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.
As dog owners in New Jersey know, or should know, they are usually strictly liable for injuries suffered by anyone bitten by their dogs. New Jersey does not follow a "one free bite rule." Instead, under New Jersey law: "The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness."
There are, however, exceptions to this rule. For example, trespassers, who are obviously not "lawfully on or in a private place," cannot sue under the dog bite statute. A different exception was at play in Carpentiero v. Pocknett, where a dog groomer was bitten in the face by a dog while bathing the dog. In that case, defendant brought her dog to Katie's Pet Depot, where plaintiff, an independent contractor, worked as a part-time pet groomer. Plaintiff testified that had she been advised that the dog was old and had arthritis, she would have "muzzled the dog prior to grooming." But she was never told that, therefore she did not muzzle the dog, and, while she was bathing the dog, she was bitten in the face.
The facts and legal issues in sidewalk slip and fall cases sometimes read like they are pulled from law school final exams. In New Jersey, the baseline legal rule is clear — owners of commercial properties generally have a duty to maintain, in reasonably good condition, the sidewalks abutting their property, while owners of residential properties do not. But does a property owner have a duty to maintain its sidewalks when:
- the property is both residential and commercial, like a multi-family home where one unit is owner occupied and the others are rented (click here for more on that, but the short answer is that it depends on whether the property is primarily residential or primarily commercial ); or
- the plaintiff is a tenant and sues the landlord after slipping on a sidewalk outside the rental property (click here for more on that, but usually, yes); or
- the property is a commercial property, final judgment of foreclosure has been entered in favor of the lender, but no sheriff's sale has been scheduled (click here for more on that, but if the lender can be considered a mortgagee in possession, then yes); or
- the property is owned by a condominium or common-interest community (click here for more, but generally, yes if it's a private sidewalk within the condominium, no if it's a public sidewalk abutting the condominium); or
- the property is residential and the fall is caused by sweetgum spikey seed pods that fell from a tree on the defendant's property (click here, but, no).
And now one more can be added to the list thanks to the Appellate Division's decision is Ellis v. Hilton United Methodist Church, where the question presented was whether "sidewalk liability applies to an owner of a vacant church."
Although I have been a homeowner for a number of years and like to think that I am reasonably handy, my knowledge of plumbing is probably more informed by Mario Brothers than anything else. As the saying goes, I know just enough about the subject to be dangerous, so I generally try to avoid it. One of the parties in a recent Appellate Division decision, Sayat Nova, LLC v. Koestner, probably would have been better served heading this advice, as the Appellate Division held that no expert was needed to show that it acted negligently when it broke a pipe in a clogged tub that caused flooding in a restaurant several floors down.
In Sayat Nova, plaintiff operated a restaurant in defendant's building. After water from a third-floor apartment came flooding like a "waterfall" out of the ceiling and into the restaurant, plaintiff sued. The incident that precipitated the lawsuit was not the first time that the restaurant flooded. Four times in the previous three years, water entered the restaurant from the same general area in the ceiling. Each incident "involved more water and more damage than the previous incident." Each time plaintiff notified defendant, but never received a response. On one prior occasion, after receiving no response from defendant, plaintiff hired contractors at his own expense to repair the damage. Plaintiff was never compensated for these expenses or any losses caused by the prior incidents.
In the incident that led to the complaint, water came into plaintiff's restaurant from the ceiling above a different area of the restaurant than in prior incidents. Moments after plaintiff noticed the intrusion, the building's superintendent entered the restaurant with a man plaintiff did not know. Neither man was a licensed plumber. The superintendent told plaintiff: "By mistake we broke the pipe . . . We try to fix the fixture, and the guy by mistake break the pipe." He was apparently referring to a pipe in a third-floor apartment with a "hair-clogged tub." After the incident, defendant called a licensed plumber to fix the problem, but the damage caused plaintiff to have to close his restaurant several days for repairs.
Apparently some people missed this episode, as a recent decision from the Appellate Division, Panico v. Winner, demonstrates. [Note: In the second week of my first-year torts class, our professor told us that we were having a pop quiz. Being first-year law students, we all panicked. But then he shut off the lights and played this clip and we discussed all of the potential legal issues. It was a relief that it was not a quiz, but unfortunately this was the high point of my first-year torts class.]
In Panico, plaintiff was injured while jumping on a trampoline at a graduation party. The party was held at one of his classmate's homes and was attended by approximately twenty teenage guests. His classmate's mother originally planned to attend the party and serve as chaperone, but later learned that she would not be able to attend because of a work obligation. She told her daughter that she would have to cancel the party unless her daughter could convince the daughter's grandparents to attend. The daughter was able to do so. Her grandparents attended the party and, as a reward, became defendants in a lawsuit.
When is a sleeping dog a dangerous condition? This is the burning question that the Appellate Division answered in Parella v. Compeau.
In Parella, plaintiff attended Christmas dinner at a friend's house along with approximately 20 other guests. After the second course, she got up from her chair to put her dish in the kitchen sink and check on her child who was in an another room. To do so, she had to walk behind several seated guests. She did not have to ask anyone to move until she got to the last guest in the row. That guest moved her chair in and plaintiff made a move familiar to anyone who has been to a crowded holiday dinner — she "lifted [her] glass and plate, turned her back to the wall and shuffled her feet to pass behind [the] chair." "As she cleared the chair, plaintiff turned right to enter the hall toward the kitchen, and fell."
What caused her fall was a "tan, fairly large dog" that was "lying in the hallway, past the threshold of the dining room." The dog did not belong to defendants, the owners of the house and the hosts of the party, and was one of two dogs in the house for the party. When plaintiff fell, the wine glass she was holding broke, cutting her finger and severing a tendon. Plaintiff sued, alleging that defendants failed to warn of her of a dangerous condition — the dog — in their home. The trial court granted summary judgment to defendants and plaintiff appealed.
Turns out, a lot could go wrong. But, if it does, the neighbor whose tree limbs inspired you to climb the ladder, chainsaw in hand, probably won't be responsible, at least according to the holding in Corbisiero v. Schlatter.
In Corbisiero, plaintiff was a tenant in mixed-use property that was adjacent to defendant's property. In Spring 2013, some twigs and branches fell from tress located on defendant's property onto the property where plaintiff lived. Plaintiff asked defendant to cut down some of the branches that extended onto the property, which defendant did. A few months later, plaintiff asked defendant to cut down some more branches. Defendant told plaintiff that she would do it when she had time.
Apparently unwilling to wait for defendant to get to it, plaintiff spoke to her landlord about cutting the branches herself. Her landlord told her that "if [the tree limbs] grew over his property . . . we [can] cut them down." The landlord also told plaintiff that he would reimburse her for the cost of a chainsaw to be used to cut down the limbs. It is unclear if the landlord was suggesting that plaintiff both buy the chainsaw and cut the limbs down (as opposed to buying the chainsaw and having someone else do it), but plaintiff nonetheless chose to take matters into her own hands and do both.