On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3423-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
Plaintiffs Marissa Down Rovensky and Leo Rovensky commenced this litigation against their landlord, defendant third-party plaintiff B&W Limited Holdings, LLC, to recover damages they sustained when Marissa was attacked by a dog of another tenant, third-party defendant Norma Perez. Concluding that plaintiffs lacked evidence to establish a critical element of their claim - defendant's awareness of the dog's vicious propensities - the trial court granted defendant's motion for summary judgment. Because there is a genuine dispute of fact about what defendant knew, we reverse.*fn1
Plaintiffs' lease prohibits pets, but Perez's tenancy predated theirs and was not subject to that prohibition. Perez's dog attacked Marissa in the basement of the apartment building. The electrical panel for the building is in the basement, and tenants routinely went there to restore the power in their apartments. Perez's apartment was also in the basement, and for several years, Philip Buzzerio, defendant's principal, made efforts to have her oust the dog. Although Buzzerio denied knowledge of anything indicative of the dog's viciousness, he did explain that he asked Perez to keep the dog in her apartment because repairmen had refused to work in the basement unless the dog was confined.
When plaintiffs moved into the building, about four months prior to
the dog's attack on Marissa, defendant's maintenance man, David T.
Killion, warned them that Perez kept "a vicious dog."*fn2
Killion denies any recollection of saying that, and asserts
he did not think of Perez's dog as "nasty" and was unaware of the dog
exhibiting "violent tendencies" before this incident. In his view,
there was no reason for him to tell his employer that Perez's dog
posed a danger.
There is no dispute that the injuries Marissa sustained required medical treatment.
On appeal, plaintiffs argue:
I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO EVIDENCE THAT DEFENDANT WAS AWARE THAT THE DOG WAS DANGEROUS.
II. THE SUPERINTEND[E]NT WAS AN AGENT, SERVANT OR EMPLOYEE OF DEFENDANT,
B&W LIMITED HOLDINGS, [LLC], THUS IMPOSING VICARIOUS LIABILITY ON IT FOR THE NEGLIGENCE OF THE EMPLOYEE BY FAILING TO ADDRESS A DANGEROUS CONDITION WHEN IT HAD NOTICE OF THE SAME.
III. THE SUPERINTEND[E]NT WAS AN AGENT, SERVANT OR EMPLOYEE OF ...