Opinion
DOCKET NO. A-4487-11T1
02-28-2013
CHARLOTTE ROBINSON, Plaintiff-Appellant, v. FRANK VIVIRITO, FRANKIE KELLER, BUENA REGIONAL SCHOOL DISTRICT BOARD OF EDUCATION, and KENNETH S. NELSON, Defendants-Respondents.
Melville D. Lide argued the cause for appellant (Radano & Lide, attorneys; Evan J. Lide, on the briefs). Casey R. Langel argued the cause for Buena Regional School District Board of Education and Kenneth S. Nelson (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Mr. Langel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1559-10.
Melville D. Lide argued the cause for appellant (Radano & Lide, attorneys; Evan J. Lide, on the briefs).
Casey R. Langel argued the cause for Buena Regional School District Board of Education and Kenneth S. Nelson (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Mr. Langel, on the brief). PER CURIAM
Plaintiff Estate of Charlotte Robinson appeals the Law Division's April 13, 2012 order granting summary judgment in favor of defendants Buena Regional School District Board of Education (Board) and defendant Kenneth S. Nelson, one of its employees. We reverse.
Robinson died from unrelated causes prior to entry of summary judgment. One of her children was appointed administrator of her estate and continued the action. We refer to both the individual and her estate as Robinson for the sake of convenience.
I.
We discern the following facts and procedural history from the record on appeal.
On September 12, 2009, a Saturday, Robinson was walking through the property of the Dr. J.P. Cleary Middle School, which is operated by the Board. She was on her way to meet a friend for dinner. The school was closed for the weekend.
While on the school's property, Robinson was attacked by a dog belonging to defendant Frankie Keller, who lived in a housing complex owned by defendant Frank Vivirito. Keller's residence was adjacent to the school. According to the police report, Keller's dog broke its leash, ran towards Robinson, and attacked her. Robinson had seen the dog chained to a tree or porch on prior occasions, but did not see it before the attack that day.
Robinson was taken to a hospital by a friend. She was treated for several lacerations with permanent scarring on her bilateral lower extremities and lateral rib area. A torn meniscus on her left knee required surgery.
Robinson's initial complaint against Vivirito was filed on April 12, 2010. It was amended several times thereafter to add Keller, the Board, and Nelson as additional defendants. Nelson was the principal of the school. Robinson alleged that, prior to the date she was bitten, Nelson had received notice that Keller's dog had broken loose, come onto the school's property, and bitten two other people. She asserted that Nelson's failure to take proper remedial action was a proximate cause of her injury, and that the Board was vicariously liable for Nelson's acts and omissions.
On September 2, 2009, Diane Beckett-Croshaw and Dale Moore sent a letter to Nelson by certified mail, advising him that they had been attacked by Keller's dog. They explained that, while they were walking on the sidewalk in front of the school, the dog broke free of its restraints, ran up to them, and repeatedly bit them. They expressed concern that the dog posed a threat to the safety of students, staff, and visitors at the school.
Although Nelson acknowledged that he signed the certifiedmail delivery receipt, dated September 3, he testified at his deposition that neither he nor his confidential secretary had seen the letter. Nelson acknowledged that he was aware that dogs had wandered onto the school's property occasionally in the past, and that when a dog came onto school grounds, he would call the animal control officer, who would remove the dog within a couple of hours.
Following completion of discovery, the Board and Nelson moved for summary judgment. Robinson opposed the motion, which was argued on April 13, 2012. In a written opinion filed later that day, the motion judge granted the motion. An implementing order was filed with the opinion. This appeal followed.
II.
On appeal, Robinson argues that the motion judge erred in determining that Nelson owed no duty to third parties whose presence on the school's property was unrelated to the school's activities. She also argues that the judge misapplied the immunity contained in N.J.S.A. 59:4-2, arguing that a dangerous animal cannot constitute a "dangerous condition" of property.
It is well-established that our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Consequently, we review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c). Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-40 (1995); Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). In addressing a motion for summary judgment, a judge must "consider 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." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c).
Because we are reviewing a summary judgment order, we must assume for purposes of our analysis that Nelson was aware of the contents of the certified letter and that he knew that Keller's dog had a propensity to get loose and had previously come onto the school's property, where it attacked two people in early August 2009. The legal issue before us is whether he had a duty to take remedial action to protect persons such as Robinson, who were on the school's property for purposes unrelated to school activities when the school was closed.
Robinson relies primarily on our decision in Benjamin v. Corcoran, 268 N.J. Super. 517 (App. Div. 1993). In that case, a child who was sledding on the property of the New Jersey Firemen's Home (Home) was bitten by a dog belonging to two employees of the Home. Id. at 520. The owners of the dog were a married couple who lived on the premises. James Corcoran was the assistant superintendent, and Jeanette Corcoran was the director of nursing. Their dog had previously bitten two people, one on a sidewalk adjacent to the premises and one away from the premises. Ibid. The trial judge dismissed the suit on summary judgment, finding immunity under the Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. Id. at 521.
Although we rejected the plaintiff's argument that the Act was inapplicable to the Home, we reversed because we found that the Act did not preclude liability. Id. at 525-27. We determined that a jury could find against both Corcorans, and that the Home would be vicariously liable for their negligence pursuant to N.J.S.A. 59:2-2. Id. at 526-29.
N.J.S.A. 59:2-2 provides as follows:
a. A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.
b. A public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.
With respect to James, we held that "[a] jury could find on the present record that it was the responsibility of the superintendent and the assistant superintendent to protect against known dangers, not only for the people living there, but also for others known to come upon the property." Id. at 526. With respect to Jeanette, we concluded that "a jury might reasonably conclude that it was part of her overall responsibility to ensure that the grounds were safe from dangerous conditions that she knew about and could have prevented, particularly in view of the fact that she lived in a home on the premises, provided to her by the [Home]." Id. at 527. We summarized our conclusions as follows:
A jury could find that the Corcorans were required to take action to remove the dog since they knew it had vicious propensities and constituted a threat to people whom they had an obligation to protect. Because this obligation derived from their employment, their negligence would be imputable to their employer, [the Home].
[Ibid. (citing N.J.S.A. 59:2-2).]
In response to the Home's argument that ownership of the dog was not part of the Corcorans' official duties, we observed that
[t]he appropriate question is not whether it was in the scope of their employment to own a dog, but rather, whether it was within the scope of the Corcorans' employment to keep the premises safe. N.J.S.A. 59:2-2. Depending on the proofs adduced at trial, a jury could have found that either or both of them had a duty within the scope of their employment to keep the premises safe by not harboring a dog that to their knowledge had bitten persons in the past.Consequently, we reversed and remanded for trial.
[Id. at 528.]
Defendants argue that Benjamin is inapplicable to the facts of this case because Nelson, unlike the Corcorans, was not the owner of the dog and did not live on the property. While true, we do not read Benjamin that narrowly. A central component of our holding in Benjamin was the duty "to protect against known dangers," which was owed to "others known to come upon the property," such as the child who was sledding there. Id. at 526. While the fact that the Corcorans owned the dog made it easier for them to take remedial action, it was not the basis of their duty of care.
We agree with Robinson that Cogsville v. Trenton, 159 N.J. Super. 71 (App. Div. 1978), is inapposite because that case turned on the applicability of N.J.S.A. 59:4-2, which applies to dangerous conditions of the public property itself. Robinson has not premised liability on a dangerous condition of the school's property, but rather on Nelson's failure to take action to address a known danger from the dog to people who come onto the property. In Benjamin, supra, 268 N.J. Super. at 527-28, we distinguished Cogsville, supra, 159 N.J. Super. at 72-73, in which the liability of the City was premised on its ownership of public housing at which a tenant kept a vicious dog. Like the facts in Benjamin, the facts of this case are significantly different from those of Cogsville.
Had the dog at issue attacked a student during the school day, we would find that Nelson had an obligation to address such a known danger to the students entrusted to his care. We see no basis to exclude, as a matter of law, liability to people who come onto the school's property at other times. A jury could reasonably find that Nelson 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's property, and that his failure to do so was a proximate cause of Robinson's injury.
We note that the certified letter alleged that the dog was not licensed or vaccinated, had broken free prior to the incident involving the two authors, and was known by an animal control officer to have a "bad attitude."
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Whether Nelson was, in fact, negligent in failing to take remedial action, of course, is an issue for the jury. We hold only that the motion judge should not have dismissed the case on summary judgment.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.S.A. 59:3-1(a) provides that "[e]xcept as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person."