 2006 and again in February 2007, Mrs. Schepis wrote letters to four tenants, including Lipinski, demanding removal of their dogs.

She also telephoned the tenants who were in violation of the nopet clause. Lipinski told Mrs. Schepis she would need time to find a new apartment because she was unwilling to give up her dog.

Although Mrs. Schepis understood that some dogs can be dangerous, neither she nor her husband inquired about the viciousness of their tenants' pets. There is, however, no evidence of any complaints about the temperament of the dogs or the owners' failure to control them.

On March 24, 2007, Donaldson, then eight years of age, was visiting a friend whose parents lived in the Park Ridge Apartments. The children were playing in a grassy area in front of Lipinski's apartment. Lipinski's dog, a pit bull, left the building and attacked Donaldson. The child sustained injuries to his head, face, ear, clavicle, arm and shoulder blade, some of which left permanent and disfiguring scars.

When the police arrived, Lipinski told the officers that the dog was vicious and could not be handled by anyone other than her or her brother. The window of Lipinski's apartment was open. The screen on that window and the door to the apartment were broken.

On appeal from a grant of summary judgment to a defendant, the question is whether the defendant is entitled to a judgment as a matter of law if the plaintiff is given the benefit of all favorable facts and inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The grant of summary judgment was appropriate in this case.

The principles governing a landlord's liability in this circumstance are stated in Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68 (App. Div. 1999): "[A] landlord owes a duty to his tenant or his tenant's invitees, to prevent injury from his tenant's dog if he is aware of the presence of the animal on his property and is also aware of its vicious propensities." Id. at 71 (citations omitted) (emphasis added).

Plaintiff contends that Hyun Na Seo gives inadequate consideration to the landlord's duty to make inspections and inquiries necessary to maintain the common areas of the premises in a reasonably safe condition. There is no question "that a landlord is obliged to exercise reasonable care in the maintenance of common facilities under his control to the end that the premises are reasonably safe and fit for the uses which he has invited others to make of them." Linebaugh v. Hyndman, 213 N.J. Super. 117, 120-21 (App. Div. 1986), aff'd o.b., 106 N.J. 556 (1987). That duty includes the obligation to make "reasonable inspections of its property and tak[e] such steps as are necessary to correct or give warning of hazardous conditions or defects actually known to the landowner." Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414 (2004); see Linebaugh, supra, 213 N.J. Super. at 121-22. Even when the hazardous condition is one over which the landlord has no direct control, the "landlord may not sit idly by a hazardous condition affecting its property." Monaco, supra, 178 N.J. at 416; see Linebaugh, supra, 213 N.J. Super. at 121-22. A tenant's abnormally vicious dog is similar to an artificial hazardous condition on the property, and a landlord who has reason to believe that a dog has a vicious temperament must act to prevent injury to those in the common areas of the premises. See id. at 120-22.

Plaintiff argues that it is reasonable to infer that Lipinski, who told the police her dog was vicious and could not be controlled by others, would have told her landlord the same thing if the landlord had asked about the temperament of her dog. Giving plaintiff the benefit of that inference, our decisions do not suggest that a landlord who has no information suggesting danger in areas of the premises under the landlord's control has an obligation to inquire about the temperament of dogs kept by tenants. See id. at 121-22.

Under the controlling precedents, the landlord's duty to protect against danger in the common areas is based on facts observable from a reasonable inspection of the areas under the landlord's control. See Monaco, supra, 178 N.J. at 413-14 (where a reasonable inspection would have shown that a sign installed and maintained by the City on a city sidewalk installed and maintained by the landlord was not secured to withstand the wind in the area). Ownership and control of the source of danger become irrelevant to the landlord's duty to eliminate risks to those in the common areas when the danger is "obvious." Id. at 417. Based on that precedent, we conclude that a landlord's duty to make reasonable inspections for the safety of persons in the common areas does not require action to ascertain whether a particular tenant's pet is abnormally vicious unless and until there is some manifestation of behavior that a reasonable landlord would recognize as posing a danger to persons in areas under the landlord's control.

We recognize that the Legislature has acted to make a dog's owner strictly liable when a dog bites a person who is lawfully present whether or not the owner has information indicating that the pet is dangerous, N.J.S.A. 4:19-16. But, the Legislature has not acted to require landlords to reject or evict any tenant who has a dog. To the contrary, when the Legislature has considered the question of tenants' pets and landlords' responsibility it has opted in favor of permitting tenants to have pets not prohibited by state or local law. See N.J.S.A. 2A:42-104 to -113 (addressing the circumstances under which tenants in senior citizen housing projects must be permitted to have pets and providing immunity for a landlord who complies with the statute).

Because the facts, viewed in the light most favorable to plaintiff, do not permit the inference that Mr. or Mrs. Schepis or their agent knew or had reason to know that Lipinski's dog was abnormally vicious, FMS was, as plaintiff acknowledges, entitled to summary judgment under our holding in Hyun Na Seo. In the absence of direction from the Legislature or evidence relevant to the competing interests implicated by extending the landlord's duty to make reasonable inspections for the safety of common areas to include an obligation to inquire about the dangerousness of every dog kept by every tenant, we decline to revisit Hyun Na Seo.

Affirmed.

20090428

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