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Christen v. Wyka

Superior Court of New Jersey, Appellate Division

August 9, 2013

BARBARA CHRISTEN and ALBERT CHRISTEN, her husband, Plaintiffs-Appellants,
v.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM

Plaintiffs alleged that, as a result of defendants' failure to maintain their property and take reasonable measures to control their dog, plaintiff Barbara Christen[1] 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 ...

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