Linebaugh By and Through Linebaugh v. Hyndman

• Decision Date: 20 October 1986
• Parties: Samantha LINEBAUGH, By and Through her Guardian Ad Litem and natural mother, Anna LINEBAUGH and Anna Linebaugh, in her own right, Plaintiffs-Appellants, v. Hayworth HYNDMAN, Sherry Thompson, Adam Honegstein and Maryla Honegstein, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 117

213 N.J.Super. 117

516 A.2d 638

Samantha LINEBAUGH, By and Through her Guardian Ad Litem and natural mother, Anna LINEBAUGH and Anna Linebaugh in her own right, Plaintiffs-Appellants, v. Hayworth HYNDMAN, Sherry Thompson, Adam Honegstein and Maryla Honegstein, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 30, 1986.

Decided Oct. 20, 1986.

Basile, Testa & Testa, Vineland, attys. for plaintiffs-appellants (Richard M. Pescatore, on the brief).

Slimm, Dash & Goldberg, Westmont, attys. for defendants-respondents (Marc B. Zingarini, on the brief).

Before Judges PRESSLER, BAIME and ASHBEY.

The opinion of the court was delivered by

BAIME, J.A.D.

Plaintiff Anne Linebaugh, acting as guardian ad litem and individually, instituted this action to recover damages for injuries sustained by her daughter Samantha who was bitten by a dog owned by one of the tenants of defendants, the Honegsteins. The attack occurred in a common backyard area shared by the tenants of defendants' two-family house. Defendants, who reside in another state, were alleged to have been aware of both the presence of the dog on their property and its dangerous propensities. The trial judge granted defendants' motion for summary judgment on the basis that a landlord has no obligation to protect invitees from harm caused by a tenant's domestic animal. We reverse. We hold that a landlord's responsibility to exercise reasonable care in the maintenance of common areas under his control encompasses a duty owed to his tenant's invitees to prevent injury from a vicious animal kept on such premises with his knowledge.

We briefly recite the facts which are undisputed for the purpose of this appeal. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954). Defendants are the owners of a two-family duplex in which Sherry Thompson and Richard Hayworth ¹ rented separate units. Both tenants shared a common backyard in which Hayworth kept his dog, a large German Shepherd. Although the meager record is not wholly informative, it would appear that defendants were aware of the presence of the animal on their property and its vicious propensities. Apparently, the dog had bitten another person prior to this incident and defendants had been notified of that fact.

On the date of the attack, plaintiff left her daughter with Thompson, who was babysitting for the day. While playing in the backyard, the infant was attacked and bitten by Hayworth's dog. The record does not disclose whether or not the animal was restrained by a rope or leash. In any event, the child suffered serious injuries.

Suit was commenced against Thompson, Hayworth and the defendants. Both Thompson and Hayworth defaulted and judgments were entered against them. The trial judge granted defendants' motion for summary judgment. He held that a residential landlord owes no duty to protect an invitee from the dangers attributable to a tenant's vicious dog kept in a shared common area.

We disagree. We begin with the premise that a landlord is obliged to exercise reasonable care in the maintenance of common facilities under his control to the end that the premises are reasonably safe and fit for the uses which he has invited others to make of them. Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 555, 186 A.2d 274 (1962); Levine v. Bochiaro, 137 N.J.L. 215, 219, 59 A.2d 224 (E. & A. 1948); De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 261-262, 511 A.2d 721 (App.Div.1986). Where a dwelling contains two or more apartments which are rented to separate tenants and the landlord provides certain facilities for their common use or benefit, possession and control of such portions are deemed to be retained by him. Coleman v. Steinberg, 54 N.J. 58, 63, 253 A.2d 167 (1969). In such situations, "the law imposes upon the landlord the duty of maintaining [such common facilities] in a reasonably safe condition for the use and enjoyment of the tenants." Ibid. Where he fails to satisfy that obligation and such failure results in harm to the tenants or persons lawfully on the premises, "ordinarily the landlord is liable for the [resulting] injury." Ibid. See also Monohan v. Baime, 125 N.J.L. 280, 282, 15 A.2d 599 (E. & A. 1940); Ellis v. Caprice, 96 N.J. Super. 539, 547, 233 A.2d 654 (App.Div.1967), certif. den. 50 N.J. 409, 235 A.2d 901 (1967); 2 Harper and James, The Law of Torts, § 27.17, p. 1517 (1956); Prosser, Law of Torts, § 63, pp. 406-408 (1964); Restatement, Second, Torts, § 360-361 (1965).

In our view, "[a]n abnormally [vicious] domestic animal is like an artificial [dangerous] condition on the property." DeRobertis v. Randazzo, 94 N.J. 144, 157, 462 A.2d 1260 (1983). Where a landlord, either by his affirmative consent or by his failure to take curative measures, permits another to harbor such an animal in those areas in which he retains control, he is liable to his tenants and others lawfully on the premises for the injuries that result. Consistent with the landlord's obligation to maintain the premises in a reasonably safe condition, a landlord is obliged to take reasonable measures to protect other tenants and their invitees from harm which a vicious dog is capable of inflicting. Cf. Nakhla v. Singer-Shoprite, Inc., 205 N.J. Super. 184, 187, 500 A.2d 411 (App.Div.1985), certif. den. 102 N.J. 399, 508 A.2d 257 (1986). To permit a landlord in such a situation to sit idly by in the face of the known danger to others would be socially and legally unacceptable. ²

We stress that...