On August 28, 2007, the eight-year old plaintiff was waiting to play with the daughter of defendants Walter Dressler, Jr. and Melissa Candido (“tenant defendants”). Casatelli v. Dressler, No. A-5769-09 (App. Div. June 27, 2011). The tenant defendants’ pit bull, which had been unchained in the fenced-in front yard of their rented home, knocked aside a wooden board that was covering a hole in the fence and escaped the yard. Without any warning or provocation, the pit bull then bit the plaintiff, who was familiar with the dog and had pet the dog on several prior occasions, on the arm. The plaintiff’s mother filed suit on his behalf against the tenant defendants, as well as the owners of the home and management company for the property (collectively, “landlord defendants”).
The tenant defendants rented the two-family home from the landlord defendants and had received their permission to have their dog there. Before the subject incident, the defendant landlords had not received any complaints that the pit bull was aggressive or had bit anyone. Following the incident, the landlord defendants served a notice to quit on the tenant defendants and they vacated the property.
The tenant defendants did not respond to the plaintiff’s complaint and a $35,000 default judgment was entered against them. After discovery ended, the landlord defendants moved to dismiss the plaintiff’s negligence claim, arguing that they did not know about the dog’s allegedly vicious tendencies and had no duty to protect the plaintiff from the dog. The trial court granted summary judgment to the landlord defendants and the Appellate Division affirmed.
In doing so, the Appellate Division first reviewed N.J.S.A. 4:19-16, which imposes strict liability upon owners for dog bites. However, the court pointed out that the statute did not apply to landlords and that at common law, a landlord was not responsible for injuries caused by a tenant’s dog. Nonetheless, a landlord has duty to protect a tenant or a tenant’s invitees from foreseeable dangers, such that a landlord’s duty could arise with respect to a tenant’s dog if it knew the dog was on the property and had “vicious propensities.”
The court explained that although the landlord defendants knew that the pit bull would be on the property, they were told it would be kept on a chain. Further, although they knew that the pit bull had escaped the yard in the past, the Appellate Division found that those facts alone did “not engraft the dog with ‘vicious propensities.’” Furthermore, the court concluded that “[n]othing in the pit bull’s behavior manifested the animal posed a danger. Prior to the incident involving plaintiff, nothing revealed the pit bull had a tendency to bite. Plaintiff himself had played with the dog on several past occasions without incident.”
The Appellate Division also pointed out that the plaintiff provided no expert evidence to support his claim that pit bulls – as a breed – are vicious dogs. Instead, the plaintiff asked the court to take judicial notice of such alleged viciousness. The court rejected that argument, stating that “[a] dog’s propensity to be vicious is neither a universally known fact nor a matter of undisputed general knowledge. Consequently, it is a subject provable by expert opinion. Plaintiff proffered no evidence from which a reasonable jury could establish the pit bull’s propensity for violence.” In conclusion, the Appellate Division expressed its agreement with the trial court’s determination “that the landlords had no prior notice suggesting the dog would cause harm, and [we] discern no basis to disturb his conclusion that the landlords breached no duty to plaintiff to prevent injury from the tenant’s dog.”