“Does Your Dog Bite?” What, If Any, Duty Does A Dog Owner Owe To A Trespasser?

 by:  Peter J. Gallagher (@pjsgallagher)

I loved the Pink Panther movies, and one of the more memorable scenes in the series involved Inspector Clouseau trying to pet an innkeeper's dog (or, more accurately, a dog that he thought belonged to the innkeeper:



Other than the fact that both involve a dog bite, this clip does not have much to do with the recent Appellate Division opinion in Ahrens v. Rogowski, but it is a funny clip and worth sharing.

In Ahrens, the Appellate Division was presented with the less humorous case of a woman who was bitten by a dog when "trespassing" on the dog owner's property. I put "trespassing" in quotes because, when I think of trespassing, I think of someone sneaking onto property late at night with nefarious motives, and that is not what happened in Ahrens. Nonetheless, plaintiff was trespassing in the legal sense when she was bitten by the property owner's dog and the Appellate Division was faced with what duty, if any, the owner owed her as a result.


The basic facts in Ahrens were not disputed. Plaintiff went to a welding company to drop off chairs that she was going to have welded. When she got there, there was a note on the door saying the proprietor was out but would return shortly. Plaintiff tried to call her husband to tell her she would be late, but her cell phone was not working. Plaintiff saw four or five people on the side deck of the home across the street from the welder, so she decided to ask them if she could use their phone. She began walking up the walkway that led to the front door of the house and called out to the people on the deck a few times to try to get their attention. When they did not respond, she walked a few steps off of the walkway towards the deck. This is when things took a turn for the worse, as the court recounted: "Defendant's dog ran at plaintiff, biting and clawing her left thigh. Plaintiff fell as she was trying to escape." At this point, the people on the deck began yelling at plaintiff to get off of the property and berated her for ignoring the "Beware of Dog" sign.

(Defendant's version of events differs slightly from plaintiff's version. Defendant claimed that she saw plaintiff approaching the side yard and told her not to come farther because of the dog, but plaintiff ignored her warning. She indicated that the dog was on a leash attached to a running line that gave the dog access to the side yard, but not the walkway leading to the front door.)

Plaintiff sued under both New Jersey's Dog Bite Statute and under common-law negligence. To prevail on her claim under the Dog Bite Statute, plaintiff was required to prove: (1) that defendant owned the dog; (2) that the dog bit plaintiff; and (3) that the bite occurred while plaintiff was in a public place or lawfully in a private place. The New Jersey Supreme Court has interpreted "lawfully in a private place" to include "invitees and licensees (including social guests), but not trespassers."  Plaintiff argued that whether she was a trespasser or was "lawfully in a private place" was a question for the jury. The Appellate Division disagreed, holding that "[h]er presence on the side lawn was clearly without permission," therefore she was a trespasser and thus unable to sue under the Dog Bite Statute. In arriving at this conclusion, the Appellate Division distinguished plaintiff's situation from prior cases where plaintiffs were invited onto the property but may have exceeded the scope of their invitation, or where plaintiffs found themselves on private property because of an emergency. Neither of these situations was present in Ahrens, so there were no issues for the jury.

The court also rejected plaintiff's claim under common-law negligence. The court noted that "the traditional approach to determining the duty of a landowner in a negligence case [was] dependent on whether the plaintiff [was] an invitee, licensee, or trespasser." While New Jersey courts have stepped back from this traditional approach in favor of a more holistic one — analyzing the relationship of the parties, the nature of the risk, the opportunity and ability to exercise care, and the public interest — the Appellate Division noted that the traditional categories "continue to inform the duty analysis and are a shorthand in well established classes of cases for the duty analysis." In fact, the Appellate Division held that it is only when a case does not fit into these traditional categories that the more holistic analysis becomes necessary. Using this approach, the Appellate Division "easily" categorized plaintiff as a trespasser.

But, this easy categorization did not end the Appellate Division's analysis of plaintiff's negligence claim. A landowner owes trespassers a limited duty to refrain from willfully and wantonly causing them injury, and also has a duty to warn trespassers of "artificial conditions on the property that pose a risk of death or serious bodily harm to the trespasser." This could include an "abnormally dangerous dog," but the Appellate Division held that there was no competent evidence that the dog in Ahrens fit this description. Accordingly, plaintiff's negligence claim also failed.

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