The Intersection of the Law of Dogs

New Jersey and many other states have laws protecting people when they are bitten or attacked by a dog. In New Jersey, it is a strict liability statute if there is a bite. The statute in question is N.J.S.A. 4:19-16 which reads: “The owner of any dog which shall bite a person 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, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.” Further, if the property is one where the owner is a tenant and there is a landlord, the landlord can also be held responsible, but the distinction is that a Plaintiff has to establish that the landlord had prior knowledge of the viciousness of such dog or of a prior bite history to be held responsible. Specifically: “[u]nder the common law, ordinarily a landlord is not responsible for injuries caused by its tenant’s dog.” Hyun Na Seo v. Yozgadlian, 320 N.J. Super. 68, 71 (App. Div. 1999) (citing Cogsville v. Trenton, 159 N.J. Super. 71, 74 (App. Div. 1978)). The Hyun case declined to hold the landlord responsible finding “in the absence of proof that the landlord was aware of the dog’s vicious propensities, or perhaps that the dog was inherently vicious, liability should not be imposed upon the landlord.” Hyun Na Seo, supra, 320 N.J. Super. at 72. This concept has continued to be affirmed in subsequent cases. See Zukowitz, supra, 360 N.J. Super. at 69.

An emotional support animal (“ESA”) is a companion animal that provides a therapeutic benefit to individuals with emotional or psychological disorders. While not the same, not even close, to a service animal (which can only be a dog or a miniature horse), in the context of the landlord/tenant relationship, ESA’s are entitled to legal protections. This is because in New Jersey and many other states, landlords are legally required to provide reasonable accommodations to those with disabilities, including an accommodation for an ESA, pursuant to the Fair Housing Act (FHA) and the New Jersey Law Against Discrimination (NJLAD). This means that even if there is a no pet policy, a landlord MAY be required to make a reasonable accommodation and allow the ESA. I say may because if the ESA is determined to be an unreasonable accommodation, the landlord may not be required to allow the animal (this is still really an unsettled area where the landlord may choose not to potentially violate the NJLAD or FHA and allow the dog). The New Jersey Supreme Court has recently identified that the landlord and tenant must engage in a good-faith interactive dialogue to exchange information, consider alternative options, and attempt to resolve issues. In that case, the landlord refused to acknowledge and allow the requested emotional support animal, which led to litigation. See Players Place II Condominium Association, Inc. v. K.P. and B.F. (March 13, 2014)

Recently, an article in the New York Times has identified an intersection of the strict liability dog bite case law and ESA/disability discrimination law. The article describes a lawsuit filed in New York against dog owners and the landlord/property management related to claims that the Plaintiff sustained serious injuries when he was attacked and bitten by an “aggressive ESA” owned by another tenant in the building. Quoting statements laid out in the complaint, the article details how this ESA had apparently repeatedly attacked and bitten tenants, employees, and workers coming into the building, but that the landlord/property management company had failed to take action, and implying that the reason was because of the concern of litigation for violating that state’s law against discrimination statutes. As this is a newly filed case, we don’t have an answer as to how this will play out, because tenants and employees should be free from hazards such as a repeat offender animal, regardless of the ESA status, but the protections embedded in discrimination laws are designed to strongly protect those who are being discriminated against, including as a result of their disability.

If you have been attacked or bitten by a dog, please consider reaching out. Similarly, if you believe you have been discriminated against as a result of a disability because you have an ESA, especially in regard to housing, we are happy to speak to you. Contact Drinkwater & Goldstein, LLP at (856) 753-5131 or via email at info@drinkwatergoldsteinlaw.com or through our website, www.drinkwatergoldsteinlaw.com and fill out our contact form. As always, if you have any questions or topics you would like to see covered, let me know and you just might see it in a future post.