PATRICIA WARD VS. BRIGIDA OCHOA (L-10761-14, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4287-16T4
PATRICIA WARD,
Plaintiff-Appellant,
v.
BRIGIDA OCHOA, NOE GONZALEZ,
LAND SAFE APPRAISALS, INC. and
BANK OF AMERICA,
Defendants,
and
CENTURY 21 WORDEN & GREEN
and KEN SONG,
Defendants-Respondents.
____________________________________
Argued May 21, 2018 – Decided June 28, 2018
Before Judges Ostrer, Rose and Firko.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
10761-14.
Justin Lee Klein argued the cause for
appellant (Hobbie, Corrigan & Bertucio, PC,
attorneys; Justin Lee Klein, of counsel and
on the briefs).
Deirdre M. Dennis argued the cause for
respondents (Law Offices of Linda S. Baumann,
attorney; Deirdre M. Dennis, on the brief).
PER CURIAM
Plaintiff Patricia Ward ("Ward") appeals the Law Division
order granting summary judgment in favor of defendants Century 21
Worden & Green ("Century 21") and Ken Song ("Song") and dismissing
the complaint against them with prejudice. We affirm.
Ward's claim arises out of severe and permanent injuries she
sustained after being attacked by a pitbull while performing an
appraisal on October 3, 2014, at the home owned by defendants
Brigida Ochoa ("Ochoa") and Noe Gonzalez ("Gonzalez"). Ochoa and
Gonzalez previously settled their claim with Ward.
I.
We discern the following facts from the motion record,
considering them in the light most favorable to Ward. See Robinson
v. Vivirito, 217 N.J. 199, 203 (2014) (citation omitted). On June
5, 2014, Song entered into a listing agreement with the homeowners
with a view toward conducting a short sale of their foreclosed
residential property. Song, a realtor employed by Century 21, was
the listing agent and the buyer's agent. In order to close title,
the short sale had to be approved by the foreclosing mortgage
holder, Bank of America ("BOA"). During the period of the listing
agreement, Ward contends Song was obligated to ascertain the number
2 A-4287-16T4
and breed of dogs the homeowners owned. Ward, a licensed real
estate appraiser since 1989, was assigned to inspect and appraise
the subject property through the auspices of BOA's appraisal
coordinator, Land Safe Appraisal Services, Inc. ("Land Safe").
Ward was contacted directly by Land Safe to perform the
appraisal. In her career, she had performed 200 to 250 residential
appraisals annually. Ward attempted to communicate with Ochoa to
set up the appointment because the homeowner was listed as the
contact person for the appraisal. After Ward's efforts were
unsuccessful, she asked Land Safe for permission to contact Song
in order to facilitate making the appointment with Ochoa. Ward
called Song to follow up. At her deposition, she stated that no
inquiry was made as to whether the home was owner occupied or if
dogs were on the premises.
Ultimately, Ward contacted Ochoa to set up the appointment.
At her deposition, Ward understood Ochoa was her client. Ward did
not ask Ochoa if there was a lockbox on the house or if there were
dogs present. Song was never contacted by Ward to ascertain
whether or not the home was owner occupied. However, he did inform
her that there was a dog at the premises prior to the date of the
appraisal. The homeowners contended that their pitbulls did not
have any vicious propensities prior to this incident.
3 A-4287-16T4
When Ward arrived at the home on October 3, 2014, Ochoa told
her that two dogs were crated in the kitchen. Ward confirmed this
and felt that the crated dogs posed no danger to her. After
stepping into the foyer, a bedroom was situated to the left. An
older, lethargic, uncrated pitbull was in that bedroom described
by Ward as "very calm and docile." Ward did not object to the
presence of any of the dogs or request their removal. The crated
dogs were fifteen to sixteen feet away from the foyer. The
interior inspection proceeded for about forty minutes without
incident. She proceeded with the appraisal and did not reschedule
even though she had the ability to do so. At her deposition, Ward
admitted that she had no reason to believe the pitbulls were
dangerous because two were in crates and not making noise, and the
other dog was sick.
After Ward and Ochoa exited the home through the front door,
they walked along the perimeter of the house near the side door
and Ochoa went inside. She noticed that the dogs were out of
their crates and on the deck and making noise. Ward observed this
as well and nonetheless, proceeded to photograph the rear of the
house. At this point, she testified that she still had no reason
to believe that any of the dogs would bite her. As Ward walked
toward her car, one of the pitbulls charged her and she ran away
in fear. At the foot of the driveway, Ward was repeatedly attacked
4 A-4287-16T4
by one of the pitbulls, which resulted in her sustaining a
fractured radius and nerve damage, requiring surgery. Admittedly,
Ward did nothing to ensure her own safety. Song was not at the
premises when the incident occurred, and no one requested him to
be there.
Century 21 crafted an internal "policy" to ensure that "pets"
were appropriately secured by homeowners when third parties were
to visit. Song and Century 21 contend that they abided by their
internal policy, referred to as the "Open House Don't" list, as
evidenced by the fact that the dogs were restrained and crated at
the time Ward arrived.
The "Open House Don't" list provided as follows:
1. USE OWNERS' PHONES TO MAKE ANY LONG
DISTANCE CALLS. IF YOU DO LEAVE $$.
2. LET OWNER BE THERE WHEN [YOU ARE]
HOME.
3. FORGET PAPERWORK TO WORK ON IF IT IS
SLOW.
4. ONLY PUT UP 1 OR 2 SIGNS.
5. FORGET TO CLEAN UP DONUTS/COFFEE.
6. LEAVE HOUSE TO SHOW ANOTHER HOME IN
AREA.
7. BE LATE OR CLOSE EARLY.
8. LET CUSTOMER LEAVE WITHOUT
NAME/NUMBER/YOUR BUSINESS CARD
9. DO OPEN ON POORLY TRAVELED ROAD,
SECLUDED AREA.
10. HOLD OPEN ON POPULAR SPORTING
DATE/HOLIDAY WEEKENDS.
11. HOLD OPEN ON O.P.T.
12. ALLOW OWNER TO LEAVE PETS AROUND.
13. LET SMALL CHILDREN OF VISITORS GET OUT
OF CONTROL.
5 A-4287-16T4
[(Emphasis added).]
It is undisputed that Ward never had a written agreement with
Century 21 (or Song). On the date in question, Ward was a partner
with P & R Appraisals, LLC ("P & R"). Her company did not have
any policies or protocols applicable to appraising a residence
when dogs were present.
Century 21 and Song moved for summary judgment arguing that
their alleged acts or omissions were not a proximate cause of
damage to Ward, and that they did not owe any duty to her.
In an oral opinion rendered on May 26, 2017, the judge
determined that Ward could not maintain a negligence claim because
no duty of care existed between these parties. In doing so, the
judge found:
[t]he most that could be said is to tell the
parties to keep your dogs caged or take them
out of the house. They have dog[s] in ca[g]es.
The dog gets loose. It's not foreseeable in
any way. They complied with everything
reasonable that the realtor could have told
them. There's nothing in any way that would
be foreseeable by [Century 21 and Song], which
is an element of negligence on premises
liability.
A memorializing order was entered on the same date, and this appeal
followed.
Ward argues on appeal that the judge should have denied the
motion for summary judgment because she established that Century
6 A-4287-16T4
21 and Song owed her a duty to remove the pitbulls, breached that
duty, and caused her injuries. In making this argument, Ward
essentially presents two theories of negligence. First, she argues
that movants' duty is derived from "multiple sources," including
common law, because being attacked by the pitbull was an apparent
and foreseeable risk. Second, Ward contends Century 21 and Song
had an affirmative obligation to ensure the safety of the premises
by having the pitbulls removed when she was present because movants
had an internal "policy" to this effect which they failed to abide
with. Additionally, she contends that the judge disregarded legal
authorities, evidence, and her expert report. We disagree.
II.
This court reviews a ruling on summary judgment de novo,
applying the same legal standard as the trial court. Conley v.
Guerrero, 228 N.J. 339, 346 (2017); and Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016).
Thus, this court considers, as the trial judge did, "whether the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso,
P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 536 (1995)).
7 A-4287-16T4
Summary judgment must be granted "if the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving party
is entitled to a judgment or order as a matter of law." Templo
Fuente, 224 N.J. at 199 (quoting R. 4:46-2(c)).
As our Supreme Court has instructed:
a determination whether there exists a
"genuine issue" of material fact that
precludes summary judgment requires the motion
judge to consider whether the competent
evidential materials presented, when viewed in
the light most favorable to the non-moving
party, are sufficient to permit a rational
factfinder to resolve the alleged disputed
issue in favor of the non-moving party.
[Brill, 142 N.J. at 540.]
"To defeat a motion for summary judgment, the opponent must 'come
forward with evidence that creates a genuine issue of material
fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div.
2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State,
425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory and self-
serving assertions by one of the parties are insufficient to
overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41 (2005)
(citations omitted).
If there is no genuine issue of material fact, this court
must then "'decide whether the trial court correctly interpreted
8 A-4287-16T4
the law.'" DepoLink Ct. Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citations
omitted). "When no issue of fact exists, and only a question of
law remains, this Court affords no special deference to the legal
determinations of the trial court." Templo Fuente, 224 N.J. at 199
(citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995)). However, a "'trial court's interpretation of
the law and the legal consequences that flow from established
facts are not entitled to any special deference.'" Ibid. (quoting
Manalapan Realty, 140 N.J. at 378).
III.
Ward's initial argument on appeal raises a purely legal issue
because "[t]he determination of the existence of a duty is a
question of law for the court." Petrillo v. Bachenberg, 139 N.J.
472, 479 (1995) (citation omitted). Our courts "have long held
that it is ordinarily a plaintiff's burden to prove negligence,
and that it is never presumed." Khan v. Singh, 200 N.J. 82, 91
(2009) (citation omitted). "To sustain a cause of action for
negligence, a plaintiff must establish four elements: '(1) a duty
of care, (2) a breach of that duty, (3) proximate cause, and (4)
actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015)
(quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)).
9 A-4287-16T4
There is a presumption against negligence, and the burden of
establishing such negligence is on plaintiff. Buckelew v.
Grossbard, 87 N.J. 512, 525 (1981). "A prerequisite to recovery
on a negligence theory is a duty owed by defendant to plaintiff."
Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988)
(citation omitted). "The duty owed by a premises owner . . .
depends in general upon the application of well-established
categories through which the status of the injured party is used
to define both duty and foreseeability." Estate of Desir ex rel.
Estiverne v. Vertus, 214 N.J. 303, 316 (2013).
In Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993),
plaintiff was injured after losing her footing on a step during
an open-house tour at the invitation of the broker. The Court
held "the nature of the relationship between a [real estate] broker
and its customer in the conduct of an open-house inspection of
property is substantial." Id. at 441. "[W]e conclude that implicit
in the broker's invitation to customers is some commensurate degree
of responsibility for their safety while visiting the premises."
Ibid. "[T]he key to the broker-customer relationship, which gives
rise to a duty of care, is the services that are offered by the
broker and expected by the customer in the context of an open-
house inspection of property." Id. at 444. (Emphasis added).
10 A-4287-16T4
We find that Hopkins is factually distinguishable. The
Court's holding in Hopkins is grounded in the recognition that it
is reasonable for a broker to inspect a home for purposes of
marketing it to potential buyers . . . and to give adequate
warnings with respect to hazards readily discoverable through such
an inspection . . . . " Id. at 446. We decline to extend the
holding in Hopkins to interpret that a dog constitutes a "hazardous
condition," as urged by Ward. Century 21 and Song did not have
an economic interest in Ward conducting an appraisal here.
Governed by these principles, we find that Ward did not engage in
any activity akin to any sort of a relationship with Century 21
or Song, thus making Hopkins inapplicable here.
Unlike the plaintiff in Hopkins who was injured after missing
a step, Ward was injured as a result of her employment with P &
R. The record is devoid of any evidence to suggest that Ward was
a "customer" of Century 21 or Song. Consequently, there was no
legal relationship between the parties, and no privity of contract.
Whether analyzed under the traditional common law categories,
or under Hopkin's more general analysis, Ward failed to establish
a duty. Thus, the judge properly granted summary judgment after
analyzing "the relationship of the parties, the nature of the
attendant risk, the opportunity and ability to exercise care
. . . ." Id. at 449.
11 A-4287-16T4
Plaintiff's remaining evidentiary arguments lack sufficient
merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Affirmed.
12 A-4287-16T4