JANET FREED VS. LINDA BASTRY (L-0813-17, MONMOUTH COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3284-18T2
JANET FREED,
Plaintiff-Appellant,
v.
LINDA BASTRY and
FRANK BASTRY,
Defendants-Respondents.
__________________________
Submitted April 27, 2020 – Decided June 29, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-0813-17.
Blume Forte Fried Zerres & Molinari, attorneys for
appellant (John E. Molinari, on the briefs).
Law Offices of Viscomi & Lyons, attorneys for
respondents (Patricia R. Lyons, on the brief).
PER CURIAM
Plaintiff Janet Freed appeals from the Law Division's order granting
defendants Linda and Frank Bastry summary judgment and dismissing plaintiff's
complaint alleging negligence. We review the grant of summary judgment de
novo, applying the same standard used by the trial court, which
mandates that summary judgment be granted[,] "if the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any,
show that 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."
[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
4:46-2(c)).]
We must determine "whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party, are sufficient
to permit a rational factfinder to resolve the alleged disputed issue in favor of
the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)). We owe no deference to the trial court's legal analysis. The Palisades
at Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442
(2017) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009)).
The motion record was largely undisputed, and, to the extent there are
disputed facts, we accord plaintiff the benefit of all favorable evidence and
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2
inferences. R. 4:46-2(c). Defendants' dog, a male golden retriever, ran into
plaintiff while chasing plaintiff's dog, a female golden doodle, in the Off -Leash
Dog Area of Thompson Park, a Monmouth County park in Lincroft. 1
"Guidelines for Use" of the off-leash dog area were posted near its entrance.
One guideline prohibited dogs "with a history of dangerous or aggressive
behavior[,]" as well as "[p]uppies under [four] months old[,]" from using the
area. The same guideline stated, "Dogs over [six] months old must be spayed
or neutered." On the day in question, defendants drove to the park from their
home, about twenty minutes away, with their dog, who was seven-and-one-half-
months old and had not been spayed or neutered.
Plaintiff and defendants were standing in the off-leash dog area
approximately four feet apart, conversing about golden retrievers, as the two
dogs began playing with and chasing each other. Plaintiff testified in her
deposition that she saw no reason to be concerned about either dog and never
called her dog away from defendant's dog. At one point, defendant's dog was
chasing plaintiff's dog, which ran between plaintiff and defendants. Defendants'
dog, however, ran into plaintiff at full speed, knocking her to the ground.
1
The two dogs were in the "all dog" area, along with plaintiff's second dog, a
female golden retriever, who was quite sedate and uninvolved in the events that
gave rise to the suit. The area has a separate area for small dogs.
A-3284-18T2
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Plaintiff allegedly suffered a tibial plateau fracture of her right knee and
underwent a series of surgeries.
Robert H. Brandau, a purported canine behavior expert, furnished a report
in support of plaintiff's claim that defendants were negligent. Brandau observed
that defendants' dog was more than six months old, not neutered, and had no
obedience training as of the date of the incident.2 Brandau opined, "[h]ad the
[d]efendants properly neutered their dog prior to letting him run free . . . , the
dog would have been less aggressive and therefore less likely to have run into
the [p]laintiff's leg." After a citing a study for the proposition that "significantly
more intact male[ dogs] were referred for aggressive and stimulus reactivity
behavior problems[,]" Brandau wrote:
In dog aggression toward humans, which is of far
greater concern to all, it is true that un-neutered males
are more likely to be involved in injury[-]related
incidents. Furthermore, since male dogs are larger,
such injuries can be more serious, such as in this case.
A study . . . found that male dogs were 6.2 times more
likely to fatally bite someone, and sexually intact dogs
were 2.6 times more likely to be involved in attacks
than are neutered dogs.
2
He also noted that defendants' dog was unlicensed, a violation of another
guideline for the area.
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4
Brandau noted defendants' deposition testimony in which they acknowledged
that their dog got "very excited" after a car ride, and when he was around other
animals. Brandau opined, "[n]eutering a dog makes them less aggressive toward
other dogs."
Defendants moved for summary judgment, contending that the park
guidelines did not create a duty owed by dog owners using the area to others in
the off-leash dog area. Therefore, bringing their un-neutered dog to the area
breached no duty. Plaintiff contended that the park guidelines had the force of
statutory law and were adopted by the county to curb aggressive canine
behavior. As such, plaintiff argued a breach of the guidelines was, if not
negligence per se, evidence of negligence. Plaintiff further contended that
Brandau's expert opinion established that the aggressive behavior of defendants'
dog caused the accident. After considering oral argument, the motion judge
reserved decision and a few days later rendered an oral decision on the record.
The judge reasoned that the posted guidelines did not create a duty owed
by defendants to plaintiff and others using the area. The judge also considered
whether imposing a duty on defendants to regulate their dog's behavior in the
off-leash area was fair, since people brought their dogs there precisely to let
them run free. The judge noted that "no one describe[d defendants'] dog's
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behavior as aggressive. . . . [H]e was simply running around a dog park." Citing
two decisions from New York that she found persuasive, Hamlin v. Sullivan,
939 N.Y.S.2d 770 (App. Div. 2012), and Long v. Hess, 78 N.Y.S.3d 588 (App.
Div. 2018), the judge concluded that a dog "running in a dog park and running
into a plaintiff is not sufficient to sustain a cause of action for negligence." The
judge entered the order under review, and this appeal ensued.
Before us, plaintiff argues that summary judgment was inappropriate
because defendants owed all dog owners using the area a duty to comply with
"validly promulgated park regulations[.]" Plaintiff also contends that a
reasonable juror could conclude that defendants' decision to allow their un-
neutered dog to run in the area was a proximate cause of plaintiff's injuries. We
are unpersuaded and affirm.
We digress briefly to discuss the jurisprudential framework in this state
regarding the liability of dog owners for injuries caused by their pets. Plaintiff's
complaint did not allege a cause of action under N.J.S.A. 4:19-16, which
imposes strict liability upon the owner of a dog for all damages caused if the
dog bites another person. The Court has recognized that "the statute does not
cover the situation in which an individual suffers injuries from being knocked
down by a dog[] but is never bitten." De Robertis v. Randazzo, 94 N.J. 144,
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151–52 (1983); see also Jannuzzelli v. Wilkens, 158 N.J. Super. 36, 41–42 (App.
Div. 1978) ("Notwithstanding N.J.S.A. 4:19-16, a common law cause of action
remains in which scienter must be proved to establish liability when a dog
injures a person, but does not inflict a bite." (citing Hayes v. Mongiovi, 121 N.J.
Super. 272, 274–75 (Dist. Ct. 1972), aff'd, 125 N.J. Super. 413 (App. Div.
1973))). The owner may be liable if he or she knew or should have known of
the dog's "dangerous or mischievous propensities" because "[p]eople can be
injured by playful, as well as mean, dogs." De Robertis, 94 N.J. at 150.
"A plaintiff who can prove that an owner knew of his dog's dangerous
propensities is not restricted to a negligence action; that plaintiff may have a
cause of action predicated on common-law absolute liability." Id. at 153. Here,
however, plaintiff has never asserted or demonstrated that defendants had the
requisite scienter regarding an aggressive or dangerous propensity on the part of
their dog. "[I]n the absence of scienter . . . , the owner should not be liable
unless a plaintiff can prove the defendant's negligence in failing to prevent the
injury." Id. at 156.3
3
As a result, both New York decisions cited by the motion judge, and cited
again by the parties in their appellate briefs, are of limited assistance, because
in New York, "a cause of action for ordinary negligence does not lie against the
owner of a dog that causes injury." Long, 78 N.Y.S.3d at 589 (quoting Antinore
v. Ivison, 19 N.Y.S.3d 649 (App. Div. 2015)).
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"To sustain a cause of action for negligence, a plaintiff must establish
four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate
cause, and (4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015)
(quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)). "[W]hether a
defendant owes a legal duty to another and the scope of that duty are generally
questions of law for the court to decide." G.A.-H. v. K.G.G., 238 N.J. 401,
413–14 (2019) (quoting Robinson v. Vivirito, 217 N.J. 199, 208 (2014)).
Plaintiff obviously recognized that defendants owed no duty to her and
other dog owners using the off-leash dog area to restrain their dog from doing
precisely what was permitted, i.e., allowing the dog to run around freely and
play with other dogs. Indeed, as plaintiff testified at her deposition, she saw
nothing about the behavior of defendant's dog that suggested any need to
intervene, or implicitly, for any action of defendants' part. As a result, plaintiff
attempts to have us impose a duty on defendants to have neutered their dog
before bringing him to the park based solely on the posted guidelines for use of
the area.
Plaintiff asserts the guidelines have the force of a duly enacted statute or
regulation, and defendants' violation of the guidelines is negligence per se or
evidence of their negligence because they represent the reciprocal duty users of
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the area owed to each other. Initially, we recognize that N.J.S.A. 40:32-7.12
grants a board of chosen freeholders the power by resolution to "make . . . rules
and regulations for the supervision, regulation and control of all activities
carried on, conducted, sponsored, arranged, or provided for in connection with
a . . . recreational, playground or public entertainment facility, . . . and may
prescribe and enforce fines and penalties" for a violation. N.J.S.A. 40:32-7.13
provides that such rules and regulations "shall be enforced by the same
proceedings and processes, and the practice for the enforcement thereof shall be
the same as that provided by law for the enforcement of other ordinances of the
municipality."
However, plaintiff never produced a resolution from the Board of Chosen
Freeholders adopting the guidelines as "rules and regulations" pursuant to the
statute, or prescribing any penalty for their violation. Nevertheless, to fully
address plaintiff's contention, we assume arguendo that the guidelines were
validly adopted regulations, which, if violated, could be enforced in the
appropriate municipal court as an ordinance violation.
A statutory or regulatory violation may be considered not only evidence
of negligence. but also may be "pertinent in determining the nature and extent
of any duty of care." Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 361
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(2016) (quoting Alloway v. Bradlees, Inc., 157 N.J. 221, 236 (1999)).4 "If a
'plaintiff does not fall within the class of persons for whose benefit the statute
was enacted,' such statute is 'not applicable either as evidence of a duty or as
evidence of negligence arising from a breach of such alleged duty.'"
Badalamenti v. Simpkiss, 422 N.J. Super. 86, 101–02 (App. Div. 2011) (quoting
Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 393 (1963)).
More importantly in this case, "the harm suffered must be of the kind which the
statute was intended, in general, to prevent[.]" Id. at 102 (quoting Prosser &
Keeton on Torts § 36 (5th ed. 2001)).
In Piscitelli v. Classic Residence by Hyatt, we considered whether the
federal Immigration Reform and Control Act (IRCA), particularly 8 U.S.C. §
1324a, established a standard of conduct which violation could support a claim
for negligence. 408 N.J. Super. 83, 105 (App. Div. 2009). We adopted the
principles set forth the Restatement (Second) of Torts, § 286 (1965), which
states:
The court may adopt as the standard of conduct of a
reasonable man the requirements of a legislative
enactment or an administrative regulation whose
purpose is found to be exclusively or in part (a) to
protect a class of persons which includes the one whose
4
Only in rare circumstances are violations of a statute conclusive proof of
negligence. Eaton v. Eaton, 119 N.J. 628, 642 (1990).
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interest is invaded, and (b) to protect the particular
interest which is invaded, and (c) to protect that interest
against the kind of harm which has resulted, and (d) to
protect that interest against the particular hazard from
which the harm results.
[(Emphasis added).]
We concluded that the plaintiff was not in the class of individuals IRCA
intended to protect, nor was the statute intended to protect against the plaintiff's
claim that defendant's negligence led to theft of her identity, nor was the statute
enacted to protect against that harm. Piscitelli, 408 N.J. Super. at 106.
In this case, although plaintiff never produced any evidence regarding the
reason for adopting the guidelines, we accept that limits on use of the area to
dogs six months or older, only if spayed or neutered, was intended to benefit
both the canine and human occupants of the off-leash dog area. Furthermore,
the guidelines may have been intended to curb aggressive behavior in older dogs,
thereby reducing the likelihood of sexual aggression toward other dogs, or the
biting of dogs or humans.
However, the guidelines were not intended to reduce the risk to those in
the off-leash area posed by a dog otherwise exhibiting no overt aggressiveness
or rambunctious behavior, such as jumping up on other dogs or humans in the
area. Even if we assume the guidelines reflected a reciprocal duty imposed on
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dog owners using the area to spay or neuter a dog that was more than six months
old, the guidelines were not intended to reduce the risk posed by normal canine
behavior, i.e., one dog running after another dog and, in the process, colliding
with a human. The guidelines were not intended to reduce the risk of the
particular hazard that caused plaintiff's alleged harm in this case.
Affirmed.
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