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No Recovery for Bitten Broker (NJ)

June 29, 2018

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In <a href="http://blog.wcmlaw.com/wp-content/uploads/2018/06/Ward-v.-Ochoa.pdf">Ward v. Ochoa</a>, plaintiff allegedly serious injuries after being attacked by a pitbull while performing an appraisal of a property. She brought suit against defendants Century 21 Worden &amp; Green and Ken Song for her injuries. The trial court granted summary judgment in favor of defendants and dismissed plaintiff’s claims, leading to her subsequent appeal.
Song had entered into a listing agreement with the homeowners with a view toward conducting a short sale of their foreclosed residential property. Song, a realtor employed by Century 21, was the listing agent and the buyer’s agent. It was Song’s responsibility to ascertain the number and breed of the dogs the homeowners owned during the period of the listing agreement. Plaintiff, a licensed real estate appraiser, was assigned to inspect and appraise the subject property.
Plaintiff was contacted directly by Land Safe Appraisal Services to perform the appraisal of the property. She was unable to get in touch with the residential property owners, so she contacted Song to facilitate making the appointment for the appraisal. At her deposition, plaintiff testified that no inquiry was made as to whether the home was owner occupied or if dogs were on the premises. However, Song informed plaintiff that there was a dog on the premises prior to the date of the appraisal. The homeowners contended that their dog did not have any vicious propensities prior to this incident.
When plaintiff arrived at the property for the appraisal, there were two dogs crated in the kitchen and an older, lethargic pitbull was in the bedroom. Plaintiff described the older dog as calm and docile and did not object to the presence of any of the dogs or request their removal. The first half of the appraisal was without incident. As plaintiff examined the exterior of the home, she observed that the dogs were now out of their crates and on the deck making noise. As plaintiff walked toward her car, one of the pitbulls charged her and she ran away in fear. At the foot of the driveway, plaintiff was repeatedly attacked by one of the pitbulls which resulted in her sustained a fractured radius and nerve damage requiring surgery.
It was undisputed that plaintiff never had a written agreement with Century 21 or Song. Further, the court found that the defendants were in compliance with the Century 21 internal policy to ensure that pets were appropriately secured by homeowners, as evidenced by the fact that the dogs were restrained and crated at the time plaintiff arrived. The trial judge determined that plaintiff could not maintain a negligence claim because no duty of care existed between the parties.
The appellate court on review determined that plaintiff was injured as a result of her employment with P&amp;R. The record was devoid of any evidence to suggest that plaintiff was a “customer” of Century 21 or Song. Consequently, there was no legal relationship between the parties and no privity of contract. As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed with prejudice.  Thanks to Steve Kim for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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