ALIESETTE RUSSO VS. CREATIONS BY STEFANO, INC. (L-1757-16, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0663-18T1
ALIESETTE RUSSO and
ANTHONY RUSSO, her
husband,
Plaintiffs-Respondents,
v.
CREATIONS BY STEFANO,
INC. and STEFANO SIMONE,
Defendants-Respondents,
and
PLATINUM REALTY GROUP,
Defendant-Appellant.
____________________________
Argued telephonically March 23, 2020 –
Decided August 20, 2020
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1757-16.
William Pfister, Jr. argued the cause for appellant.
Christian C. Lo Piano argued the cause for respondents
Aliesette Russo and Anthony Russo (LoPiano Kenny &
Stinson, attorneys; Christian C. Lo Piano, on the brief).
PER CURIAM
In this dog bite case, defendant Platinum Realty Group, LLC (Realty),
appeals from the trial court's grant of partial summary judgment on liability in
favor of plaintiff Aliesette Russo (Russo), and the denial of its own cross-motion
to dismiss. A dog that Stefano Simone (Simone) owned bit Russo while she was
in Simone's jewelry store, Creations by Stefano, Inc. (Creations). The store was
located in a one-floor building Realty owned. As Simone was Realty's managing
member, the trial court held it was vicariously liable for Russo's damages. After
a damages-only trial, a jury awarded Russo $107,500.
We conclude there exists, on the record before us, a genuine issue of
material fact as to whether Simone was acting as Realty's agent when the dog
bit Russo. Therefore, we reverse partial summary judgment on liability, but
affirm the order denying Realty's motion to dismiss.
I.
Regarding Realty's appeal from the order granting Russo partial summary
judgment, we view the facts in a light most favorable to defendant Realty as the
non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
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(1995). However, regarding Realty's cross-motion to dismiss the complaint, we
extend to Russo "every reasonable inference of fact." Printing Mart-Morristown
v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).1
The parties do not dispute that Russo arrived at the jewelry store at around
5:00 p.m. on May 2, 2014. She rang the doorbell. Simone was in the back of
the store, preparing to close for the day. But two employees were up front.
Realty admitted that Russo was lawfully on the premises with its
permission. As reflected in a video-recording of the incident, Russo
immediately approached "Contessa," a Rottweiler that stood on its hind legs,
with his front paws on a low door that separated the public sales floor from the
employees' area behind the counter and showcases. Contessa's head extended
into the public area. Russo was a repeat customer and had pet the dog before.
In the past, store employees provided customers with treats to give to the dog.
The parties dispute whether one of the employees suggested that Russo refrain
1
Even if we deemed Realty's cross-motion as one for summary judgment,
Russo's motion did not waive her right to contest Realty's assertions in support
of its cross-motion. See O'Keeffe v. Snyder, 83 N.J. 478, 487 (1980) (stating
that cross-motions for summary judgment do not constitute a waiver of factual
disputes as "a party may make concessions for the purposes of [her] motion that
do not carry over and support the motion of [her] adversary").
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from petting Contessa, because she was barking or was excited.2 Russo
extended her open right hand and Contessa bit it.
Simone owned the dog. It was licensed to him at the business address.
One employee testified that the dog remained at the business location when the
store was closed.3 Simone was the sole shareholder of Creations, which operated
the jewelry store.
2
Employee Antonio Saavedra testified in deposition that his co-employee
Marietta Bosca "clearly said to [Russo], I don't think it is a good idea to pet
[Contessa] because she is barking. I don't remember if she said barking or
excited but she clearly sa[id] that. And she [Russo] — and her answer was no,
no, no, the dog like[s] me." By contrast, Russo alleged the dog bit her "without
warning."
3
Russo alleged in her statement of material facts that the dog was licensed at
the business address. She relied on a dog license that was issued in 2015.
Although it post-dated the incident, it sufficed as circumstantial evidence that
the dog lived at the business premises in 2014, particularly since the record also
includes a certification of a 2013 rabies vaccination, which listed the business
address for the owner and the dog. Realty denied the statement that the dog was
licensed to the business address without citing competent evidence, such as
Simone's sworn statement or a certified copy of a previous license. See R. 4:46-
2(b). Rather, Realty stated, "Upon information and belief, the dog was
register[ed] on May 2, 2014 at Mr. Simone's residence." That statement was
insufficient to deny Russo's assertion. See Jacobs v. Walt Disney World, Co.,
309 N.J. Super. 443, 454-55 (App. Div. 1998) (stating that "factual assertions
based merely upon 'information and belief' are patently inadequate" to present
admissible evidence on a motion). Therefore, we deem Russo's statement
regarding the dog's residence to be undisputed. R. 4:46-2(b).
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Simone was also the managing member of Realty. Evidently, he was not
the sole member. A March 2018 status report states that Yuneiry Gonzalez -
Simone was also a member of the LLC.
Simone admitted that Realty "owned, operated and controlled" the
building. Realty contended that Creations was a "tenant in possession," but
admitted that there was no lease between Realty and Creations, and provided no
other competent evidence, such as proof of rent payment, to prove a landlord-
tenant relationship between the two entities.
On April 29, 2016, Russo filed her complaint against Simone, Creations,
and Realty.4 She asserted a claim under the so-called Dog Bite Statute, N.J.S.A.
4:19-16 (Statute). In support of common law claims, she also asserted that
Simone and Creations knew or should have known the dog had vicious
propensities, and they negligently failed to protect Russo from danger. She also
alleged Simone and Creations engaged in reckless, willful and wanton behavior.
Realty denied liability.5
4
Russo's husband was a co-plaintiff on a per quod claim. The jury entered a no
cause judgment on his claim.
5
We do not address Simone's and Creations' respective responses as they are
not parties to the appeal.
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5
After a period of discovery, Russo filed her motion for partial summary
judgment. She sought a finding that Simone was strictly liable under the Statute,
and Realty and Creations were vicariously liable. 6 Realty evidently filed a
cross-motion to dismiss the complaint against it. 7
Russo argued that Simone was strictly liable under the Statute because he
owned the dog; Russo was lawfully on the premises; and the dog bit Russo. She
argued that Realty was vicariously liable on the basis that Simone was the LLC's
managing member, and he was on the premises in that role, as well as in his
individual capacity and as Creations' sole shareholder. In support of her
vicarious liability argument, Russo relied on Zukowitz v. Halperin, 360 N.J.
Super. 69 (App. Div. 2003), which we discuss below.
In the course of oral argument, Russo's counsel effectively abandoned her
common law absolute liability claim by conceding that Contessa had no "vicious
6
The trial court had previously denied Russo's application for such a finding in
the form of a motion in limine, concluding it should be presented as a summary
judgment motion.
7
Realty now characterizes its cross-motion as one for summary judgment.
However, Realty's proposed form of order described the motion as one for
dismissal. Furthermore, Realty has not provided a "statement of all items
submitted to the court on the summary judgment motion," nor has it included
such items in the appendix, as Rule 2:6-1(a)(1) requires. The record only
includes Russo's statement of material facts in support of her motion for partial
summary judgment of liability, and Realty's response.
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propensities." See DeRobertis v. Randazzo, 94 N.J. 144, 153 (1983) (stating
that to impose absolute liability at common law, a plaintiff had to prove
knowledge or reason to know of a dog's vicious propensities). However, Russo
did not abandon her separate negligence-based claim. See id. at 156, 158
(distinguishing between common law claim for absolute liability based on a
knowledge of vicious propensities, and negligence-based claim).
In opposing the motion, Realty argued that Russo did not satisfy the
Statute because she was not lawfully in the area where she was bitten, once she
was allegedly warned not to go near the dog. Assuming liability under the
Statute, Realty argued that Simone, and at most, Creations were liable. Realty
noted there was no employment relationship between Realty and Simone, and
the LLC's mere ownership of the building was insufficient to render it
vicariously liable. Realty argued that when the bite occurred, Simone was
engaged in furthering the business purpose of the jewelry store, not the property
owner. Realty argued that it was entitled to dismissal of the complaint on the
same grounds.
The court found Simone, Creations, and Realty strictly liable. In a terse
statement of reasons appended to its order granting partial summary judgment,
the trial court stated:
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Defendant Simone is [s]trictly [l]iable . . . . Further,
Creations by Stefano, Inc. and Platinum Realty Group
[are] found vicariously liable. In Zukowitz v.
Halper[i]n, 360 N.J. Super. 69 (App. Div. 2003), the
dog bite statute was inapplicable to establish direct
liability on the [d]efendant [l]andlord as the [d]efendant
[l]andlord did not own the dog that bit [p]laintiff. Here,
[d]efendant [l]landlord owns the dog. The dog owner
was the managing member.
The court included the same reasoning in its order denying Realty's cross-motion
to dismiss, adding that the dog was registered at the business location, where the
bite occurred.
In the subsequent trial on damages, the jury awarded Russo $107,500, and
the court entered judgment for $113,430.32, including $5,930.32 in pre-
judgment interest. This appeal followed. 8
II.
We review de novo the grant of partial summary judgment, and apply the
same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J.
320, 330 (2010). We review the motion record to determine if there are genuine
issues of fact that would prevent granting judgment as a matter of law. Brill,
142 N.J. at 540; R. 4:46–2(c). We also review de novo the trial court's denial of
8
Russo cross-appealed, seeking a new trial on damages, based on various
evidentiary and trial errors. However, after oral argument, she filed a stipulation
dismissing the cross-appeal.
A-0663-18T1
8
Realty's motion to dismiss. Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019).
At the outset, we reject Realty's contention that there were disputed issues
of fact preventing a finding that Simone was strictly liable under the Statute.
There are three elements of a claim under the Statute:
First, the defendant must be the owner of the dog.
Second, the dog must have bitten the injured party.
Finally, the bite must occur 'while such person is on or
in a public place, or lawfully on or in a private place,
including the property of the owner of the dog.'
[DeRobertis, 94 N.J. at 151 (quoting N.J.S.A. 4:19-
16).]
In response to Russo's statement of material facts, Realty admitted each
element. We reject Realty's contention that Russo was not lawfully on the
property because she allegedly was warned not to pet the dog. Realty is bound
by its admission in response to Russo's statement of material facts that she was
lawfully on the premises. See R. 4:46-2(b). Furthermore, the video-recording
clearly indicates that Russo remained inside the customer area. Even assuming
an employee opined that she did not think it was a "good idea" for Russo to
approach the dog, that statement falls short of withdrawing Russo's permission
to be in the customer area near the dog. See DeRobertis, 94 N.J. at 152 (stating
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that "permission extends to all areas that the individual may reasonably believe
to be included within its scope").
We also reject Realty's argument that even if strict liability attaches,
liability must be reduced by Russo's own alleged negligence. More than mere
negligence is required to reduce a strictly liable defendant's comparative fault;
the defendant must prove the plaintiff's conduct constituted "an unreasonable
and voluntary exposure to a known risk." Cartel Capital Corp. v. Fireco of N.J.,
81 N.J. 548, 563 (1980). In a dog bite case under the Statute, that standard
requires a defendant prove that a plaintiff has "voluntarily and unreasonably
come[] within reach of an animal which he [or she] knows to be dangerous, or
intentionally irritates or provokes it . . . ." Pingaro v. Rossi, 322 N.J. Super.
494, 505 (App. Div. 1999). Put another way, a "defendant must show that [the]
'plaintiff knew the dog had a propensity to bite either because of the dog's known
viciousness or because of the plaintiff's deliberate acts intended to incite the
animal.'" Id. at 504-05 (quoting Budai v. Teague, 212 N.J. Super. 522, 525 (Law
Div. 1986)).
In Pingaro, we reversed the trial court's determination that comparative
negligence applied where a meter reader, who erroneously believed a dog was
not present, entered a residential backyard and was bitten, notwithstanding she
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knew a "bad dog" lived there, a sign warned "Beware of Dog," and her employer
advised her not to enter yards until she was sure dogs were restrained. 322 N.J.
Super. at 501-06. In Budai, a dog bit a dog-sitter after she touched the dog's
irritated skin, in an apparent effort to inspect it. Although the plaintiff was
"apprehensive about the dog" when she arrived, the dog had never bitten anyone
before, and the dog-sitter had visited the house several times before and petted
the dog without incident. 212 N.J. Super. at 525-26.
Even extending Realty all favorable inferences, it did not meet the
standard we articulated in Pingaro. Assuming an employee told Russo she did
not think it a "good idea" to approach Contessa, Russo did not know the dog was
dangerous, nor did she deliberately provoke it. Rather, she believed it was safe
to approach, with her hand open unthreateningly. The dog had no violent
propensities. Russo had interacted safely with the dog before. At most, it was
negligent for Russo to approach the barking dog. But, negligence is not enough.
In sum, the trial court correctly held that Simone was strictly liable for Ru sso's
damages under the Statute.
Consequently, Realty's appeal from the grant of summary judgment
requires us to address the question we expressly avoided in Zukowitz, namely,
"whether strict liability imposed by law against a dog owner can form the basis
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for imposing vicarious liability on the dog owner's employer" or any other
principal on whose behalf the owner was acting. 360 N.J. Super. at 73. The
plaintiff in Zukowitz sought to hold her landlord liable for injuries she suffered
when the superintendent's dog bit her as she stood outside the superintendent's
apartment. We reversed the dismissal of the plaintiff's vicarious liability claim
based on the superintendent's negligence. Id. at 74. However, we declined to
address the question of vicarious liability under the Statute, because the plaintiff
did not pursue her strict liability claim. Id. at 73.
We reach the question here and determine that a principal may be
vicariously liable if an agent, acting in the scope of his or her authority, becomes
strictly liable for a dog bite under the Statute. We discern no reason why
vicarious liability should not apply under the Statute, inasmuch as vicarious
liability has been applied to a dog bite claim under the common law. See Barber
v. Hochstrasser, 136 N.J.L. 76, 79 (Sup. Ct. 1947). A dog-bite-plaintiff under
the common law could seek to establish "absolute liability," upon proving that
the owner knew or had reason to know of the dog's violent propensities; and a
plaintiff could maintain an action grounded in negligence, without proving such
knowledge. See DeRobertis, 94 N.J. at 153-58 (explaining the two claims). In
Barber, the court held that a wife's knowledge of her dog's violent propensities
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could be imputed to her husband based on principles of agency, thereby
rendering the husband liable for the damages caused when the wife's dog bit the
plaintiff. "The question is essentially one of agency. The knowledge of the wife
is imputable to her husband only if acquired by her while acting as his agent in
relation to matters within the scope of her authority." Barber, 136 N.J.L. at 79.
Instructively, in Benjamin v. Corcoran, 268 N.J. Super. 517, 527 (App.
Div. 1993), we held that the New Jersey Firemen's Home could be vicariously
liable under the Tort Claims Act for the damages caused by the bite of a dog
owned by a husband and wife — the assistant superintendent and the director of
nursing — who lived on site. We emphasized that liability was based on the
employer-employee relationship, not a landlord-tenant relationship. The fact
that the defendants owned the dog as a family pet did not preclude vicarious
liability. "The appropriate question is not whether it was in the scope of their
employment to own a dog, but rather, whether it was within the scope of [their]
. . . employment to keep the premises safe." Id. at 528.
The Statute was enacted in 1933 to remove the common law scienter
requirement regarding a dog's violent propensities. See DeRobertis, 94 N.J. at
151; see also Tanga v. Tanga, 94 N.J. Super. 5, 8 (App. Div. 1967) (recognizing
"legislative concern with the prior apparent barrier to recovery constituted by
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the dog owner's lack of knowledge"). There is nothing in the statute that
precludes imposition of vicarious liability that was available at common law.
Furthermore, to construe it narrowly to do so would undermine its evident
remedial purpose to broaden the grounds for assigning dog bite liability. See
Gross v. Dunham, 91 N.J. Super. 519, 522 (App. Div. 1966) (stating that the
Statute is "remedial legislation entitled to a liberal interpretation").
Having determined that vicarious liability may in theory be imposed, we
turn to whether Russo established, as a matter of law, that it should be imposed,
justifying summary judgment; or whether Realty established, as a matter of law,
that it could not, justifying dismissal. We conclude neither party was entitled to
the relief sought in their respective motions.
"[T]he doctrine of respondeat superior recognizes a vicarious liability
principle pursuant to which a master will be held liable in certain cases for the
wrongful acts of his servants or employees." Carter v. Reynolds, 175 N.J. 402,
408 (2003). "It is well established that traditional vicarious liability rules
ordinarily make principals or employers vicariously liable for acts of their
agents or employees in the scope of their authority or employment." Meyer v.
Holley, 537 U.S. 280, 285 (2003). The Restatement (Second) of Agency
§219(1) (Am. Law. Inst. 1958), which our Court has cited favorably, Carter, 175
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N.J. at 408-09, states that "[a] master is subject to liability for the torts of his
servants committed while acting in the scope of their employment."
These principles apply to the relationship between Realty and Simone, as
he is its managing member. A limited liability company like Realty is a legal
entity apart from its members. See 3519-3513 Realty, LLC v. Law, 406 N.J.
Super. 423, 426 (App. Div. 2009) (applying the distinction between member and
entity). In that respect, it is like a corporation — "an artificial entity that lacks
the ability to function except through the actions of its officers, directors, agents,
and servants." Printing Mart-Morristown, 116 N.J. at 761.
As for the entity's liability for its agent's wrongs, "[a] corporation . . . like
a natural person, is bound only by the acts of an agent done within the scope of
his authority." Budelman v. White's Exp. & Transfer Co., 49 N.J. Super. 511,
521 (App. Div. 1958). The same is true of an LLC under our limited liability
statute, which follows the Revised Uniform Limited Liability Act. "LLCs
formed under this act and corporations are subject to the same principles for
attributing to the entity the conduct of those who act or purport to act on the
entity's behalf." Unif. Ltd. Liab. Co. Act, § 301 cmt. to subsec. (a) (amended
2013). "An LLC may be held liable under general agency law or the provisions
of LLC statutes for wrongful acts of members or managers in the scope of the
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business or their employment." 1 Ribstein and Keatinge on Limited Liability
Companies § 11:13 (2020).
As Realty's managing member, Simone was vested with broad authority
to act for the company. In general, when an LLC opts to be managed by one or
more managing members, the managing member "exclusively" decides "any
matter relating to the activities of the company." N.J.S.A. 42:2C-37(c).9 Thus,
Realty acts through Simone and, when he commits a tort while acting in the
scope of his authority as managing member, or in furtherance of Realty's
business, then Realty is liable.
Russo contends that when Simone was working inside the building Realty
owned, he necessarily acted as an agent for Realty, justifying imposing liability
9
Although an LLC member — as distinct from a managing member — is not
an agent of an LLC "solely by reason of being a member," other law may also
"impos[e] liability on a limited liability company because of the person's
conduct." N.J.S.A. 42:2C-27. Thus, "given the proper set of circumstances . . .
the doctrine of respondeat superior might make an LLC liable for the tortious
conduct of a member (i.e., in some circumstances a member acts analogously to
a 'servant' or 'employee' of the LLC)." Unif. Ltd. Liab. Co. Act, § 301 cmt. to
subsec. (b) (amended 2013).
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on Realty. This is plainly not so. Simone's physical presence alone does not
suffice.10
On the other hand, we reject Realty's argument that it is not liable because
Simone owned the dog, not Realty; and Simone was at most engaged in
Creations' business affairs when the bite occurred. Simone's acts on behalf of
Creations does not preclude his acting on behalf of Realty as well.
An agent may wear the "hats" of two masters at the same time. "[A] single
act may be done to effect the purposes of two independent employers."
Restatement (Second) of Agency § 226 cmt. a (1958). The two masters need
not be "joint employers" for a person to be a servant of both, "if the act is within
the scope of his employment for both." Ibid.; see also Abraham v. United States,
932 F.2d 900, 903 (11th Cir. 1991) (stating that "a single act may be done with
the purpose of benefiting two masters and both may then be liable for the
10
Notably, Russo does not contend — at least explicitly — that Realty, as a
limited liability company — was a sham or alter ego of Simone, justifying the
court to engage in "reverse veil piercing" and hold the LLC liable for the actions
of its managing member by rejecting the LLC's separate identity. See Sky Cable,
LLC v. DIRECTV, Inc., 886 F.3d 375, 385 (4th Cir. 2018) (interpreting
Delaware law to permit "reverse veil piercing[, which] attaches liability to the
entity for a judgment against the individuals who hold an ownership interest in
that entity" where the entity is a mere sham and alter ego of its sole managing
member). Realty is a domestic LLC operating in New Jersey, and we are aware
of no published case recognizing reverse veil piercing under New Jersey law.
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servant's negligence"). As we explained in Pelliccioni v. Schuyler Packing Co.,
140 N.J. Super. 190, 198 (App. Div. 1976), "The one servant serving two
masters situation arises when two employers share equally in the direct
supervision and control of one servant."
Nor is it dispositive that Simone — and not Realty — owned the dog. Just
as an employer may be vicariously liable for the tortious activity of an employee
operating his or her private vehicle while serving the interests of his or her
employer, Carter, 175 N.J. at 414-15, Realty conceivably may be vicariously
liable for the damages caused by Simone's personally owned dog, provided he
owned or controlled the dog at least in part to further Realty's interests.
Whether he did so is a fact question that the motion record does not
resolve. Realty admitted that it not only owned, but also controlled and operated
the property. Realty also admitted that there was no lease between Realty and
Creations, nor is there any evidence that Creations paid Realty rent. Thus, there
is evidence from which a jury could infer that Realty assumed or shared the
obligation to provide for the safety of visitors to the property, and to provide for
security of the property itself. The record includes evidence that Contessa
remained at the property when the store was closed, which would permit a fact -
finder to infer that the dog was present to protect Realty's real property, even if
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it was also present to protect Creations' property and employees, or simply to
provide Simone with canine companionship when Simone was present. In short,
based on the record before us, a jury could infer that Simone, acting in the scope
of his authority as managing member, owned and controlled the dog in service
of Realty's interests, thereby justifying imposing vicarious liability on Realty.
Therefore, we reverse partial summary judgment imposing liability on
Realty, and affirm the order denying Realty's motion to dismiss. We do not
retain jurisdiction.
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