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Plaintiff Unable to Pursue Injury Claim Incurred When Knocked Over By Defendants’ Dog in Dog Park

By on July 10, 2020 in Negligence with 0 Comments

Plaintiff, Janet Freed, took her dog, a female golden doodle, into the Off-Leash Dog Area of Thompson Park, a Monmouth County Park. The dog owned by the defendants Linda and Frank Bastry, a male golden retriever, ran into plaintiff while chasing her dog and caused her injury.  In Freed v. Bastry, 2020 N.J. Super. Unpub. LEXIS 1279 (App. Div. June 29, 2020), plaintiff sued the defendants for violating the dog park rules in bringing an unneutered male to the dog park and letting him run free.

The Off-Leash dog area had guidelines for use that were posted near its entrance.  One guideline prohibited dogs with a history of dangerous or aggressive behavior and puppies under four months old from using the area.  The guidelines also stated that dogs over six months old must be spayed or neutered.  On the day of the incident, the defendants took their dog to the dog park, who was 7½ months old, and had not been spayed or neutered. 

The plaintiff and defendants were standing in the dog area about four feet apart, talking about golden retrievers, as the two dogs began playing and chasing each other.  Plaintiff admitted in her deposition that she saw no reason to be concerned about either dog and never called her dog away from defendants’ dog.  At one point, defendants’ dog was chasing plaintiff’s dog, which ran between plaintiff and defendants and ran into plaintiff at full speed, knocking her to the ground.  As a result, she suffered a tibial plateau fracture of her right knee and underwent a series of surgeries. 

Plaintiff obtained an expert report, purportedly an expert on canine behavior.  He noted that the defendants’ dog was more than 6 months old, not neutered and had no obedience training as of the date of the incident.  He opined that if the defendants had properly neutered their dog prior to letting him run free, the dog would have been less aggressive and, therefore, less likely to run into the plaintiff’s leg. 

At the trial court level, the defendants filed for a summary judgment, “contending that the park guidelines did not create a duty owed by dog owners using the area to others in the Off-Leash dog area.”  They contended that bringing their unneutered dog to the area breached no duty.  However, the plaintiff contended that the park guidelines “had the force of statutory law and were adopted by the County to curb aggressive canine behavior.”  The plaintiff argued that her liability expert opinion established that the aggressive behavior of the defendants’ dog caused the accident.

The trial court judge ruled that the posted guidelines did not create a duty owed by defendants to plaintiff and others using the area.  The judge did state that it would be fair to impose a duty on defendants to regulate their dog’s behavior in the Off-Leash area.  However, no one described defendants’ dog’s behavior as aggressive but, rather, he was simply running around a dog park. Hence, he granted summary judgment to the defendants.

 Upon appeal, the Appellate Division noted that the plaintiff’s complaint did not allege a cause of action under N.J.S.A. 4:19-16 which “imposes strict liability upon the owner of a dog for all damages caused if a dog bites another person.”  This statute does not cover the situation in which an individual suffered injuries from being knocked down by a dog but not being bitten.  In that case, there remains a common law cause of action in which scienter must be proved to establish liability when a dog injures a person but does not bite the person.  To pursue this cause of action, the owner may be liable if he or she knew or should have known of the dog’s “dangerous or mischievous propensities.” 

Here, the Appellate Division noted that the plaintiff has not asserted or demonstrated that the defendants had the required scienter regarding an aggressive or dangerous propensity of their dog.  Without scienter, the owner shall not be liable unless a plaintiff can prove the defendant’s negligence in failing to prevent the injury.

Plaintiff recognized that defendants owed no duty to her and other dog owners using the Off-Leash dog area to restrain their dog from doing precisely what was permitted, run around freely and play with other dogs.  The Court noted that plaintiff in her deposition, saw nothing about the behavior of defendants’ dog that suggested any need to intervene by defendants.  The Appellate Division stated that the plaintiff was attempting to have the Court oppose a duty on defendants to have neutered their dog before bringing him to the park based solely on the posted guidelines.

Although the plaintiffs never produced a resolution from the County adopting the guidelines as rules and regulations pursuant to a statute, the Court considered the argument that the guidelines were validly adopted regulations, which, if violated, could be enforced in the appropriate Municipal Court as an ordinance violation.  However, in this case, the plaintiff failed to produce any evidence regarding the reason for adopting the guidelines or if it was intended to benefit both the canine and human occupants of the Off-Leash dog area.  The Court noted that the guidelines may have been intended to curb aggressive behavior in older dogs, “thereby reducing the likelihood of sexual aggression towards other dogs, or the biting of dogs or humans.” 

Finally, the Appellate Division noted that the guidelines were not intended “to reduce the risk to those in the Off-Leash area posed by a dog otherwise exhibiting no overt aggressiveness or rambunctious behavior, such as jumping up on other dogs or humans in the area.”  The Court stated that even if the guidelines did reflect a duty imposed on dog owners to using the area to spay or neuter the dog that was more than six months old, it found that “the guidelines were not intended to reduce the risk posed by normal canine behavior, i.e., one dog running after another dog and, in the process, colliding with a human.”  Hence, the guidelines were not intended to reduce the risk of the particular hazard that caused the plaintiff’s injury.            

Accordingly, the Appellate Division upheld the summary judgment granted to the defendants, dismissing the case.


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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 30 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.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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