A school district was not liable to a woman attacked by a stray dog on its property on a weekend, since there was no duty of care to protect her, the New Jersey Supreme Court says.
Although the principal had received notice of similar incidents on or near school property, he had no ability to monitor the property on the weekends to prevent attacks on people who wandered onto the grounds, the court held Wednesday in Robinson v. Vivirito.
“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,” Judge Mary Cuff wrote for the unanimous court.
On Sept. 9, 2009, a Saturday, Charlotte Robinson walked across the grounds of Dr. J.P. Cleary Middle School in Buena Borough, Atlantic County, taking a shortcut to a diner. She was attacked by a dog that had broken free from a chain on a nearby lot.
Robinson sustained severe cuts to both legs and ribs and a torn meniscus in her left knee that required surgery. She sued the Buena Regional School District, the dog’s owner, Frankie Keller, and the owner of the house Keller lived in, Frank Vivirito.
Robinson claimed principal Kenneth Nelson was on constructive notice of the situation because he had been sent a letter from two people attacked by the dog while walking near the school.
Atlantic County Superior Court Judge Joseph Kane dismissed the claims against the Nelson and the district on summary judgment, but the Appellate Division reversed, finding a duty of care.
On the district’s appeal, the court said the public policy goals behind the Tort Claims Act preclude the principal and the school from being held negligent.
Cuff said the Legislature has chosen to impose strict liability on dog owners because they have the authority and opportunity to control the location and behavior of their dogs.
“When a stray dog enters the school yard on a weekend, any opportunity to intercede to protect third parties is absent,” she said. “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 school principal had no 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,” Cuff said.
Cuff also stressed that Robinson “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,” Cuff said.
“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.”
Robinson’s attorney, Melville Lide, of Vineland’s Radano & Lide, did not return a telephone call.
“The ruling reflects the intent of the Tort Claims Act,” says the school district’s attorney, Gregory Giordano, of Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey in Lawrenceville.
Had the Appellate Division ruling been upheld, “it would have extended the potential liability for school districts and their personnel in general for off-hours incidents involving animals or other hazards,” Giordano says.