Robinson v. Vivirito

• Decision Date: 26 March 2014
• Citation: 217 N.J. 199,86 A.3d 119
• Parties: Charlotte ROBINSON, Plaintiff–Respondent, v. Frank VIVIRITO, Frankie Keller, Buena Regional School District Board of Education, and Kenneth S. Nelson, Defendants–Appellants.
• Court: New Jersey Supreme Court

217 N.J. 199

86 A.3d 119

Charlotte ROBINSON, Plaintiff–Respondent,

v.Frank VIVIRITO, Frankie Keller, Buena Regional School District Board of Education, and Kenneth S. Nelson, Defendants–Appellants.

Supreme Court of New Jersey.

Argued Jan. 7, 2014.

Decided March 26, 2014.

Gregory J. Giordano, Trenton, argued the cause for appellants (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, attorneys; Michael Pattanite, Jr., on the briefs).

Melville D. Lide, Vineland, argued the cause for respondent (Radano & Lide, attorneys).

Judge CUFF (temporarily assigned) delivered the opinion of the Court.

In this appeal we revisit the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1–1 to 12–3, to determine the temporal and physical limits of the duty of a school principal to protect third parties passing across school property. Here, a woman used the school yard as a short-cut to reach a local diner. As she walked across the grounds, a stray dog attacked her causing injuries requiring medical attention. The attack occurred on a Saturday when school was not in session and no school or school-sanctioned events occurred. Plaintiff contends that a resident of an adjacent property owned the dog that attacked her, that the dog slipped its leash and previously had accosted passersby, and that the principal of the school had notice of the other incident. Therefore, plaintiff argues that the principal and the school district had a duty to prevent future attacks from this known dangerous dog.

The trial court granted the motion for summary judgment filed by the school principal and the school board. The court held that the school principal owed no duty to the injured plaintiff. The Appellate Division disagreed. It held that a jury could find that the school principal had a duty to take measures to prevent entry of a known dangerous dog onto school property, and that a jury could find that the school principal breached that duty.

Under the circumstances of this case, we determine that a school principal owes no duty of care to a third party who decides to use school property after hours for personal purposes and is injured by a stray animal that is neither owned nor controlled by school personnel. We, therefore, reverse the judgment of the Appellate Division.

I.

We derive the facts viewed in the light most favorable to plaintiff from the record submitted in support of and in opposition to defendants' motion for summary judgment. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n. 1, 35 A.3d 653 (2012); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540, 666 A.2d 146 (1995). The record reveals that on Saturday, September 12, 2009, plaintiff Charlotte Robinson was walking from her home to a nearby diner when she was attacked by a dog. When Robinson encountered the dog, she was on the grounds of the Dr. J.P. Cleary Middle School, a school facility owned and operated by defendant Buena Regional School District Board of Education (Buena Board). Defendant Frankie Keller, who lived in a house adjacent to the school, owned the dog and routinely chained the dog to a tree.

Robinson testified in her deposition that she had seen Keller's dog chained to a large tree close to the school property on several occasions. On September 3, 2009, nine days before the dog attacked and bit her, Kenneth Nelson, the school principal, signed the receipt for a letter sent to him by certified mail from two persons. The letter stated that the neighbor's dog had attacked them on or near the school property. Nelson did not contact the police or animal control officials after receipt of the September 3, 2009 letter. He notified the local animal control authority on at least two other occasions to report the presence of unleashed and unattended dogs on school property. On each occasion, animal control responded within hours of his call. Additionally, Nelson was not on the premises at any time on Saturday, September 12, 2009; and no school functions or authorized non-school functions occurred on school property that day.

II.

Robinson filed a complaint seeking damages for the injuries she received from the dog against defendant Frank Vivirito, the owner of the house where the owner of the dog lived, and an amended complaint against Keller, the owner of the dog, and the Buena Board.¹ In a second amended complaint, Robinson added the school principal as a defendant. In her complaint against the Buena Board and the school principal (the school defendants), Robinson contended that the school principal was responsible for the safety of the school premises, that he had been notified of the presence of a dangerous dog on or near school property, and that the dog posed a threat of harm to those on or near school property. Robinson alleged that the school principal failed to exercise his supervisory responsibilities of the property and this failure caused or contributed to the injuries sustained by her. Robinson maintained that the Buena Board was vicariously liable for the negligence of the school principal. Robinson also alleged that the known presence of a vicious dog on school premises created a dangerous condition of school property.

The school defendants filed a motion for summary judgment arguing that the presence of a wayward dog on its premises did not create a dangerous condition of school property. They also argued that the school principal owed no duty of care to Robinson for events that occurred on school property after hours and from an animal they did not own or control. The trial judge granted the motion.

In a written opinion, the trial judge held that N.J.S.A. 59:4–2, which permits liability of a public entity for a dangerous condition of public property, does not extend to injuries that occur due to activities conducted on the property. Stated differently, a dangerous condition refers only to the physical condition or features of the property. The trial judge also determined that the school principal owed no duty of care to Robinson because the principal did not own, control, or harbor the dog that attacked her. The judge distinguished the ruling in Benjamin v. Corcoran, 268 N.J.Super. 517, 634 A.2d 108 (App.Div.1993), noting that the dangerous dog in that case which bit a young girl on the grounds of a public facility was owned by the resident assistant superintendent of the facility. The Appellate Division held in Benjamin that knowing the dog had bitten others, the public official had a duty to remove or control the dog and prevent injuries caused by the dog to those who lawfully entered the grounds of the public facility.

The Appellate Division reversed the order granting summary judgment to the school defendants. The panel held that the school principal had a duty “to address a known danger from the dog to people who come onto the property.” The appellate court reasoned that the school principal would have had an obligation to address the presence of a stray dog on the school premises during the school day. Therefore, the panel declared it could discern “no basis to exclude, as a matter of law, liability to people who come onto the school's property at other times.” The panel concluded that a jury could reasonably find that the school principal “had a duty to contact the police or the animal control officer to request that the dog be removed because of its propensity to escape and attack people on or near the school property, and that his failure to do so was a proximate cause of [plaintiff's] injury.”

This Court granted the school defendants' petition for certification. 214 N.J. 117, 67 A.3d 1191 (2013).

III.

A.

The school defendants argue that the school principal owed no duty to protect passersby and people using school grounds as a short-cut during non-school hours from the actions of a stray aggressive dog or any other stray animal. They distinguish Benjamin on its facts. They emphasize that the school principal did not own or control the dog that bit Robinson. The school principal had called the animal control officer when he learned of a stray dog on school premises before the incident involving Robinson. The school defendants emphasize that the school principal had no legal authority to control the dog that bit her. Ultimately, they urge that permitting Robinson to pursue a negligence claim based on the actions or lack of action of the school principal “would be an assault on the Tort Claims Act and on the traditional principles of negligence.”

B.

Robinson urges the Court to hold that the public entity should be vicariously liable for the acts or omissions of its employee, the school principal. She argues that the school principal was in charge of the school buildings and grounds and responsible for the safety of those in the building and on the grounds. Robinson contends that the school principal also had notice of the aggressive behavior of the dog before the attack on Robinson but did nothing to protect her or the safety of those using school grounds. She argues that the facts of this case are directly analogous to prior Appellate Division precedent, which determined that a jury could find a public entity liable for the failure of owners of an aggressive dog to take measures to protect residents of a public facility, their visitors, and users of the grounds from the actions of a dangerous dog. Robinson concedes, as she did in her brief in the Appellate Division, that a dog on public property does not constitute a dangerous condition of public property, and that she is not entitled to relief pursuant to N.J.S.A. 59:4–2.

IV.

The TCA reestablished the immunity of public entities, while also creating a scheme to impose liability on public entities to ameliorate “the harsh results of the [sovereign immunity] doctrine.” Beauchamp v. Amedio, 164 N.J. 111, 115, 751 A.2d 1047 (2000); N.J.S.A. 59:1–2. Therefore, while “public entity immunity is the theme that permeates the statute, [the TCA] also details certain acts and omissions for which a...