The recent matter of Ahrens v. Rogowski,2015 N.J. Super Unpub. LEXIS 308 (App. Div., February 20, 2015) provides an interesting analysis of the impact of classification of the legal status of a Plaintiff in a dog bite case.
In this matter, Plaintiff Ahrens visited a commercial establishment across the street from the Defendant homeowner’s property. Plaintiff then tried to call her husband to say that she was delayed, but her cell phone was not working. She accordingly decided to ask the people who lived across the street- Defendant- if she could use their phone.
As Plaintiff approached the property, four or five adults were reportedly outside on the side deck of the home. Plaintiff stated that she did not observe a dog, a “beware of a dog” sign which was found to have been on the property, or anything else indicating that a dog was on the property. Plaintiff reportedly called out “excuse me” a few times to the people on the property, but admitted that none of the people initially acknowledged the same. Plaintiff then left the sidewalk and walked a few feet across the lawn in the direction of the side porch.
At this time, Defendant’s dog- which was attached to a line which permitted the dog access to the lawn area but not the sidewalk- ran toward the Plaintiff, biting and clawing her left thigh. As this was happening, the adults, upon becoming aware of Plaintiff’s presence, began yelling at her, questioning why she did not heed the “beware of dog” sign.
Plaintiff said that when she was able to leave the property and go to another adjacent commercial store, somebody there reportedly stated that the dog was “vicious.” However, Plaintiff could provide no substantiation of that proposition.
Plaintiff made several significant admissions in the context of this Motion for Summary Judgment by the Defendant. For example, she admitted she did not have permission to enter Defendant’s property, and further admitted that the adults on the premises did not appear to hear her. She also admitted that she did not enter the property because she was in any danger, and while she did not see the “beware of dog” sign, she acknowledged that it was present.
In affirming the trial court’s granting of the Defendant homeowner’s Motion for Summary Judgment, the Appellate Division referenced the dog bite statute, N.J.S.A. 4:19-16, which reads in pertinent part:
the owner of any dog which shall bite a person while such a person is on or in a public place, or lawfully on or in a private place including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.
For the purposes of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of United States, or when he is on such property upon the invitation, express or implied, of the owner thereof.
In DeRobertis v. Randazzo, 94 N.J. 144, 151 (1983), our Supreme Court indicated that “those lawfully on the property include both invitees and licensees (including social guests), but not trespassers.”
In this appeal, Plaintiff argued the trial court erred in holding that Plaintiff was a trespasser, which she asserted was a factual determination for the jury. However, for the reasons expressed above, the Appellate Division distinguished several other cases to find that, for the purposes of the dog bite statute, Plaintiff was in fact a trespasser, and therefore unable to recover under N.J.S.A. 4:19-16.
The Court also engaged in an analysis of the matter under the traditional common law negligence approach, as set forth in Hopkins v. Fox & Lazo, Realtors 132 N.J. 426 (1993). The Appellate Division indicated that in this matter Plaintiff was “easily categorized as a trespasser, and thus application of the traditional common law categories is appropriate.” The duty that a landowner owes to a trespasser is slight, essentially simply to refrain from willfully and wantonly causing them injury. Veja Muniz v. Piedilato 154 N.J. 496 501 1998. The landowner “has a duty to warn trespassers only of artificial conditions on the property that pose or risk of death or serious bodily harm to the trespasser.” Hopkins, supra., 132 N.J. at 434.
Accordingly, the Ahrens decision, while presently unpublished, does emphasize the importance of the classification of the status of Plaintiffs in litigation in general and dog bite claims in particular. Defense counsel should accordingly focus on those issues extensively in discovery.