Dogs Will Be Dogs – Posted Rules at Dog Run Merely a Suggestion? (NJ)
In Freed v. Bastry, the New Jersey Superior Court, Appellate Division, considered whether park guidelines for an off-leash dog area imposed a duty upon dog owners to other park goers in the off-leash dog area. The case arose after Defendants’, Linda and Frank Bastry (the “Bastrys”), over-eager, male golden retriever ran into the plaintiff, Janet Freed (“Freed”), during playtime with Freed’s female golden doodle. The resulting fall caused Freed to suffer a broken leg.
Posted at the off-leash area entrance were guidelines prohibiting dogs “with a history of dangerous or aggressive behavior” and “puppies under [four] months old” and stating, “Dogs over [six] months old must be spayed or neutered.” The Bastrys’ golden retriever was seven and a half months old and not neutered. The retriever also had yet to receive obedience training. Freed’s expert in canine behavior opined that un-neutered dogs tend to be more aggressive towards humans and other dogs than their neutered counterparts. The expert made particular note of Bastrys’ deposition testimony that the retriever had become “very excited” after the ride in the car. The expert concluded that had the retriever been neutered prior to the visit to the dog park, it would have been less aggressive and thus less likely to have injured Freed.
On summary judgment, Freed argued that the guidelines were put in place to prevent such aggressive dog behavior. The trial court disagreed, refusing to impose a duty on dog owners to monitor their dog’s behavior in an off-leash area, when the purpose of an off-leash area is to allow dogs to roam free. On appeal, the Court agreed with the trial court’s conclusion. In her appeal, Freed argued that the posted guidelines had the full force of a statute or enacted regulation, and as a result, Bastrys’ violation of the posted guidelines was negligence per se. Although, as the Court noted, Freed never provided evidence from the area Board adopting the guidelines as regulations or imposing penalty for a violation, the Court agreed with Freed that the guidelines may have been designed to prevent aggression from older dogs. However, the Court found the guidelines were not intended to limit the risk of normal dog behavior and playtime or limit, as succinctly stated by the Court, “[the risk of] one dog, running after another dog and, in the process, colliding with a human.”
Despite breaking the rules and injuring someone, the courts would not impose a duty on the dog owner in an off-leash area. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Vincent Terrasi with and questions or comments.