Dog (Bite) Days Of Summer, Part II: Home Inspector Bitten While Inspecting Home Can’t Sue Realtor

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Beware of the dog (pd)Last week, I wrote about an exception to the strict liability normally imposed on dog owners under New Jersey's dog bite statute. (A short time before that, I wrote about yet another exception to strict liability under the dog bite statute, so the exceptions are obviously more interesting than the rule.) This post is about a different dog bite case, Ward v. Ochoa, with a similar result even though it was not decided under the dog bite statute. Ward involved a home inspector who was attacked and severely injured while performing a home inspection. She sued the dog owners (who eventually settled) along with the real estate agency and real estate agent who were selling the house. Like the dog groomer in last week's post, however, the home inspector's claims were dismissed.

In Ward, the underlying property was in foreclosure. The homeowners entered into a listing agreement with a real estate agency "with a view toward conducting a short sale of their foreclosed residential property." Before the bank that held the mortgage would agree to a short sale, however, it insisted on having the property inspected and appraised. The bank retained plaintiff to perform the inspection and appraisal. Plaintiff acknowledged that the home owner was her client, not the agency or agent. She also acknowledged that she did not ask anyone whether the property was owner occupied or whether there were dogs on the premises before the inspection. And she also acknowledged that the agent was not at the home during the inspection and that she did not request that he be there.

When plaintiff arrived at the property, the homeowner told her that two pitbulls were crated in the kitchen. After stepping into the house, plaintiff also noticed a third, uncaged pitbull in the bedroom, but it was "older" and "lethargic" and plaintiff characterized it as "very calm and docile." Plaintiff testified that she had "no reason to believe the pitbulls were dangerous because two were in crates and not making noise, and the other dog was sick." For her part, the homeowner testified that none of the pitbulls had any vicious propensities.

After inspecting the inside of the house, plaintiff and the homeowner went outside. When they did, plaintiff noticed that "the dogs were out of their crates on the deck and making noise." But still, she "had no reason to believe that any of the dogs would bite her."

Unfortunately, she was wrong. As plaintiff walked towards her car, "one of the pitbulls charged her" and "repeatedly attacked" her. She sued the homeowner along with the agency and the agent. She settled her claims with the homeowner, but not the claims against the agency and the agent. Both of them moved for summary judgment, arguing that they owed plaintiff no duty and, even if they did, their actions were not the proximate cause of plaintiff's injuries. The trial court granted both motions, holding that "no duty of care existed between the[ ]  parties."

Plaintiff appealed. On appeal, she argued that the agency and the agent owed her a duty under both common law — "because being attacked by the pitbull was an apparent and foreseeable risk" — and under an internal "policy" maintained by the agency, which, plaintiff alleged, required homeowners to secure their pets during inspections and open houses. The Appellate Division rejected both arguments and affirmed the trial court.

The Appellate Division noted that "[t]he duty owed by a premises owner . . . depends in general upon the application of well-established categories through which the status of the injured party is used to defined both duty and foreseeability." (Readers of this blog are, of course, familiar with this concept, having read posts about, among other things, the limited duty owed to trespassers, which only requires property owners to refrain from willfully and wantonly causing trespassers injury, and to warn them of artificial conditions on the property that pose a risk of death or serious bodily harm.) In a prior decision, Hopkins v. Fox & Lazo Realtors, the New Jersey Supreme Court held that a realtor could be liable for injuries suffered by a visitor "after losing her footing on a step during an open-house tour at the invitation of the broker." In that case, the Supreme Court held that the relationship between a broker and its customer "in the conduct of an open-house inspection of property is substantial." And, "implicit in this broker's invitation to customers[,] is some commensurate degree of responsibility for their safety while visiting the premises." That responsibility includes inspecting the home prior to the open house and giving "adequate warnings with respect to hazards readily discoverable through such an inspection."

But the Appellate Division found Hopkins "factually distinguishable" from Ward. It held that, unlike the client invited to tour the open house in Hopkins, plaintiff was not a "customer" of the agency or the agent, and neither the agency nor the agent had "an economic interest in [plaintiff] conducting the appraisal." Therefore, the agency and agent owed no duty to plaintiff because plaintiff "did not engage in any activity akin to any sort of relationship with [he agency] or [the agent], thus making Hopkins inapplicable here." In addition, the Appellate Division "declined to extend the holding in Hopkins to interpret that a dog constitutes a 'hazardous condition,'" as plaintiff had argued.

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