Opinion
DOCKET NO. A-0758-11T1
06-05-2012
MARISSA DOWN ROVENSKY & LEO ROVENSKY, her husband, Plaintiffs-Appellants, v. B&W LIMITED HOLDINGS, LLC, Defendant/Third-Party Plaintiff-Respondent, v. NORMA PEREZ, Third-Party Defendant.
Michael J. Monaghan, attorney for appellants. Law Offices of William E. Staehle, attorneys for respondent (Michael A. Mourtzanakis, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3423-10.
Michael J. Monaghan, attorney for appellants.
Law Offices of William E. Staehle, attorneys for respondent (Michael A. Mourtzanakis, on the brief). PER CURIAM
Plaintiffs Marissa Down Rovensky and Leo Rovensky commenced this litigation against their landlord, defendant third-party plaintiff B&W Limited Holdings, LLC, to recover damages they sustained when Marissa was attacked by a dog of another tenant, third-party defendant Norma Perez. Concluding that plaintiffs lacked evidence to establish a critical element of their claim — defendant's awareness of the dog's vicious propensities — the trial court granted defendant's motion for summary judgment. Because there is a genuine dispute of fact about what defendant knew, we reverse.
Perez defaulted and has not participated in this appeal.
Plaintiffs' lease prohibits pets, but Perez's tenancy predated theirs and was not subject to that prohibition. Perez's dog attacked Marissa in the basement of the apartment building. The electrical panel for the building is in the basement, and tenants routinely went there to restore the power in their apartments. Perez's apartment was also in the basement, and for several years, Philip Buzzerio, defendant's principal, made efforts to have her oust the dog. Although Buzzerio denied knowledge of anything indicative of the dog's viciousness, he did explain that he asked Perez to keep the dog in her apartment because repairmen had refused to work in the basement unless the dog was confined.
When plaintiffs moved into the building, about four months prior to the dog's attack on Marissa, defendant's maintenance man, David T. Killion, warned them that Perez kept "a vicious dog." Killion denies any recollection of saying that, and asserts he did not think of Perez's dog as "nasty" and was unaware of the dog exhibiting "violent tendencies" before this incident. In his view, there was no reason for him to tell his employer that Perez's dog posed a danger.
Although there was some dispute about whether Killion was an employee of defendant, the record permits a finding that he was, and defendant does not argue otherwise.
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There is no dispute that the injuries Marissa sustained required medical treatment.
On appeal, plaintiffs argue:
I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO EVIDENCE THAT DEFENDANT WAS AWARE THAT THE DOG WAS DANGEROUS.
II. THE SUPERINTEND[E]NT WAS AN AGENT, SERVANT OR EMPLOYEE OF DEFENDANT, B&W LIMITED HOLDINGS, [LLC], THUS IMPOSING VICARIOUS LIABILITY ON IT FOR THE NEGLIGENCE OF THE EMPLOYEE BY FAILING TO ADDRESS A DANGEROUS CONDITION WHEN IT HAD NOTICE OF THE SAME.
III. THE SUPERINTEND[E]NT WAS AN AGENT, SERVANT OR EMPLOYEE OF DEFENDANT[;] DEFENDANT, B&W LIMITED HOLDINGS, [LLC],
WAS ON NOTICE OF THE DANGEROUS CONDITION THROUGH THE ACTUAL KNOWLEDGE OF ITS AGENT.
IV. THE DEFENDANT/LANDLORD MAY BE LIABLE TO PLAINTIFF FOR A DOG BITE CONDUCTED BY A CO-TENANT'S DOG.
V. THE DEFENDANT/LANDLORD IS LIABLE TO PLAINTIFF FOR DAMAGES RESULTING FROM DEFENDANT'S BREACH OF CONTRACT.
When reviewing a grant of summary judgment, we employ the same standard as the trial court. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). If the evidential materials submitted on the motion, "viewed in the light most favorable to the non-moving party, are sufficient to permit a reasonable factfinder to resolve the alleged dispute in favor of the non-moving party," we must reverse. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Reversal is required unless the prevailing party is entitled to the judgment as a matter of law. R. 4:46-2(c).
Without question, defendant is entitled to judgment if plaintiff cannot show that defendant was aware of the danger posed by Perez's dog. Plaintiffs cannot rely on N.J.S.A. 4:19-6, which imposes absolute liability on a dog owner under certain circumstances, because Perez, not defendant, owns this dog. Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 71 (App. Div. 1999). Accordingly, proof of negligence is required.
"[A] landlord is obliged to exercise reasonable care in the maintenance of common facilities under his control to the end that the premises are reasonably safe and fit for the uses which he has invited others to make of them." Linebaugh v. Hyndman, 213 N.J. Super. 117, 120-21 (App. Div. 1986), aff'd o.b., 106 N.J. 556 (1987). That obligation extends to protection of tenants from an attack by another tenant's dog if a landlord is aware of a dog's vicious propensities. Ibid. In that circumstance, the landlord "is obliged to take reasonable measures to protect other tenants and their invitees from harm which a vicious dog is capable of inflicting," and the landlord is liable for injuries resulting from its failure to satisfy that obligation. Id. at 121. As with other dangerous conditions on the landlord's property, the law does not permit a landlord to "sit idly by." Id. at 121-22.
In this case, Killion's alleged warning and the complaints from the repairmen, viewed in the light most favorable to plaintiffs, are sufficient to raise a jury question on defendant's awareness of this dog's viciousness. Under principles of agency, Killion's alleged warning demonstrates knowledge material to his duties as defendant's employee that is imputable to defendant. Restatement (Third) of Agency § 5.03 (2006); id. at cmt. a. Pursuant to N.J.R.E. 803(b)(4), Killion's statement is admissible against defendant. Additionally, the question of whether Killion's warning and Buzzerio's efforts satisfied defendant's obligation to exercise reasonable care to keep the basement reasonably safe and fit for its tenants is for the jury. Accordingly, summary judgment was improperly entered in defendant's favor and must be reversed.
Because we are remanding, we address and reject plaintiffs' theory of contractual liability, which they assert for the first time on appeal. This court has held that a tenant bitten by another tenant's dog cannot recover damages for her injuries based on a breach of a lease prohibiting pets. Hyun Na Seo, supra, 320 N.J. Super. at 71-72.
Reversed and remanded for further proceedings.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION