Robinson v. Vivirito, 217 N.J. 199 (2014). On her way to a diner on a Saturday, plaintiff Charlotte Robinson took a shortcut across a middle school property. As she crossed the schoolyard, she was attacked by a dog owned by defendant Frankie Keller, who lived next to the school in a house owned by defendant Frank Vivirito.
Plaintiff sued Keller, Vivirito, Kenneth Nelson, the middle school’s principal, and the Buena Regional School District Board of Education (“the Board”) for damages. Her theory against Nelson and the Board was that Nelson had a duty to protect her from the dog, a duty that he negligently breached, and that the Board was vicariously liable for Nelson’s negligence. Nine days before this incident, Nelson had been notified of two other attacks by the dog on or near school property. But Nelson took no action about that, and did not contact the police or animal control. Nelson was not at the school on that fateful Saturday, and no school activities or authorized non-school events took place at the school that day.
Plaintiff’s claims against Keller and Vivirito were dismissed for lack of prosecution. Nelson and the Board moved for summary judgment. They contended that Nelson “owed no duty of care to Robinson for events that occurred on school property after hours and from an animal they did not own or control.” The Law Division granted that motion. Plaintiff appealed, and the Appellate Division reversed.
That court ruled that Nelson, having been told of the dog’s dangerous history, had a duty to call the police or animal control, and that his failure to do that proximately caused plaintiff’s injuries. The Supreme Court unanimously reversed that decision and reinstated the summary judgment for Nelson and the Board. Judge Cuff wrote the opinion.
Judge Cuff extensively canvassed prior caselaw under the Tort Claims Act, N.J.S.A. 59:1-1 et seq., as well as cases regarding duty and foreseeability generally in the tort context. She also reviewed cases involving alleged negligence by school officials. One of those cases, Benjamin v. Corcoran, 268 N.J. Super. 517 (App. Div. 1993), was particularly significant, since Robinson relied heavily on it. There, a dog owned by a resident assistant superintendent of a public facility bit a girl who was lawfully on the facility’s grounds. The assistant superintendent was found to have a duty to control his dog, whom he knew had attacked others before.
Judge Cuff found Benjamin “of no relevance to our inquiry,” since there the public employee defendant owned and could control the offending dog. In contrast, here, “neither the school principal nor the school board had any control over the dog or activities on the neighboring property.” Nor was it foreseeable to Nelson, who was not present at the school on that Saturday, that plaintiff would enter the schoolyard for a purpose having nothing to do with the school or any authorized activity there. Moreover, as a matter of fairness and public policy, Nelson and the Board owed no duty to plaintiff, “a stranger to the mission of the school and a trespasser…. [who] had no right or license and certainly no consent to use school grounds as a short-cut.”
The dog bite statute, N.J.S.A. 4:19-16, makes a dog owner strictly liable to a person injured by that dog. It is not clear why plaintiff failed to prosecute her claim against Keller, the owner of the dog who bit her.