June 27, 2011
GAETANO CASATELLI, A MINOR BY HIS GUARDIAN AD LITEM, ANNETTE CASATELLI, PLAINTIFFS-APPELLANTS,
WALTER DRESSLER, JR., MELISSA CANDIDO, DEFENDANTS, AND EAST COAST PROPERTY MANAGEMENT SERVICES, LLC, JAMES JACKO AND CHRISTINE VAN SANDT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1817-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 16, 2011
Before Judges Axelrad and Lihotz.
Plaintiff Gaetano Casatelli, a minor, represented by his mother as guardian ad litem, was bitten by a pit bull owned by the defendants, Walter Dressler, Jr. and Melissa Candido. Dressler and Candido rented the home where the accident occurred. Defendants James Jacko and Christine Van Sandt owned the property, which was managed by defendant East Coast Property Management Services, LLC (collectively the landlords).
Plaintiff appeals from the summary judgment dismissal of his complaint against the landlords based upon the court's determination there was no evidence the landlords had prior knowledge of the pit bull's aggressive propensities. We affirm.
We recite the facts taken from the summary judgment record, viewed in a light most favorable to the plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On August 28, 2007, while he was waiting to play with Dressler and Candido's daughter, Casey Candido, and without warning or provocation, eight-year-old plaintiff was bitten on the arm by Dressler and Candido's pit bull. Plaintiff was familiar with the dog as he had pet the animal many times without incident. On the day in question, the pit bull was unchained in the home's front yard, which was surrounded by a three to four foot chain-link fence. A hole in the fence was blocked by a wooden board, which the dog knocked over, allowing it to escape. After leaving the yard, the dog bit plaintiff.
Discovery revealed Candido rented the two-family home from the landlords and had obtained permission from the landlords to keep the dog on the premises. Prior to the accident, the landlords had received no complaints that the pit bull evinced aggressive conduct or bit anyone. The adjoining neighbor registered two complaints with the landlords after the pit bull had escaped from the yard previously. Following the accident in question, the landlords served Candido with a notice to quit. The family vacated the property shortly thereafter.
Among the claims included in plaintiff's complaint is a count alleging negligence against the landlords, which seeks recovery for personal injuries plaintiff suffered from the dog bite. Neither Candido nor Dressler responded to the complaint and a default judgment of $35,000 was entered against them.
Following discovery, the landlords moved for summary judgment dismissal of the complaint, arguing they had no prior knowledge of the dog's vicious tendencies and, therefore, they had no duty to protect plaintiff from the dog. Following oral argument, Judge David Bauman granted the landlord's motion. This appeal ensued.
On appeal, plaintiff suggests in granting summary judgment, the trial court ignored material disputes of fact regarding the landlords' knowledge of the dog's vicious propensities and their duty to maintain a safe premises for invitees. In support of his argument, plaintiff plucks language from our opinion in Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 72 (App. Div. 1999), contending the trial court should impose a duty on the landlords after taking judicial notice that pit bulls are "inherently vicious."*fn1 We reject plaintiff's argument as meritless. R. 2:11-3(e)(1)(E), adding these brief comments.
The Legislature has imposed strict liability upon owners for dog bites. N.J.S.A. 4:19-16. The statute provides:
[t]he owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness. [Ibid.]
"The statute is clearly inapplicable to establish direct liability of [a] landlord . . . [who] is not the dog's owner." Zukowitz v. Halperin, 360 N.J. Super. 69, 72 (App. Div. 2003). See also De Robertis v. Randazzo, 94 N.J. 144, 158 (1983).
Under common law, "a landlord is not responsible for injuries caused by its tenant's dog." Hyun Na Seo, supra, 320 N.J. Super. at 71 (citations omitted). See also Zukowitz, supra, 360 N.J. Super. at 74. However, a landlord is under a common law duty to exercise reasonable care to guard against foreseeable dangers arising from the use of the leased premises. Ellis v. Caprice, 96 N.J. Super. 539, 547 (App. Div.), certif. denied, 50 N.J. 409 (1967). Therefore, a landlord's duty to protect a tenant or the tenant's invitees could arise with respect to a tenant's dog if the landlord knew the dog was on the property and had "vicious propensities." Hyun Na Seo, supra, 320 N.J. Super. at 71. See also Linebaugh v. Hyndman, 213 N.J. Super. 117, 120 (App. Div. 1986), aff'd o.b., 106 N.J. 556 (1987).
Here, although the landlords permitted the pit bull to be housed on the property, were told it would be kept on a chain, and were informed when the animal had broken free of the yard in the past, these facts standing alone do not engraft the dog with "vicious propensities." Hyun Na Seo, supra, 320 N.J. Super. at 71; Linebaugh, supra, 213 N.J. Super. at 121-22. Nothing in the pit bull's prior behavior manifested the animal posed a danger. Prior to the incident involving plaintiff, nothing revealed the pit bull had a tendency to bite. Plaintiff himself had played with the dog on several past occasions without incident.
Moreover, plaintiff offers no expert evidence to support his proposition that pit bulls, as a breed, are vicious dogs. Instead, he suggests the statement is a known fact to which the court should have taken judicial notice, a proposition we wholly reject.
Judicial notice is permitted and obviates a party's obligation to provide additional proof of those facts subject to notice. N.J.R.E. 201(b) authorizes a trial judge to take judicial notice of:
(1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute, (2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute, (3) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, . . . .
"The rules regarding judicial notice are designed solely to provide a speedy and efficient means of proving matters which are not in genuine dispute." RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 711 (App. Div. 1988) (citing 9 Wigmore on Evidence § 2565-§ 2567a, at 693-719 (Chadbourn rev. 1981)).
A dog breed's propensity to be vicious is neither a universally known fact nor a matter of undisputed general knowledge. Consequently, it is a subject provable by expert opinion. Plaintiff proffered no evidence from which a reasonable jury could establish the pit bull's propensity for violence. Such a finding based on the proofs would be rooted solely on passion, prejudice, or partiality, which is an impermissible result. See Crawn v. Campo, 136 N.J. 494, 512 (1994) (stating a new trial is warranted when a jury verdict clearly is "the product of mistake, passion, prejudice or partiality").
Judge Bauman correctly declined the invitation to accept plaintiff's unfounded assertion regarding the temperament of the pit bull breed. We concur with his finding that the landlords had no prior notice suggesting the dog would cause harm, and discern no basis to disturb his conclusion that the landlords breached no duty to plaintiff to prevent injury from the tenant's dog. Accordingly, summary judgment was properly entered.