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Benjamin v. Corcoran12/1/1993
[268 NJSuper Page 519] Plaintiffs, Matthew Benjamin, an infant by his Guardian ad Litem, James H. Benjamin, and James H. Benjamin, individually, appeal the dismissal on summary judgment of their complaint against defendant, the New Jersey Firemen's Home (N.J.F.H.). Plaintiffs sued for injuries sustained by Matthew Benjamin when he was bitten on the upper arm by the dog of Jeanette and James Corcoran while on the grounds of N.J.F.H. Jeanette and James Corcoran were named as defendants when the action was instituted on October 17, 1990. On February 21, 1992, N.J.F.H. filed a motion for summary judgment, which plaintiffs opposed. On May 22, 1992, the Law Division Judge heard oral argument after which he granted the N.J.F.H.'s motion for summary judgment. We denied plaintiff's motion for leave to file an interlocutory appeal by Order dated June 23, 1992. On August 31, 1992, an Order of
Dismissal, without prejudice, was entered as to the Corcorans. Plaintiffs then appealed as of right.
The facts are not complicated. On December 30, 1989, Matthew Benjamin, age nine, was sleigh riding on the grounds of N.J.F.H. in Boonton. He was in an area near the nursing home building and its driveway when he was bitten on the upper arm by a dog that had been purchased as a family pet by James Corcoran in 1985.
Mr. Corcoran had been the assistant superintendent of the N.J.F.H. since 1980. He lived in a house on the premises, rent free, with his wife, Jeanette, who was the director of nursing of the N.J.F.H. Mr. Corcoran died in 1988, prior to this incident. His wife continued to work at the N.J.F.H. and to live in the house on the grounds with the dog. There were two reported previous dog bites by the Corcoran dog. On one occasion the dog bit a child. On a second occasion the dog bit an adult. One of the incidents was on the public sidewalk adjacent to the N.J.F.H. premises, and the other was not near the premises. Both victims were treated in the emergency room at St. Clare's Hospital in Denville. These events took place prior to Mr. Corcoran's death.
Plaintiffs argue that the trial Judge erred in granting summary judgment to the N.J.F.H. Plaintiffs contend that the N.J.F.H. is not a public entity exempt from tort liability under Title 59. They assert that even if the N.J.F.H. is a public entity, a jury could have found that the Corcorans were negligent in not removing the dangerous dog from the grounds or taking precautions to protect others from the dog, and that this negligence was imputable to N.J.F.H. as their employer based upon vicarious liability. N.J.S.A. 59:2-2. Plaintiffs also maintain that the N.J.F.H. is not immune from liability under the Landowner's Liability Act, N.J.S.A. 2A:42A-2 to -8, since the property is located in a densely-populated area.
Defendant N.J.F.H. argues that the trial Judge properly held that it is a public entity and that it was not vicariously liable because ownership of the dog was not within the scope of the
Corcorans' employment. N.J.F.H. also contends that the trial Judge properly found that the N.J.F.H. was immune from liability under the Landowner's Liability Act because Matthew was sleigh riding on the property, thereby using the property for recreational purposes.
Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment as a matter of law." R. 4:46-2; Judson v
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