Charlotte Robinson v. Frank Vivirito (072407)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Charlotte Robinson v. Frank Vivirito (A-63-12) (072407)
Argued January 7, 2014 -- Decided March 26, 2014
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court revisits the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, to
determine the temporal and physical limits of the duty of a school principal to protect third parties passing across
school property.
On a Saturday in September 2009, plaintiff Charlotte Robinson used the schoolyard of Dr. J.P. Cleary
Middle School as a short cut to walk from her home to a nearby diner. As she crossed the schoolyard, she was
attacked by a dog. The dog’s owner lived in a house adjacent to the school and routinely chained the dog to a tree.
Nine days before the attack, defendant Kenneth Nelson, the school principal, had received a letter complaining of
two other attacks by the dog on or near school property. He did not contact the police or animal control. When
Robinson was attacked, Nelson was not on the premises, and no school functions or authorized non-school functions
occurred that day.
Robinson filed a complaint against Nelson and defendant Buena Regional School District Board of
Education (collectively, “the school defendants”) seeking damages for the injuries she sustained during the attack.
She contended that Nelson knew of the threat of harm posed by the dog and was responsible for the safety of the
school premises. Robinson alleged that Nelson failed to exercise his supervisory responsibilities, thereby causing or
contributing to her injuries. The trial court granted summary judgment to the school defendants, finding that
N.J.S.A. 59:4-2, which permits liability of a public entity for a dangerous condition of public property, does not
extend to injuries that occur due to activities conducted on the property. The court also found that Nelson owed no
duty of care to Robinson because he did not own, control or harbor the dog.
Robinson appealed, and the Appellate Division reversed. The panel reasoned that, since Nelson would
have a duty to address the presence of a stray dog on school property during the school day, there was no legal basis
to exclude liability to people who enter school property at other times. Thus, a jury could reasonably find that
Nelson had a duty to contact the police or animal control and request the dog’s removal because of its propensity to
escape and attack people on or near school property, and that his failure to do so was a proximate cause of
Robinson’s injury. The Court granted the school defendants’ petition for certification. 214 N.J. 117 (2013).
HELD: Under the TCA, a school principal owes no duty of care to a third party who decides to use school property
after hours for personal purposes and is injured by a stray animal that is neither owned nor controlled by school
personnel.
1. The TCA reestablished the immunity of public entities, while also detailing those acts and omissions for which a
public entity or employee may be held liable in damages. N.J.S.A. 59:2-2 imposes vicarious liability on a public
entity for acts or omissions of a public employee acting within the scope of his authority. Vicarious liability for the
negligent act of an employee is the primary source of liability for public entities. (pp. 8-9)
2. The fundamental elements of a negligence claim are a duty of care owed by a defendant to a plaintiff, the
defendant’s breach of that duty, injury to the plaintiff proximately caused by the breach, and damages.
Foreseeability is a critical factor in analyzing the existence of a duty of care to avoid harm to another, but whether
such a duty exists ultimately is governed by principles of fairness and public policy. Additionally, a landowner’s
duty to third persons to exercise reasonable care is generally grounded in the status of the third person, such as
guest, invitee or trespasser. Thus, the relationship of the parties, nature of the risk, opportunity to exercise care, and
public interest in recognizing a duty of care all influence the analysis. Ultimately, courts must assess the totality of
1
the circumstances that a reasonable person would consider relevant in recognizing a duty of care to another. (pp. 9-
11)
3. Courts have recognized that landowners owe a duty of care to persons lawfully on their premises. Several cases
also have addressed public entity liability for injuries resulting from the negligence of school officials. Specifically,
school personnel have a duty to exercise reasonable supervisory care for the safety of students entrusted to them.
However, a school district’s responsibility to protect students’ safety is temporally and physically limited, and its
obligation to act reasonably does not diminish the responsibilities of others. With respect to dog attacks on public
property, a public entity may be liable for resultant injuries if the owner of the dog is a public employee and he or
she fails to control the dog while on public property. Benjamin v. Corcoran, 268 N.J. Super. 517 (App. Div. 1993).
(pp. 11-15)
4. In determining whether the school defendants owed a duty of care to Robinson, the Court first considers whether
the harm to Robinson was foreseeable. To that end, the Court asks whether Nelson was reasonably able to ascertain
that his conduct could injure Robinson in the manner it did. Although the dog may have been removed had Nelson
called the authorities during the week, neither Nelson nor the school board had any control over the dog. Moreover,
once the school day ended, Nelson could not monitor conduct on or near school grounds. His absence from the
premises on the weekend foreclosed his ability to protect anyone who traversed the property, as well as his ability to
foresee any harm to Robinson. (pp. 16-17)
5. Whether the harm was foreseeable is not dispositive as to whether a duty of care existed. The Court also must
consider whether recognition of a duty of care to Robinson and similarly situated persons comports with fairness and
public policy. In doing so, the Court analyzes the parties’ relationship, the nature of the attendant risk, the
opportunity and ability to exercise care, and the public interest in the proposed solution. There was no relationship
between Robinson and the school defendants. She was a trespasser without right, license or consent to traverse
school grounds. Although the nature of the risk attendant to a roaming, vicious dog is manifest, Nelson had limited
opportunity and ability to minimize the risk of an attack by the dog on school premises when school was not in
session. Unlike a dog owner, who is subject to strict liability for attacks, a non-owner such as Nelson cannot control
the dog’s location and behavior. In order to prevent an attack, Nelson was limited to calling the authorities.
Moreover, when the dog entered the school yard on the weekend, any opportunity to intercede to protect third
parties was absent. In sum, there is no public interest in imposing a duty of care on school personnel to protect
persons with no relationship to the school from attacks by a neighbor’s dog. (pp. 17-19)
6. The school principal had no duty of care to Robinson under the facts of this case. Robinson had no relationship
to the school, and Nelson had no authority to control the dog or remove it from a place near the school, and, on a
weekend or extended recess, no opportunity to prevent an attack on a passerby or interloper on school property.
Imposing a duty of care to prevent an attack by a neighbor’s dog under these circumstances far exceeds the temporal
and physical limits of the authority and ability of a school principal to exercise reasonable care to minimize the risk
of harm to those lawfully on school property. Without the ability to control the behavior and location of the dog,
imposition of a duty of care would render the school defendants an insurer of the negligent behavior of others, a
result which is contrary to the purpose of the TCA. Finally, Benjamin v. Corcoran, 268 N.J. Super. 517 (App. Div.
1993) is factually distinguishable and irrelevant to the inquiry here since the defendants in Benjamin owned the dog,
lived on the premises of the public facility, and knew of the dog’s dangerous tendencies. (pp. 19-21)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-63 September Term 2012
072407
CHARLOTTE ROBINSON,
Plaintiff-Respondent,
v.
FRANK VIVIRITO, FRANKIE
KELLER, BUENA REGIONAL SCHOOL
DISTRICT BOARD OF EDUCATION,
and KENNETH S. NELSON,
Defendants-Appellants.
Argued January 7, 2014 – Decided March 26, 2014
On certification to the Superior Court,
Appellate Division.
Gregory J. Giordano argued the cause for
appellants (Lenox, Socey, Formidoni,
Giordano, Cooley, Lang & Casey, attorneys;
Michael Pattanite, Jr., on the briefs).
Melville D. Lide argued the cause for
respondent (Radano & Lide, attorneys).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
In this appeal we revisit the New Jersey Tort Claims Act
(TCA), N.J.S.A. 59:1-1 to 12-3, to determine the temporal and
physical limits of the duty of a school principal to protect
third parties passing across school property. Here, a woman
used the school yard as a short-cut to reach a local diner. As
she walked across the grounds, a stray dog attacked her causing
1
injuries requiring medical attention. The attack occurred on a
Saturday when school was not in session and no school or school-
sanctioned events occurred. Plaintiff contends that a resident
of an adjacent property owned the dog that attacked her, that
the dog slipped its leash and previously had accosted passersby,
and that the principal of the school had notice of the other
incident. Therefore, plaintiff argues that the principal and
the school district had a duty to prevent future attacks from
this known dangerous dog.
The trial court granted the motion for summary judgment
filed by the school principal and the school board. The court
held that the school principal owed no duty to the injured
plaintiff. The Appellate Division disagreed. It held that a
jury could find that the school principal had a duty to take
measures to prevent entry of a known dangerous dog onto school
property, and that a jury could find that the school principal
breached that duty.
Under the circumstances of this case, we determine that a
school principal owes no duty of care to a third party who
decides to use school property after hours for personal purposes
and is injured by a stray animal that is neither owned nor
controlled by school personnel. We, therefore, reverse the
judgment of the Appellate Division.
I.
2
We derive the facts viewed in the light most favorable to
plaintiff from the record submitted in support of and in
opposition to defendants’ motion for summary judgment. Polzo v.
Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012); Brill v. Guardian
Life Ins. Co., 142 N.J. 520, 540 (1995). The record reveals
that on Saturday, September 12, 2009, plaintiff Charlotte
Robinson was walking from her home to a nearby diner when she
was attacked by a dog. When Robinson encountered the dog, she
was on the grounds of the Dr. J.P. Cleary Middle School, a
school facility owned and operated by defendant Buena Regional
School District Board of Education (Buena Board). Defendant
Frankie Keller, who lived in a house adjacent to the school,
owned the dog and routinely chained the dog to a tree.
Robinson testified in her deposition that she had seen
Keller’s dog chained to a large tree close to the school
property on several occasions. On September 3, 2009, nine days
before the dog attacked and bit her, Kenneth Nelson, the school
principal, signed the receipt for a letter sent to him by
certified mail from two persons. The letter stated that the
neighbor’s dog had attacked them on or near the school property.
Nelson did not contact the police or animal control officials
after receipt of the September 3, 2009 letter. He notified the
local animal control authority on at least two other occasions
to report the presence of unleashed and unattended dogs on
3
school property. On each occasion, animal control responded
within hours of his call. Additionally, Nelson was not on the
premises at any time on Saturday, September 12, 2009; and no
school functions or authorized non-school functions occurred on
school property that day.
II.
Robinson filed a complaint seeking damages for the injuries
she received from the dog against defendant Frank Vivirito, the
owner of the house where the owner of the dog lived, and an
amended complaint against Keller, the owner of the dog, and the
Buena Board.1 In a second amended complaint, Robinson added the
school principal as a defendant. In her complaint against the
Buena Board and the school principal (the school defendants),
Robinson contended that the school principal was responsible for
the safety of the school premises, that he had been notified of
the presence of a dangerous dog on or near school property, and
that the dog posed a threat of harm to those on or near school
property. Robinson alleged that the school principal failed to
exercise his supervisory responsibilities of the property and
this failure caused or contributed to the injuries sustained by
her. Robinson maintained that the Buena Board was vicariously
liable for the negligence of the school principal. Robinson
1
The claims against both Vivirito and Keller were dismissed by
the trial court for lack of prosecution.
4
also alleged that the known presence of a vicious dog on school
premises created a dangerous condition of school property.
The school defendants filed a motion for summary judgment
arguing that the presence of a wayward dog on its premises did
not create a dangerous condition of school property. They also
argued that the school principal 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 trial judge
granted the motion.
In a written opinion, the trial judge held that N.J.S.A.
59:4-2, which permits liability of a public entity for a
dangerous condition of public property, does not extend to
injuries that occur due to activities conducted on the property.
Stated differently, a dangerous condition refers only to the
physical condition or features of the property. The trial judge
also determined that the school principal owed no duty of care
to Robinson because the principal did not own, control, or
harbor the dog that attacked her. The judge distinguished the
ruling in Benjamin v. Corcoran, 268 N.J. Super. 517 (App. Div.
1993), noting that the dangerous dog in that case which bit a
young girl on the grounds of a public facility was owned by the
resident assistant superintendent of the facility. The
Appellate Division held in Benjamin that knowing the dog had
bitten others, the public official had a duty to remove or
5
control the dog and prevent injuries caused by the dog to those
who lawfully entered the grounds of the public facility.
The Appellate Division reversed the order granting summary
judgment to the school defendants. The panel held that the
school principal had a duty “to address a known danger from the
dog to people who come onto the property.” The appellate court
reasoned that the school principal would have had an obligation
to address the presence of a stray dog on the school premises
during the school day. Therefore, the panel declared it could
discern “no basis to exclude, as a matter of law, liability to
people who come onto the school’s property at other times.” The
panel concluded that a jury could reasonably find that the
school principal “had a duty to contact the police or the animal
control officer to request that the dog be removed because of
its propensity to escape and attack people on or near the school
property, and that his failure to do so was a proximate cause of
[plaintiff’s] injury.”
This Court granted the school defendants’ petition for
certification. 214 N.J. 117 (2013).
III.
A.
The school defendants argue that the school principal owed
no duty to protect passersby and people using school grounds as
a short-cut during non-school hours from the actions of a stray
6
aggressive dog or any other stray animal. They distinguish
Benjamin on its facts. They emphasize that the school principal
did not own or control the dog that bit Robinson. The school
principal had called the animal control officer when he learned
of a stray dog on school premises before the incident involving
Robinson. The school defendants emphasize that the school
principal had no legal authority to control the dog that bit
her. Ultimately, they urge that permitting Robinson to pursue a
negligence claim based on the actions or lack of action of the
school principal “would be an assault on the Tort Claims Act and
on the traditional principles of negligence.”
B.
Robinson urges the Court to hold that the public entity
should be vicariously liable for the acts or omissions of its
employee, the school principal. She argues that the school
principal was in charge of the school buildings and grounds and
responsible for the safety of those in the building and on the
grounds. Robinson contends that the school principal also had
notice of the aggressive behavior of the dog before the attack
on Robinson but did nothing to protect her or the safety of
those using school grounds. She argues that the facts of this
case are directly analogous to prior Appellate Division
precedent, which determined that a jury could find a public
entity liable for the failure of owners of an aggressive dog to
7
take measures to protect residents of a public facility, their
visitors, and users of the grounds from the actions of a
dangerous dog. Robinson concedes, as she did in her brief in
the Appellate Division, that a dog on public property does not
constitute a dangerous condition of public property, and that
she is not entitled to relief pursuant to N.J.S.A. 59:4-2.
IV.
The TCA reestablished the immunity of public entities,
while also creating a scheme to impose liability on public
entities to ameliorate “the harsh results of the [sovereign
immunity] doctrine.” Beauchamp v. Amedio, 164 N.J. 111, 115
(2000); N.J.S.A. 59:1-2. Therefore, while “public entity
immunity is the theme that permeates the statute, [the TCA] also
details certain acts and omissions for which a public entity or
public employee may be held liable in damages.” Beauchamp,
supra, 164 N.J. at 115-16.
The provision at the heart of this case, N.J.S.A. 59:2-2,
imposes vicarious liability on a public entity for acts or
omissions of a public employee acting within the scope of his
authority. The statute provides:
a. A public entity is liable for injury
proximately caused by an act or omission of
a public employee within the scope of his
employment in the same manner and to the
same extent as a private individual under
like circumstances.
8
b. A public entity is not liable for an
injury resulting from an act or omission of
a public employee where the public employee
is not liable.
[N.J.S.A. 59:2-2.]
This Court has commented that vicarious liability of the public
entity for the negligent act of its employee is the primary
source of liability for the public entity. Tice v. Cramer, 133
N.J. 347, 355 (1993). Consistent with the purpose of the TCA to
relax the general rule of sovereign immunity for the tortious
acts of public employees, the TCA permits liability for the
negligent acts of public employees only on the same terms as a
private individual. N.J.S.A. 59:2-1(b); Rochinsky v. State,
Dep’t of Transp., 110 N.J. 399, 407 (1986).
The fundamental elements of a negligence claim are a duty
of care owed by the defendant to the plaintiff, a breach of that
duty by the defendant, injury to the plaintiff proximately
caused by the breach, and damages. Jersey Cent. Power & Light
Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013); Weinberg v.
Dinger, 106 N.J. 469, 484 (1987). The issues of whether a
defendant owes a legal duty to another and the scope of that
duty are generally questions of law for the court to decide.
Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996);
Kelly v. Gwinnell, 96 N.J. 538, 552 (1984). The determination
of the existence of a duty of care to avoid harm to another is
9
ultimately governed by fairness and public policy. Carvalho,
supra, 143 N.J. at 573.
Foreseeability is a critical but not dispositive factor in
the analysis of whether a duty of care to avoid harm to a third
party is recognized. Ibid.; Goldberg v. Hous. Auth. of Newark,
38 N.J. 578, 583 (1962). Foreseeability often subsumes many
factors deemed relevant to the recognition of a duty. Carter
Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194
(1994). Those factors include the relationship between the
plaintiff and the alleged negligent party, the nature of the
risk, and the ability to alter behavior to avoid injury to
another. Ibid. Foreseeability as a determinant of a duty to
exercise care to another is distinguishable, however, from
foreseeability as a determinant of whether a breach of duty
proximately caused an injury. Clohesy v. Food Circus
Supermarkets, Inc., 149 N.J. 496, 502-03 (1997). As it
influences the recognition of a duty of care, foreseeability
refers to
“the knowledge of the risk of injury to be
apprehended. The risk reasonably to be
perceived defines the duty to be obeyed; it
is the risk reasonably within the range of
apprehension, of injury to another person,
that is taken into account in determining
the existence of the duty to exercise care.”
[Id. at 503 (quoting Hill v. Yaskin, 75 N.J.
139, 144 (1977)).]
10
When a person alleges that a landowner has acted
negligently, the existence of a duty by a landowner to exercise
reasonable care to third persons is generally governed by the
status of the third person – guest, invitee, or trespasser –
particularly when the legal relationship is clearly defined.
Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414-15 (2004);
Clohesy, supra, 149 N.J. at 502. When the legal relationships
are not clearly defined, other factors may influence the
recognition of a duty of care by property owners to protect
third parties from harm, such as the knowledge of circumstances
that may cause harm to another, including criminal activity on
the property or in the area and the extent of such activity.
Clohesy, supra, 149 N.J. at 516-17; Hopkins v. Fox & Lazo, 132
N.J. 426, 438 (1993). The relationship of the parties, the
nature of the risk, the opportunity to exercise care, and the
public interest in recognition of a duty of care also influence
the analysis. Jenkins v. Anderson, 191 N.J. 285, 295 (2007).
In the end, a court must assess the totality of the
circumstances that a reasonable person would consider relevant
in recognizing a duty of care to another. Clohesy, supra, 149
N.J. at 508, 514.
In Clohesy, a patron was abducted from the parking lot of a
supermarket by a man loitering in the area and later was
murdered. Id. at 499-500. The Court determined that business
11
owners and landlords have a duty to protect patrons from
foreseeable criminal acts by third parties on the premises. Id.
at 516. It held that the scope of that duty includes security
for the parking lot. Id. at 517. The Court determined that the
precise nature of the security, such as security guards or
surveillance cameras or both, to discharge the duty of care to
patrons was a question for the jury. Id. at 519.
This Court also has held that a school district owed a duty
of care to a contractor who was retained by the district and who
was killed when a trench on school property collapsed.
Pfenninger v. Hunterdon Cent. Reg’l High Sch., 167 N.J. 230,
241-42 (2001). The school district owed a duty of care to the
contractor because it had reserved the right to purchase all
building materials under its contract with the contractor and
had failed to purchase the specific materials listed in the
architectural designs. Id. at 242.
On the other hand, the Appellate Division has determined
that a school district was not liable for injuries sustained by
an adult night student, who was struck by a car as she crossed a
road from a shopping center parking lot to reach the school in
which she was enrolled. Ross v. Moore, 221 N.J. Super. 1, 4
(App. Div. 1987). There, the plaintiff contended that there was
insufficient on-site parking and school officials negligently
failed to provide reasonably safe passage from the off-site
12
alternative. Id. at 4-5. The appellate court declined to apply
Warrington v. Bird, 204 N.J. Super. 611 (App. Div. 1985),
certif. denied, 103 N.J. 473 (1986), which recognized a standard
of care to provide safe passage for commercial establishments
which provided off-site parking to patrons. Ross, supra, 221
N.J. Super. at 7. The panel reasoned that extension of that
rule was not appropriate because the school district did not own
or control the shopping center parking lot; therefore, it had no
duty to provide students safe passage from a lot it did not
control. Ibid.
Several cases have addressed public entity liability for
injuries resulting from negligence of school officials. In
Jenkins, supra, the Court addressed the scope of a school
principal’s duty to protect students. 191 N.J. at 289. A third
grade student left school grounds unattended following an early
dismissal. Id. at 290. Two and one-half hours later, he was
struck by a car and seriously injured at an intersection several
blocks from the school and in a different direction from his
house. Ibid. Recognizing that school officials have a general
duty to exercise reasonable care for the children entrusted to
them, the Court proceeded to consider whether this duty extended
up to and through the dismissal process. Id. at 296. The Court
concluded that school officials had such a duty, id. at 298-99,
and the scope of the duty was “defined by a standard of
13
reasonableness,” id. at 301. The Court noted, however, the
practical limits of the duty of care to protect students’ safety
during all activities in the course of or after dismissal. The
Court stated:
Our holding should not be interpreted to
suggest that schools are guarantors of
students’ safety with respect to all
activities during or after dismissal. A
school district’s responsibility has
temporal and physical limits, and its
obligation to act reasonably does not
diminish the responsibilities [of others].
[Id. at 306.]
The Court’s ruling in Jenkins built on prior precedent that
recognized the duty of school personnel to exercise reasonable
supervisory care for the safety of students entrusted to them
and their accountability for injuries that occurred due to a
failure to discharge that duty. See Frugis v. Bracigliano, 177
N.J. 250, 268 (2003) (“A board of education must take reasonable
measures to assure that the teachers and administrators who
stand as surrogate parents during the day are educating, not
endangering, and protecting, not exploiting, vulnerable
children.”); Jackson v. Hankinson, 51 N.J. 230, 235-36 (1968)
(recognizing duty of school officials to provide reasonably safe
transportation when they decide to provide service); Titus v.
Lindberg, 49 N.J. 66, 73 (1967) (recognizing duty of school
14
personnel to exercise reasonable supervisory care for safety of
students during school hours).
A public entity may be liable for injuries sustained on
public property from a dog on public property, if the owner of
the dog is a public employee and fails to control the dog on
public property. Benjamin, supra, 268 N.J. Super. at 520. In
Benjamin, the plaintiff was sleigh-riding on the grounds of a
public residential facility for retired firemen when she was
bitten by a dog. Ibid. The facility’s assistant superintendent2
and the director of nursing, a married couple who resided on the
premises, owned the dog. Ibid. On two separate occasions, the
dog attacked individuals. On one occasion the attack occurred
on the public sidewalk adjacent to the facility; the other
incident was not near the premises. Ibid. The Appellate
Division held that the persons who owned or controlled the dog
had a duty to exercise reasonable care to prevent the dog from
attacking not only those who resided in the facility but also
those who entered the property. Id. at 526. The panel reasoned
that the standard of care owed by the public employee, who
controlled the dog and had notice of the dangerous nature of the
dog, included removal of the dog from the premises. Id. at 527.
V.
2
The assistant superintendent died before the incident, however,
the dog continued to reside at the facility in the care of his
wife, the director of nursing.
15
Applying these principles to this appeal, we must determine
whether the school defendants owed a duty of care to plaintiff.
This analysis requires us to consider whether the harm to
plaintiff was foreseeable, and whether recognition of a duty of
care to plaintiff under these circumstances comports with
considerations of fairness and public policy. We first address
the foreseeability of the harm experienced by plaintiff.
Foreseeability requires a determination of whether the
defendant was reasonably able to ascertain that his allegedly
negligent conduct could injure the plaintiff in the manner it
ultimately did. McDougall v. Lamm, 211 N.J. 203, 225-26 (2012).
Robinson alleges that the school principal was on notice that
the neighbor’s dog was vicious, that it had a propensity for
breaking free of its restraints and had previously attacked two
people on or near school property. Further, she claims that the
school principal failed to call the police and have the dog
removed prior to her encounter with the dog. Robinson contends
that the failure to have the dog removed when school was in
session permitted the dog to attack her on the weekend. In
support of this contention, Robinson relies on the school
principal’s testimony that he had caused stray dogs to be
removed from school premises when they had been found on school
property when school was in session.
16
To be sure, if the school principal had called the police
or animal control officers during the week, the dog might have
been removed and would not have been on or near school property
over the weekend. On the other hand, neither the school
principal nor the school board had any control over the dog or
activities on the neighboring property. At best, the school
principal could express his concern about the dog to its owner,
and to the owner of the premises where the dog was restrained,
or request that police corral the dog or counsel the owner of
the dog to refrain from chaining the dog to a tree in such close
proximity to the school yard.
Moreover, once the school day ended, the school principal
had no ability to monitor conduct on or near school grounds.
The absence of the principal from the premises on the weekend
due to the conclusion of school activities foreclosed his
ability to undertake any action to protect anyone who traversed
school grounds and his ability to appreciate the foreseeability
of any harm to Robinson.
Foreseeability, however, is not the sole determinative
factor to a decision to impose a duty of care to a third party.
The Court must also consider whether the recognition of a duty
of care to Robinson and similarly situated persons comports with
fairness and public policy. Several factors inform this
inquiry, including “the relationship of the parties, the nature
17
of the attendant risk, the opportunity and ability to exercise
care, and the public interest in the proposed solution.”
McDougall, supra, 211 N.J. at 225; Jenkins, supra, 191 N.J. at
295.
In this case, there was no relationship between the school
defendants and Robinson. She was neither a student nor the
parent or guardian of a student. She had not been invited onto
the school property for a school activity or a community
activity conducted on school grounds. She was not a vendor or
contractor invited onto school property to provide a service or
perform repairs. She was, in fact, a stranger to the mission of
the school and a trespasser. She had no right or license and
certainly no consent to use school grounds as a short-cut. Her
only connection or relationship with the school was her
unilateral decision to use the school yard as a path to a local
diner.
To be sure, the nature of the risk attendant to a roaming,
vicious dog is manifest. Once a dog has broken from its
restraints, it may wander and confront and attack people it
encounters. It is for this reason that a dog owner is strictly
liable to a person injured “regardless of the former viciousness
of such dog or the owner’s knowledge of such viciousness.”
N.J.S.A. 4:19-16. Countering the risk attendant to a roaming
dog with a propensity to attack people it encounters is the
18
limited opportunity and ability of the school principal to
alleviate or minimize the risk of an attack by a roaming dog on
persons on school premises when school is not in session. The
Legislature imposes strict liability on a dog owner because the
owner has the authority and opportunity to control the behavior
and location of the dog. A non-owner, such as the school
principal, has no ability to control the location and behavior
of a neighbor’s dog. His actions to prevent an encounter with a
roaming dog and to prevent an attack by that dog are limited to
calling the police or animal control officers. The principal
could not force the police to respond in a timely manner or to
take other measures to collect the dog, if it has wandered off
the school premises. Moreover, when a stray dog enters the
school yard on a weekend, any opportunity to intercede to
protect third parties is absent.
We cannot identify any public interest in imposing a duty
of care on school personnel to protect persons with no
relationship to the school from attacks by a neighbor’s dog.
The Legislature has imposed the duty of care with respect to
dogs on owners because of their opportunity to control the
behavior and location of their dog.
To summarize, we hold that the school principal had no duty
of care to Robinson under the facts of this case. Robinson had
no relationship to the school. The school principal had no
19
authority to control the behavior of the dog, no authority to
remove the dog from a place proximate to the school, and no
opportunity after the cessation of classes and after-school
activities, on a weekend or during an extended recess to take
any action to prevent an encounter between the dog and a
passerby or interloper on school property. The imposition of a
duty of care to third parties to prevent an attack by a dog
owned by a neighbor under these circumstances far exceeds the
temporal and physical limits of the authority and ability of the
school principal to exercise reasonable care to minimize the
risk of harm to those lawfully on the school property. Absent
some ability to control the behavior and location of the dog,
imposition of a duty of care does not foster the public
interest. Rather, it renders the school defendants an insurer
of the negligent behavior of others, which is contrary to the
purpose of the TCA.
Finally, the ruling in Benjamin v. Corcoran provides no
basis to impose a duty of care on the school defendants to
Robinson. Benjamin is factually distinguishable in all material
respects. The ownership of the dog by the defendants, who not
only worked but also lived on the premises of the public
facility and had notice of its dangerous tendencies, renders the
case of no relevance to our inquiry.
VI.
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We, therefore, reverse the judgment of the Appellate
Division.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, and
FERNANDEZ-VINA, and JUDGE RODRÍGUEZ (temporarily assigned) join
in JUDGE CUFF’s opinion.
21
SUPREME COURT OF NEW JERSEY
NO. A-63 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
CHARLOTTE ROBINSON,
Plaintiff-Respondent,
v.
FRANK VIVIRITO, FRANKIE
KELLER, BUENA REGIONAL SCHOOL
DISTRICT BOARD OF EDUCATION,
and KENNETH S. NELSON,
Defendants-Appellants.
DECIDED March 26, 2014
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 7
1