My dog sometimes gets rambunctious and runs between the legs of guests. We can generally control this, and try to warn people to be on their guard on entering our house. Being a lawyer, I suppose I have always had in the back of my mind the question of whether I might be liable if somebody falls down and breaks a hip.
A recent decision by an appellate court in New Jersey provides some perspective on this issue for those of us who have overly friendly dogs. The fact that the dog’s owner was not liable in this particular case should not lead people who own “goosers,” “bumpers,” and “running through you” dogs to believe that they can never be liable when such demonstrations of interest or affection get out of hand.
A Longstanding Friendship
Rochelle Puzzutiello and Gail Wurster became close friends in 1995. They spoke on the phone daily and frequently spent nights at each other’s homes. Puzzutiello moved to Florida in 2004, but they continued their phone conversations nearly every day. Puzzutiello returned to New Jersey for holidays and kept her apartment in Audubon.
Wurster was diagnosed with cancer in early 2009 and Puzzutiello made plans to return to New Jersey as soon as Wurster was out of surgery. On March 23, 2009, Puzzutiello’s brother, Joseph Ezzi, drove her to Wurster’s home. On entering the house through the back door, Wurster’s dogs were at her feet and neither seemed excitable or unruly to Puzzutiello, and they remained calm while she unpacked.
The visit progressed without incident until Puzzutiello tripped over the younger dog, named Lucy, who weighed about forty pounds and was described by Puzzutiello as “lovable” and “very gentle.” The fall fractured Puzzutiello’s ankle. The incident was described by Wurster to an investigator as follows:
“The three of us [plaintiff, defendant and Ezzi] were in the living room area of my house, talking.... The dogs were overly excited I guess[ ] to see the guests in the house. And me, on my return home from the hospital[.] I was sitting in the chair and the two dogs were near [plaintiff] who was standing near the television, actually she was walking away from me. The smaller dog [Lucy] followed her and moved between her legs causing her to trip. She couldn't regain her balance and fell into the wall.... I knew she was injured seriously.... I want to say again that I felt terrible about this accident. I feel that it was the action of my smaller dog, Lucy when she placed herself between [plaintiff's] legs that caused her to trip.”
Trial Court Grants Summary Judgment
The trial court granted summary judgment to the defendant, stating:
“These are dogs. These are dogs that are walking around in their owner's home, their owner's back from the hospital, sitting—recovering from surgery. This is a family friend who's been in the company of the dogs many, many times. Whether the theory of liability here is that ... defendant should have known that the dogs were especially excitable and had a duty to protect the plaintiff by putting the dogs in some other room or controlling them or otherwise preventing them from causing this injury to the plaintiff[,][t]his is not a dog bite case. This is not a dog jumping on somebody. This is not a dog walking in an unruly fashion. This is a dog in a house with its owner, with its friend, the plaintiff, who as the plaintiff is walking moves between [plaintiff's] legs and causes her to trip....
“The court finds as a matter of law that under those factual circumstances, the defendant had no duty of care to place the dogs somewhere other than in the living room. The plaintiff came to meet with [defendant] and while the court ... feels badly that the plaintiff was injured, the court can find no duty of care on the part of the owner who was recovering from abdominal surgery, who was in her house, who was with her dogs. The—sadly, the plaintiff tripped. She tripped over a dog that was walking around in a room that the dog lived in.”
Appellate Court Reviews the Facts and Law
Puzzutiello appealed, arguing there was a genuine issue of material fact and that summary judgment should not have been granted. The New Jersey appellate court noted that when “there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a ‘genuine’ issue of material fact…” under New Jersey evidentiary rules (quoting Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 666 A.2d 146 (1995)).
The appellate court, in a decision written by Judge Linda Baxter, provided its own summary of the facts, stating:
“[W]e conclude that Lucy moved between plaintiff's feet as plaintiff was returning to the sofa. However, there is no evidence in the record warranting a conclusion that Lucy, the dog that tripped plaintiff, was in any way unruly, excitable or out of control on the day in question. Plaintiff herself described Lucy as a “gentle” and “lovable” dog, and plaintiff acknowledged that she had never had any concerns about Lucy during any of the numerous occasions she had visited defendant. Although plaintiff stated that defendant's other dog Gabby was a “jumper,” the record is devoid of any evidence remotely suggesting that Lucy, who was the cause of plaintiff's injury, had ever acted in a manner that endangered plaintiff or anyone else. Nor was there any indication that on the day in question, Lucy had been doing anything other than sitting at defendant's feet prior to the moment when the dog apparently stood from that position and began to follow plaintiff back to her seat on the couch. We reject plaintiff's claim that there were disputed issues of fact that required the judge to deny defendant's motion.”
The court noted that Puzzutiello was not claiming that Wurster should have put the dogs in another room, only that Wurster should have warned her the dogs were unruly or excitable. The court noted that while liability might have applied for a dog bite, there was no bite here. The court noted that the question was whether landowner liability applied, but a “host has a duty to warn a social guest of a dangerous condition on the property only when the host has actual knowledge of a dangerous condition of which the guest is unaware.” Here, Puzzutiello had been to Wurster’s home many times and “was familiar with defendant’s dogs, their demeanor, and the fact that they could move, and were frequently ‘in the say’ and ‘wanted to be the center of attention.’”
The court elaborated:
“[P]laintiff here knew a dog was present and that the dog might move from where it was sitting. Because plaintiff was aware of the dog's presence in the home, and in the specific room where plaintiff was situated, defendant had no duty to warn her that the dog might move, as this was a readily observable condition of which plaintiff had knowledge. Moreover, in light of plaintiff's concession that Lucy had been acting 'fine' during plaintiff's entire visit, there was nothing about the dog's behavior that could have triggered any duty on the part of defendant to warn plaintiff that she should be especially careful about the dog. We therefore conclude that under the facts presented, there was no duty to warn plaintiff, who was a social guest, that the dog Lucy posed any danger to plaintiff.”
The appellate court concluded that the trial court had not erred in granting summary judgment, and affirmed.
One would like to know if the two remained friends, or if the real defendant was an insurance company, but nothing outside of the court record seems, at least so far, to have reached the media.
Different Facts Might Produce Different Results
Those of us with friendly pets should recognize that there might be circumstances where summary judgment would not be granted. If you know your dog has a tendency to push people over, and the guest does not know this, you have a duty to give a warning. Although the situation is not identical to a bite, liability might still attach. Don’t assume that an injury will always be overlooked, either by a litigious guest or a court.
Although the facts of this case involved a plaintiff visiting the defendant in her house, one could easily imagine an overly rambunctious dog at a dog park causing an injury to another user. A google search for "over friendly dog" + "personal injury" suggests that a number of lawyers specializing in dog bites now devote a portion of their practices to representing plaintiffs injured by overly friendly dogs.
If you have such a dog, it’s probably worth asking your insurance provider about the extent of your coverage for pet incidents. Bites are usually covered in general homeowners’ policies, but your insurer may not have thought about the fact that a friendly dog can sometimes be as injurious as an aggressive dog.
Puzzutiello v. Wurster, 2011 WL 5169432 (Ct. App. 2011)