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Owner of Building May Have Vicarious Liability for Customer’s Injuries from Dog Bite

By on October 2, 2020 in Liability with 0 Comments

Plaintiff Alisette Russo “Russo” was a customer at a jewelry store (Creations by Stefano, Inc.) when she was bitten by the dog owned by defendant Stefano Simone (“Simone”). The building was owned by defendant Platinum Realty Group, LLC (“Realty”). The issue in Russo v. Creations by Stefano, 2020 N.J. Unpub. LEXIS 1615 (App. Div. Aug. 20, 2020) was whether “strict liability imposed by law against a dog owner can form the basis for imposing vicarious liability on the dog owner’s employer.”

Russo was a repeat customer of the Creations jewelry store. When she was in the store, she approached Simone’s Rottweiler “Contessa,” who she had petted on previous occasions. In fact, store employees gave the customers treats to give to the dog. Russo extended her right hand and Contessa bit her.

Simone owned the dog but the dog was apparently licensed to the business address. The dog remained at the business location when the store was closed, according to one employee’s testimony. Simone was the sole shareholder of Creations, which operated the jewelry store.

Realty owned, operated, and controlled the building and Simone was the managing member of Realty. Although Realty contended that Creations was a “tenant in possession,” it produced no lease or other evidence to prove that a landlord-tenant relationship existed between the two entities       

Russo sued the defendants based upon the Dog Bite Statute, N.J.S.A. 4:19-16. She also sued the defendants based upon common law claims, asserting that Simone and Creations knew or should have known that the dog had vicious propensities and they negligently failed to protect her from danger.

After discovery was conducted, Russo filed a motion for partial summary judgment, claiming that Simone was strictly liable under the Dog Bite Statute as the owner and that Realty was vicariously liable because Simone was the managing member, he was on the premises in that role, as well as in his individual capacity and as Creation’s sole shareholder. She ended up abandoning her common law claim by conceding that Contessa had no vicious propensities. The trial court agreed, finding that Simone, Creations, and Realty were all strictly liable for her injuries.

This appeal ensued to the Appellate Division. The Court noted that under the Dog Bite Statute, which is a strict liability statute, there are 3 elements that must be proven:

First, the defendant must be the owner of the dog. Second, the dog must have bitten the injured party. Finally, the bite must occur 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.

The question that the Appellate Division needed to decide was whether under the Dog Bite Statute, can a principal “be vicariously liable if an agent, acting in the scope of his or her authority, becomes strictly liable for a dog bite under the Statute.” The Court held that there was “no reason why vicarious liability should not apply under the Statute, inasmuch as vicarious liability has been applied to a dog bite claim under the common law.”

However, the Court found that there were issues of fact which precluded imposing liability on Realty (the building owner) on a summary judgment basis. There were disputed issues as to whether “Russo assumed or shared the obligation to provide for the safety of visitors to the property, and to provide for security of the property itself.” The fact that Contessa was left at the property would permit a fact inference that the dog was present to protect Realty’s property. The Appellate Division noted that a jury could decide that Simone, acting as managing member, owned and controlled the dog to serve Realty’s interests, thereby justifying imposing vicarious liability upon Realty.

Thus, the Court reversed the summary judgment imposing liability on Realty, leaving that up to a jury to decide these disputed facts and determine if Realty would be held vicariously liable for the plaintiff’s injuries from Contessa’s bite.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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