On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6091-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Plaintiff Rochelle Puzzutiello was visiting the home of her friend, defendant Gail Wurster, when one of defendant's dogs ran between plaintiff's legs, causing plaintiff to fall and sustain injury. The motion judge granted summary judgment to defendant, concluding that under the circumstances presented defendant owed no duty to plaintiff to warn her that the dog might run between her legs. We agree with that determination and affirm.
Plaintiff and defendant became close friends in 1995, speaking to each other on the phone daily, and frequently staying overnight at each other's homes. Even after plaintiff moved to Florida in 2004, the two continued to speak by telephone nearly every day, and grew so close that they refer to each other as "sisters." Because defendant maintained her apartment in Audubon after moving to Florida, she returns to New Jersey over the holidays and on other occasions during the year. Over the course of her friendship with defendant, plaintiff estimated she has been to defendant's home "hundreds" of times.
In February 2009, defendant notified plaintiff that she had been diagnosed with cancer and would be undergoing surgery in a few weeks. Plaintiff immediately made plans to come to New Jersey as soon as defendant was released from the hospital, and to stay with defendant to help her "[t]ake care of everything."
On March 23, 2009, an hour after defendant returned home from the hospital, plaintiff's brother Joseph Ezzi drove plaintiff to defendant's home. When plaintiff entered the house through the back door, defendant's dogs were seated at defendant's feet. The older of the two dogs, Gabby, weighed between sixty and seventy pounds. The younger dog, a mixed breed named Lucy, weighed approximately forty pounds. Plaintiff described Lucy's temperament as "lovable." When asked what she meant by "lovable," plaintiff responded, "She would sit on your lap. She thought she was a lap dog. . . . [S]he was very gentle."
When plaintiff entered defendant's home on the day in question, neither of the dogs seemed "excitable" or "unruly." While unpacking her suitcase in a first-floor bedroom, plaintiff observed the two dogs remaining quietly at defendant's feet. With the aid of defendant's daughter, plaintiff next attempted to raise the head of defendant's bed, but was unsuccessful. At this point, the dogs still were seated at defendant's feet.
After sitting on the couch watching television for a brief period of time, plaintiff walked over to the recliner where defendant was seated "to tell her that I love her . . . cause she was in pain, . . . and I was trying to comfort her." While plaintiff stood next to defendant, both dogs still remained on the floor at defendant's feet. Plaintiff described the dogs' demeanor as "fine," noting that "[t]hey seemed to just want to stare at [plaintiff]." When asked whether the dogs were "unruly or jumping around in any way," plaintiff answered "no."
When plaintiff turned to go back to the sofa, she tripped over the dog Lucy, fracturing her ankle. When asked what Lucy was doing just before plaintiff tripped over her, plaintiff answered, "I guess she was just sitting, I don't really know." She explained that the dog "stood up in between my legs. I think maybe I was probably -- I don't know what I was doing. It happened so -- so fast and I don't know how the dog tripped me." She added it was "possibl[e]" that the dog "was trying to get out of [her] way as [she was] walking." Plaintiff acknowledged at her deposition that immediately before she fell, Lucy was not "acting in an unruly fashion in any way."
Defendant provided a written statement to plaintiff's investigator in which she explained:
The three of us [plaintiff, defendant and Ezzi] were in the living room area of my house, talking. . . . The dogs were overly excited I guess to see the guests in the house. And me, on my return home from the hospital[.] I was sitting in the chair and the two dogs were near [plaintiff] who was standing near the television, actually she was walking away from me. The smaller dog [Lucy] followed her and moved between her legs causing her to trip. She couldn't regain her balance and fell into the wall. . . . I knew she was injured seriously. . . . I want to say again that I felt terrible ...