Rodriguez v. Cordasco

• Decision Date: 06 February 1995
• Citation: 279 N.J.Super. 396,652 A.2d 1250
• Parties: Andre RODRIGUEZ, Plaintiff-Appellant, v. Rose CORDASCO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 396

279 N.J.Super. 396

652 A.2d 1250

Andre RODRIGUEZ, Plaintiff-Appellant, v. Rose CORDASCO, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted Jan. 3, 1995.

Decided Feb. 6, 1995.

Ginarte, O'Dwyer, Winograd & Laracuente, Newark, for appellant (Richard M. Winograd, on the brief).

Scanlon & Akin, New Providence, for respondent Rose Cordasco (Maria M. Romani, of counsel and on the brief).

Before Judges PETRELLA, HAVEY and CUFF.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

The issue in this appeal is whether a person who feeds stray dogs on her property owes a duty to the public to protect against the danger those animals may present to passersby on an abutting sidewalk. The Law Division held there was no such duty in the case presented and granted summary judgment in favor of defendant Rose Cordasco. We agree and affirm.

On appeal, plaintiff Andre Rodriguez argues that the motion judge erred in granting summary judgment ¹ because there were material issues of fact in dispute. In addition, he argues that the judge erred in concluding that as a matter of law a defendant-homeowner who makes a practice of attracting stray dogs by repeatedly feeding them and allowing them access to her property, is not liable to passersby who are injured by the action of the animals. Finally, Rodriguez argues that Cordasco, as the owner and occupier of property abutting a negligently maintained sidewalk, is liable to him for injuries sustained as a result of a fall on that sidewalk while attempting to run from the dogs.

The underlying facts may be briefly stated. At about 4:00 p.m. on March 1, 1993, Rodriguez was walking on the sidewalk in front of Cordasco's one-family, two-story residence on Seventh Avenue in Newark. He was on his way to a bus stop and claims that as he passed Cordasco's residence two or three dogs came from Cordasco's unfenced yard and began to chase him. Rodriguez quickened his pace to avoid the dogs, but tripped and fell on a raised portion of the sidewalk abutting Cordasco's residence, injuring his right knee.

Rodriguez does not dispute that Cordasco did not own the dogs, but asserts that she was a "keeper" of the dogs and should bear responsibility for injuries he sustained when he fell. ²

In his deposition Rodriguez testified that he had been walking past the Cordasco house daily for about eight months and that the stray dogs which chased him "always" eat in the back of Cordasco's house. However, he did not know what they were eating nor did he know if it was Cordasco who was feeding them. After the motion judge granted summary judgment in favor of Cordasco, Rodriguez made a motion for reconsideration and indicated that he could obtain a statement from a witness who would corroborate his assertion that Cordasco left food out for stray dogs on several occasions. The judge, in denying the motion for reconsideration, held that even if Cordasco fed the stray dogs, she did not owe a duty of care to the public to protect against the actions of those dogs.

Cordasco acknowledged in her deposition that stray dogs occasionally came onto her property and would often approach her as she tried to enter her car. She indicated that she would sometimes throw them biscuits to "bribe" them away from the car, but she asserted that she never left food out for them. She also stated that she called a Newark agency on several occasions trying to rid the neighborhood of the stray dogs.

In granting summary judgment in favor of Cordasco the motion judge appropriately gave Rodriguez the benefit of all of the reasonable inferences. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954); R. 4:46-2. For the purpose of this appeal we also resolve all factual disputes in his favor. Antheunisse v. Tiffany & Co., 229 N.J.Super. 399, 402, 551 A.2d 1006 (App.Div.1988), certif. denied, 115 N.J. 59, 556 A.2d 1206 (1989).

New Jersey's "dog bite" statute ( N.J.S.A. 4:19-16) imposes liability on dog owners in certain instances. That statute is inapplicable here and affords no basis for Rodriguez's claim. There was no "bite" inflicted on Rodriguez and the dogs apparently did not make contact with or physically touch him in any fashion. Hayes v. Mongiovi, 121 N.J.Super. 272, 275, 296 A.2d 567 (Cty.Ct.1972), aff'd o.b., 125 N.J.Super. 413, 311 A.2d 207 (App.Div.1973).

A common law cause of action in strict liability against Cordasco is likewise unavailable here. To establish such liability Rodriguez would have to show that Cordasco owned the dog (or perhaps was its "keeper") and had knowledge of its mischievous or vicious propensities. Jannuzzelli v. Wilkens, 158 N.J.Super. 36, 41, 385 A.2d 322 (App.Div.1978); Prosser and Keeton, The Law of Torts, § 76, at 542 (5th ed. 1984). The record does not indicate any basis for holding Cordasco strictly liable due to any knowledge of mischievous propensities of the stray dogs. ³ Hence, Rodriguez is left with a potential claim based on negligence.

An owner or keeper of an animal may be liable for negligence in controlling it. DeRobertis v. Randazzo, 94 N.J. 144, 156, 462 A.2d 1260 (1983); 3A C.J.S. Animals § 188, at 690 ("A dog's owner or keeper who has been negligent with respect to its keeping or control may be liable for injuries proximately resulting therefrom irrespective of whether there was a known vicious propensity...."); 4 Am.Jur.2d Animals § 89, at 337 ("The owner or keeper of a domestic animal is charged with knowledge of the natural propensities of animals of the particular class to which this animal belongs, and, if these propensities are of the kind that might cause injury he must exercise the care necessary to prevent such injuries as may be anticipated."). Rodriguez must therefore establish that Cordasco was either the owner of the stray dog or dogs or responsible for their care. Rodriguez must also establish that Cordasco was negligent in failing to control the stray dogs that caused the injury. DeRobertis v. Randazzo, supra, 94 N.J. at 156, 462 A.2d 1260. Rodriguez has made no showing that Cordasco was an "owner" or even a "keeper" of the offending stray dogs, and, therefore, his negligence cause of action fails. Cf. Mascola v. Mascola, 168 N.J.Super. 122, 126-127, 401 A.2d 1114 (App.Div.1979) ("one not an owner of a vicious dog may be liable as a keeper, if he is in fact such and has knowledge of its vicious disposition").

In Linebaugh v. Hyndman, 213 N.J.Super. 117, 516 A.2d 638 (App.Div.1986), aff'd o.b., 106 N.J. 556, 524 A.2d 1255 (1987), a "dog bite" case, we held that there was sufficient basis for a negligence action against a landlord where the landlord was aware that a dog with vicious propensities was kept on the property. Linebaugh based liability on the maintenance of an "artificial [dangerous] condition on the property" which resulted from the landlord's failure to protect the tenants and their invitees from the known danger of a vicious animal. Id., 213 N.J.Super. at 121, 516 A.2d 638. This case is distinguishable from Linebaugh because the incident occurred off Cordasco's property and there was no indication that she had knowledge of any vicious propensities of the stray dog or dogs. See also Steinberg v. Petta, 114 Ill.2d 496, 103 Ill.Dec. 725, 501 N.E.2d 1263 (1986) (involved the liability of a landlord under a local statute; an action at common law, unlike that under the statute, required proof that the dog was vicious and that defendant had knowledge thereof).

No New Jersey case supports plaintiff's claim of liability. Thus, Rodriguez relies on authorities from other jurisdictions. These cases, however, are inapposite. For example, Verrett v. Silver, 309 Minn. 275, 244 N.W.2d 147 (1976), involved a five-year-old boy who was bitten by a dog which ran from defendant's yard and returned there after the incident. It was undisputed that the dog was staying at defendant's home. Id., 244 N.W.2d at 148. Plaintiff successfully established defendant's liability under that state's "dog bite" statute which provided:

If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be in any urban area, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term "owner" includes any person harboring or keeping a dog....

[Id. n. 1 (emphasis supplied).]

In interpreting the statute, the Verrett court stated:

Harboring or keeping a dog means something more than a meal of mercy to a stray dog or the casual presence of a dog on someone's premises. Harboring means to afford lodging, to shelter or to give refuge to a dog. Keeping a dog, as used in the statute before us, implies more than the mere harboring of the dog for a limited purpose or time. One becomes the keeper of a dog only when he either with or without the owner's permission undertakes to manage, control, or care for it as dog owners in general are accustomed to do.

[Id. at 149 (emphasis supplied).]

Christie v. Anchorage Yacht Haven, Inc., 287 So.2d 359 (Fla.Ct.App.1973), and Hampton v. Hammons, 743 P.2d 1053 (Okl.1987), are equally inapplicable and unpersuasive. As in Verrett, supra, local "dog bite" statutes were implicated. Christie noted that to define the statutory term "owner" as "the possessor, keeper, or custodian of the animal," was "not without supporting authority." The Christie court, however, declined to decide the issue because in that case it was clear that none of the...