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Michael Terhune v. Don Guerriero

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 § 509 (1977)). If the dog is not vicious or the owner does not know of the dog's vicious propensities, the owner may be liable if the plaintiff can establish that the owner was negligent "in failing to prevent the injury." Id. at 156.

(citing Arnold v. Laird, 621 P.2d 138, 140-41 (Wash. 1980); Restatement (Second) of Torts § 518 (1977)).

Here, it is undisputed that defendant's dog did not bite plaintiff. According to plaintiff, the dog was unleashed and barked at him when he entered upon defendant's property. However, plaintiff presented no evidence that the dog acted in a vicious or abnormally dangerous manner. Moreover, there was no evidence that defendant's dog previously had attacked anyone or had a propensity to act viciously or dangerously.

While the owner of a dog may be negligent if the owner breaches the duty owed to a person lawfully on his property, the duty owed is "'commensurate with the danger'" that the dog poses to others. Ibid. (quoting DeGray v. Murray, 69 N.J.L. 458, 461 (Sup. Ct. 1903)). Although defendant's dog was not on a leash at the time of the incident and may have barked at plaintiff, there is insufficient evidence to show that the dog posed any particular danger to plaintiff.

Plaintiff argues, however, that the trial court erred by granting summary judgment to defendant because there was a genuine issue of material fact as to whether defendant was negligent. We disagree. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

"If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). Here, the trial court correctly found that the evidence was insufficient to support a finding by a rational fact-finder that defendant was negligent.

Plaintiff also argues that defendant's dog was a "dangerous instrumentality" that required additional vigilance on defendant's part. Again, we disagree. As we have pointed out, there was no evidence that the dog had attacked anyone in the past or had a propensity to act in an abnormally dangerous or vicious manner. Furthermore, Carr testified at his deposition that the dog was a "nice dog."

Finally, plaintiff claims that the trial court improperly "invaded" the province of the jury by granting summary judgment in defendant's favor. However, summary judgment must be granted when the evidence "'is so one-sided that one party must prevail as a matter of law[.]'" Ibid. (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214). Here, the trial court correctly found that the evidential materials, viewed in a light favorable to plaintiff, were insufficient to allow a rational fact-finder to find that defendant negligently failed to control his dog.

Affirmed.

20110803

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