Canine or Pet Inflicted Injuries To Third Parties: Freed v. Bastry

Freed v. Bastry:

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

Plaintiff’s and defendant’s dogs were playing with one another one day at a park, when suddenly, defendant’s dog ran into plaintiff while chasing plaintiff’s dog at an off-leash dog area. Defendants’ seven and one-half month-old puppy had not been spayed or neutered as dog park guidelines required. Plaintiff’s dog ran between plaintiff and defendants, defendants’ dog followed, and knocked plaintiff down to the ground. As a result of the fall, plaintiff allegedly suffered a tibial plateau fracture of her right knee and underwent a series of surgeries.

Plaintiff’s expert opined that if defendants’ dog had been neutered, the dog would have “been less aggressive and therefore less likely to have run into the plaintiff’s leg.” Defendants moved for summary judgment and argued that the park guidelines did not create a duty owed by dog owners using the area to others in the off-leash dog area. Therefore, bringing their un-neutered dog to the area breached no duty. Plaintiff asserts the guidelines have the force of a duly enacted statute or regulation, and defendants’ violation of the guidelines is negligence per se or evidence of their negligence because they represent the reciprocal duty users of the area owed to each other. Plaintiff also contends that a reasonable juror could conclude that defendants’ decision to allow their unneutered dog to run in the area was a proximate cause of plaintiff’s injuries. The trial judge found that the posted guidelines did not create a duty and noted no one described defendants’ dog’s behavior as aggressive; he was simply running around a dog park. Subsequently, plaintiff appealed the dismissal of her negligence action.

According to precedent, “The owner may be liable if he or she knew or should have known of the dog’s “dangerous or mischievous propensities” because “[p]eople can be injured by playful, as well as mean, dogs.” De Robertis v. Randazzo, 94 N.J. 144, 150 (1983).” A plaintiff who can prove that an owner knew of his dog’s dangerous propensities is not restricted to a negligence action; that plaintiff may have a cause of action predicated on common-law absolute liability.” Id. at 153. In this instance, the appellate court conclude that plaintiff failed to assert or demonstrate that defendants’ had the requisite scienter regarding an aggressive or dangerous propensity on the part of their dog or that defendants’ were negligent because they owed a duty to her and other dog owners using the off-leash dog area to restrain their dog from doing precisely what was permitted, i.e., allowing the dog to run around freely and play with other dogs.

The appellate court further noted that plaintiff testified she saw nothing about the behavior of defendants’ dog that suggested any need for any action on defendants’ part, she never produced any resolution from the Board of Chosen Freeholders adopting the park guidelines as “rules or regulations” or prescribing any penalty for their violation and park guidelines were not intended to reduce the risk of normal canine behavior. Therefore, the appellate court affirmed the trial court’s ruling and dismissed the plaintiff’s negligence action.

At Hark & Hark, we represent clients for appeals in Superior Court for personal injury issues like the present case pertaining to canine/pet inflicted injuries to third parties. We work hard to ensure that our clients receive exceptional representation so that they receive the most favorable outcome as a result.

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