In Terhune v. Guerriero, No. A-0974-10 (App. Div. Aug. 3, 2011), the plaintiff was working for a fuel company.  He entered the defendant's property to deliver oil.  Once there, he heard the defendant's brown Labrador Retriever bark.  (The defendant permitted his dog to roam his yard without a leash.)  He saw the dog lift its head and begin running toward him.  The plaintiff "panicked" and started to run toward the gate.  As he did so he hurt his knee and fell to the ground.

The plaintiff called his employer and a co-worker came to assist him and complete the delivery.  According to the plaintiff, the dog went after the co-worker but did not bite him, but the co-worker testified that he did not see the dog outside the house and that it was a "nice dog."  The plaintiff sued the defendant, alleging that he was negligent because he allowed a "defective condition" on his property.  Further, the plaintiff claimed that he sustained severe injuries because of the defendant's negligence.  The defendant moved for summary judgment, arguing that the plaintiff did not prove that he was negligent.  Moreover, the defendant argued that the plaintiff had failed to prove that his dog was involved in the incident or that his dog had a propensity to act in a dangerous manner.

The trial court granted the defendant's motion as it determined that there was inadequate evidence to support the plaintiff's negligence claim.  In doing so, the court noted that there was no evidence that the dog chased the plaintiff in a vicious or dangerous manner.  On appeal, the plaintiff made four arguments:  1) the defendant had a duty to control his dog and there was a disputed factual issue about whether the defendant was negligent in that regard; 2) the trial court erred because it did not classify him as a business invitee entitled to the highest degree of care; 3) the defendant's dog was a dangerous instrumentality; and 4) the court improperly usurped the jury's role of resolving facts.  The Appellate Division rejected each argument and affirmed.

The Appellate Division explained that when a dog injures a person, even if it does not bite the person, the injured person might have a claim against the owner of the dog.  In that regard, the owner is subject to absolute liability if the plaintiff can prove that the dog was vicious and that the owner knew or should have known of the dog's abnormally dangerous propensities.  However, if the plaintiff cannot prove that the dog is vicious, then the owner can only be liable if the plaintiff proves that the owner negligently failed to prevent the injury.

Turning to the facts, the court noted that the defendant's Labrador Retriever did not bite the plaintiff but instead merely barked and ran toward him.  Based on that, the Appellate Division ruled that plaintiff presented no evidence that the dog acted viciously or in an abnormally dangerous fashion during the incident.  Additionally, the Appellate Division stressed that the plaintiff offered no evidence that the dog had previously attacked anyone or acted viciously.  The Appellate Division also determined that even though the dog was unleashed, there was no evidence to show that it posed any type of danger to the plaintiff.  In rejecting the plaintiff's other arguments, the Appellate Division emphasized that there were no genuine disputed factual issues and that the evidence was simply insufficient to support a negligence claim.