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Michael Terhune v. Don Guerriero

August 3, 2011

MICHAEL TERHUNE, PLAINTIFF-APPELLANT,
v.
DON GUERRIERO, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4619-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011

Before Judges Graves and Yannotti.

Plaintiff Michael Terhune appeals from an order entered by the Law Division on September 16, 2010, granting summary judgment in favor of defendant Don Guerriero. We affirm.

This matter arises from an incident that took place on February 23, 2007, on defendant's property in Ridgewood, New Jersey. Defendant is the owner of a brown Labrador Retriever. Defendant allowed his dog to roam the yard and she was rarely on a leash. Plaintiff was employed by a fuel company and entered upon defendant's property to deliver oil. Plaintiff heard the dog bark. Plaintiff noticed the dog lift its head and start running towards him. Plaintiff said that he "panicked" and began to run towards the gate. He injured his knee and fell to the ground screaming.

Plaintiff called his company and asked for assistance. William McKinley Carr (Carr) came to defendant's home with another employee. The employee assisted plaintiff and Carr completed the oil delivery. Plaintiff testified at his deposition that when Carr was making the delivery, "the dog went after him" but did not bite him. However, at his deposition, Carr testified that he did not see the dog outside of the house. Carr also said the dog was "a nice dog."

Plaintiff thereafter filed a complaint in the Law Division. Among other things, plaintiff alleged that defendant was negligent because he caused or otherwise maintained a "defective condition" on his property. Plaintiff claimed that he sustained A-0974-10T1 severe and serious personal injuries as a result of defendant's negligence.

On June 29, 2009, defendant filed a motion for summary judgment. Defendant argued that plaintiff failed to present sufficient evidence to show that he was negligent. He asserted that there was insufficient evidence to show that his dog was involved in the alleged incident and, moreover, that plaintiff failed to show that the dog had a propensity to act in a dangerous manner. The trial court considered the motion on September 16, 2010, and placed its decision on the record on that date.

In its decision, the court pointed out that plaintiff had claimed that defendant's dog barked at him and he fell when he ran from the dog. The court found, however, that there was no evidence that the dog chased plaintiff or barked at him "in a vicious or dangerous manner." The court concluded that, under the circumstances, there was insufficient evidence to support a claim against defendant. The court entered an order dated September 16, 2010, granting summary judgment in favor of defendant. This appeal followed.

Plaintiff argues that: 1) defendant had a duty to control his dog and there was a genuine issue of material fact as to whether defendant was negligent; 2) the trial court erred by failing to classify plaintiff as a business invitee entitled to the highest degree of care; 3) defendant's dog was a dangerous instrumentality requiring additional vigilance on the part of defendant; and 4) the court improperly "invaded" the jury's province by making factual and credibility determinations that should have been reserved for trial.

We have carefully considered the record and conclude that plaintiff's arguments are entirely without merit. We accordingly affirm the order granting summary judgment in favor of defendant substantially for the reasons stated by the trial court in the decision that it placed on the record on September 16, 2010. We add the following.

The common law recognizes that, when a dog injures a person but does not inflict a bite, the injured person may have a claim against the dog's owner. De Robertis v. Randazzo, 94 N.J. 144, 153-56 (1983). The dog's owner may be absolutely liable if the plaintiff proves that the dog was vicious and the owner knew or had reason to know of the dog's "abnormally dangerous characteristics." Id. at 153 (citing Restatement (Second) of Torts ยง 509 (1977)). If the dog is not vicious or the owner does not know of the dog's vicious ...


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