August 9, 2013
BARBARA CHRISTEN and ALBERT CHRISTEN, her husband, Plaintiffs-Appellants,
MARK WYKA and EILEEN WYKA. Defendants-Respondents
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2865-11.
Phillip C. Wiskow argued the cause for appellant (Gelman Gelman Wiskow & McCarthy, LLC, attorneys; Mr. Wiskow, on the brief).
Jeanne O. Marino argued the cause for respondent (Harwood Lloyd, LLC, attorneys; Ms. Marino, of counsel and on the brief).
Before Judges Ashrafi and Espinosa.
Plaintiffs alleged that, as a result of defendants' failure to maintain their property and take reasonable measures to control their dog, plaintiff Barbara Christen stepped off a sidewalk abutting defendants' property into a depression in the grass and was injured. They appeal from an order that granted summary judgment to defendants, dismissing their complaint. We affirm.
The facts are largely undisputed. Because plaintiffs unsuccessfully opposed summary judgment, we view the competent evidence in the light most favorable to them and apply the same standard as the trial court to determine whether the evidence shows "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Defendants own a home on Banta Place in Fair Lawn that is located on a 50x100 lot. Their 30x50 yard is completely fenced in by a four-foot cyclone fence. Defendants own two Rhodesian Ridgeback dogs that have no history of biting or attacking anyone. The dogs were kept in an enclosed porch during the day while defendants were at work. Defendant Mark Wyka (Wyka) testified that he took the dogs for a daily walk of one to one and one-half miles at dusk and took them running approximately once a week for a period of forty-five minutes.
On June 12, 2009, Wyka returned home from his employment as a Fair Lawn police officer, let the two dogs into the fenced yard and got into the shower. He did not take the dogs for their walk before taking a shower.
Plaintiff and her friend, Elsie Kinner, were "avid walkers." On that day, they decided to take a different route for their hour-long walk. It was light and sunny, the sidewalks and roads were dry, and plaintiff was wearing relatively new walking sneakers. At about 7:00 p.m., plaintiff and Elsie had walked for approximately one-half hour when they arrived on the public sidewalk of Banta Place. Plaintiff stated there were no defects in the sidewalk that contributed to her fall but the grassy section next to the sidewalk "dipped down like a pothole" and was "[d]eep enough to cause [her] to fall in it." Plaintiff said the sidewalk was approximately thirty feet from the front corner of defendants' home.
Plaintiff described the incident as follows:
Very simple. Walking past the house the dogs come charging, growling, barking up on the fence, natural reaction to be startled. I veered to the right which was a natural instinct. At that point my foot went into this impression in the grassy section which cause me to fall down.
That's the whole story. There's nothing else to it.
The dogs remained within the fenced yard throughout this incident.
Kinner could not recall the order of events precisely. She stated she and plaintiff were "talking back and forth" when "all of a sudden . . . Barbara [is] screaming, the dogs are barking and I'm reaching to try to grab her. She was down. That's how fast, boom." Kinner agreed that plaintiff had "a very startled reaction" but said she was not startled by the dogs barking. She said plaintiff landed on the ground, sitting upright with her legs straight out.
After hearing his dogs barking in an "alerting" manner, Wyka looked outside and saw plaintiff sitting on the ground and Kinner standing next to her. He dressed quickly, went outside and asked plaintiff what had happened. Wyka testified, "she told me she didn't know what happened and she said she had fallen." Wyka said that plaintiff "never" mentioned anything about the dogs or stated the dogs had played a role in her ending up on the sidewalk.
Wyka testified that, on the day plaintiff fell, there was a "Beware of Dog" sign on the fence. He had seen the dogs bark and assumed they would run from the back of the yard to the front to see when a passerby walked by on the sidewalk. However, he had never received any complaints that the dogs "had acted in a menacing fashion" or received any complaints about the dogs' behavior when they were in the yard. Although the male dog stands up to look over the fence, he said, the dogs had never tried to jump over the fence.
Plaintiffs produced a report from a canine behavior expert, Robert H. Brandau. In his report, Brandau stated that Rhodesian Ridgebacks need "vigorous daily exercise." Adults "are large enough to stand over the 4 foot chain link fence; when they jump up and stand on the fence their heads and upper bodies will be visible above the fence." They are "capable of jumping over a 4 foot fence." Defendants "failed to control [their] dogs by allowing the dogs to jump up on the fence and gate and bark aggressively."
In appealing the order granting summary judgment to defendants, plaintiffs argue they have proven a prima facie case of negligence against defendants and that genuine issues of fact exist to preclude summary judgment. However, their appeal turns on a question of law, i.e., whether the facts here can support the imposition of liability upon defendants.
Plaintiffs argue that liability can be imposed upon defendants because they had sufficient knowledge that their dogs had propensities that were likely to cause harm. In the alternative, plaintiffs argue that defendants were negligent in failing to exercise and control their dogs. Plaintiffs concede that the dog bite statute, N.J.S.A. 4:19-16, does not apply in this case. Still, they rely upon cases in which the injury was caused by some physical contact, if not actual biting, between the dog and the injured party. Plaintiffs have cited no authority that imposed liability upon a dog owner for an injury suffered by a party who was not on the dog owner's property and who had no physical contact with the dog.
In determining whether tort liability is appropriately imposed upon defendants here, we are guided by the principles articulated in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993):
Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors -- the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.
[Id. at 439.]
As the Court recently emphasized, this "analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct." Estate of Desir v. Vertus, N.J., (2013) (slip op. at 34) (quoting Hopkins, supra, 132 N.J. at 439).
It is at once apparent that plaintiff does not fall into any of the traditional classifications of persons considered in assessing premises liability because, unlike the business invitee, licensee, or trespasser, see Hopkins, supra, 132 N.J. at 433, she was never on defendants' property. We note further that defendants are residential landowners, rather than commercial property owners who would be subject to a higher duty to passersby. See Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 159 (1981); see also Luchejko v. City of Hoboken, 207 N.J. 191, 210 (2011).
It is equally difficult to define the nature of the risk here. The "fundamental purpose" of premises liability law is "to deter conduct that creates an unreasonable risk of injury to others." Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 402 (2006) (emphasis added). The typical case involving liability based upon dog behavior concerns injuries that were directly inflicted by the dog. In contrast, plaintiff's proof is that she fell when she was startled by the dogs barking. There is no evidence that the dogs had any vicious propensities. The worst behavior attributable to the dogs is that they ran to the front of the property, barking, and stood up against the fence to peer over it. Even if this behavior created a risk of injury to others, it does not pose an unreasonable risk of physical injury.
Turning to defendants' opportunity and ability to exercise care, the facts are that defendants had a posted sign that alerted passersby, "Beware of Dog, " and that the dogs were in a fenced yard, from which they never left. Plaintiffs have criticized the amount of exercise the dogs get and the fact that they are kept in an enclosed porch to suggest that these factors fostered dangerous propensities. However, it is undisputed that the dogs have no history of vicious behavior, that defendants received no prior complaints about them, and that the dogs did not directly inflict any injury upon plaintiff.
Although no one of the factors identified in Hopkins is dispositive, the Court has stated that "the true focus of any potential expansion of a duty in tort . . . is an evaluation of the public interest." Estate of Desir, supra, slip op. at 43. It is therefore "essential to recognize not the interests of the particular individuals before the Court, but instead to take careful consideration of the effect that the creation of a duty will have more generally on the public." Ibid. Specifically, the effect upon the public of a duty requires an evaluation of "how establishing this duty will work in practice." Id . at 44; see also Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 515 (1997) ("Ultimately, the determination of the existence of a duty is a question of fairness and public policy.").
The duty plaintiffs seek to impose on defendants would require residential property owners to safeguard pedestrians on public sidewalks from being startled by a dog barking in a fenced yard where a "Beware of Dog" sign is posted. It may well be foreseeable that a pedestrian will be startled by sudden loud noises emanating from a private residence, causing him to fall and be injured. However, as a general rule, a landowner "is not liable for off-premises injuries merely because those injuries are foreseeable." Id . at 518. Moreover, a barking dog is but one of an endless variety of events that may occur on residential property and that have the capacity to startle a passerby. The same potential harm could be caused by a shrieking toddler, a tree branch crashing onto the homeowner's roof, or a sudden increase in the volume of music coming from the house.
Our consideration of the nature of the relationship between the parties, the nature of the risk, and defendants' opportunity and ability to exercise care thus leads us to conclude that none of these factors weighs heavily in favor of imposing a duty on the facts here. Turning to the effect a duty defined to apply to defendants here would have on the public and work in practice, we are convinced that the breadth of such a duty would exceed what is appropriate to deter conduct that poses an unreasonable risk of injury to pedestrians walking on a public sidewalk. We therefore agree that summary judgment was properly granted to defendants.