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Bonay Goldhagen v. Susan Pasmowitz and Bernice Brooks
Date: 03-16-2022
Case Number: A-17-20
Judge: Anne Patterson
Court:
SUPREME COURT OF NEW JERSEY
On appeal from The Superior Court,
Appellate Division.
Plaintiff's Attorney:
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Defendant's Attorney: Andrew Siegeltuch
Description:
The Dog Bite Statute, N.J.S.A. 4:19-16, imposes liability on dog owners
in personal injury actions arising from dog bites in certain settings, "regardless
of the former viciousness of such dog or the owner's knowledge of such
viciousness.†It establishes a strict liability cause of action that a plaintiff
injured by a dog bite may assert against the dog's owner if the plaintiff proves
the elements set forth in the statute.
This appeal arose from an incident in which a dog owned by defendant
Susan Pasmowitz bit plaintiff Bonay Goldhagen, causing a severe facial injury.
At the time of the incident, plaintiff was a groomer and kennel assistant
employed at a pet care facility where defendant boarded her dogs. It is
undisputed that defendant told plaintiff and the facility's manager that the dog
"nipped†or "bit†her son and that she urged caution in handling the dog.
Nevertheless, plaintiff contends that defendant concealed the fact that the dog
had previously bitten defendant in the face and downplayed the risk that the
dog presented.
Plaintiff asserted a claim based on the Dog Bite Statute, as well as
common-law claims for absolute liability and negligence. Granting summary
judgment in favor of defendant, the trial court relied on the Appellate
3
Division's decision in Reynolds v. Lancaster County Prison, 325 N.J. Super.
298, 323-26 (App. Div. 1999). In Reynolds, the Appellate Division recognized
an exception to statutory liability under the Dog Bite Statute. Applying
principles of primary assumption of the risk, the court held that when the
plaintiff is an independent contractor who agrees to care for the defendant's
dog, the plaintiff must show that the owner "purposefully or negligently
conceal[ed] a particular known hazard†for liability to attach. Id. at 323-24
(quoting Nelson v. Hall, 211 Cal. Rptr. 668, 673 n.4 (Ct. App. 1985)). The
trial court in this matter viewed Reynolds to bar plaintiff's claims, given her
status as a professional employed by a kennel to care for the dog, and
dismissed her claims.
Plaintiff appealed. The Appellate Division applied the independent
contractor exception to the Dog Bite Statute under Reynolds and affirmed the
grant of summary judgment.
We granted certification. We affirm in part and reverse in part the
Appellate Division's judgment and remand the matter to the trial court for
further proceedings. We disagree with the Appellate Division's holding in
Reynolds that the Dog Bite Statute's strict liability standard does not apply to
the claim of an independent contractor who agrees to care for a dog. See ibid.
The statute's plain language reveals no legislative intent to recognize an
4
exception to strict liability under the Dog Bite Statute for any category of
injured plaintiffs. See N.J.S.A. 4:19-16. Accordingly, we reverse the
Appellate Division's judgment affirming the trial court's grant of summary
judgment to defendant based on the Reynolds independent contractor
exception.
We hold, however, that the Comparative Negligence Act, N.J.S.A.
2A:15-5.1 to -5.8, applies to plaintiff's strict liability claim under the Dog Bite
Statute, and that plaintiff's status as a professional experienced in the care of
dogs is relevant to an allocation of fault under the Act. Our decision reversing
the grant of summary judgment based on Reynolds is without prejudice to the
parties' right to file additional motions for summary judgment addressing
plaintiff's statutory claim based on comparative negligence or other grounds.
If the case proceeds to trial, defendant may present evidence regarding
plaintiff's alleged negligence to the jury and seek an allocation of fault to
plaintiff.
Turning to plaintiff's common-law claims, we agree with the trial court
and the Appellate Division that genuine issues of material fact in the record
warrant the denial of plaintiff's motion for partial summary judgment.
Without prejudice to any further applications that the parties may present to
the trial court regarding the common-law claims on remand, we affirm the
5
Appellate Division's decision denying partial summary judgment with respect
to those claims.
I.
A.
We summarize the facts based on the summary judgment record
presented to the trial court.
In 2008, defendant adopted a Rottweiler mix, then ten to twelve weeks
old, and named him Louie. When fully grown, the dog weighed 120 to 130
pounds.
Defendant testified at her deposition that in 2011, as she attempted to
remove a tick from Louie's ear, the dog bit her left cheek, leaving her with a
laceration that required thirty stitches. The hospital that treated defendant
contacted her municipality's animal control officer, who investigated the
incident. Defendant also testified that the dog would get upset when his nails
were clipped or he was approached from behind during visits to the
veterinarian and that, as an adult dog, he was routinely muzzled and frequently
sedated when he was at the veterinarian's office.
Defendant testified that in late June or early July 2015, she called Scott
Winston, owner of Atlantic City Pet Care Kennel, to arrange for Louie and her
other dog, Otis, to be boarded while she was on vacation. Defendant stated
6
that in that telephone call, Winston did not ask whether the dogs had been to a
kennel before, and that he did not request -- and she did not volunteer -- any
information about the behavior of her dogs.
On July 1 or 2, 2015, defendant dropped Louie and Otis off at Atlantic
City Pet Care Kennel for boarding. Defendant testified that when she arrived
at the boarding facility, she met with Winston, plaintiff, and another kennel
employee. She stated that she told them that the dogs could be boarded in the
same kennel but warned them that Louie should be muzzled, that they should
avoid agitating him, and that they should not clip his nails or bathe him.
Defendant testified that she told Winston, plaintiff, and the other employee
that "you need to be leery of this dog.†Defendant does not contend that she
told plaintiff and the other staff members at the boarding facility that Louie
had previously bitten her face.
Defendant testified that in response to those warnings, plaintiff was
"dismissing†and "placating†her, and that she "actually hugged me, patted my
back and said, don't worry, mommy, I've been around dogs, I know how to
handle dogs.†According to defendant, plaintiff "just was very dismissive to
me, kind of laughing at me that I'm being overly dramatic regarding my dog.â€
At her deposition, plaintiff testified that defendant told her that "the dog
doesn't like its nails cut†and that she had assured defendant that "we wouldn't
7
bother cutting its nails, no problem.†Plaintiff also testified that defendant told
her that the dog had previously "nipped†defendant's son, but later commented
that "all I remember the owner saying was the dog bit my child, period.â€
When she dropped her dogs off at the boarding facility, defendant spoke
with Winston to complete an intake form that would be displayed outside the
kennel housing Louie and Otis. The intake form, a printed form with
handwritten notations, indicated that defendant's dogs "Must eat separatelyâ€
-- a notation underlined and emphasized with an asterisk -- that staff should
"sit with Otis to eat,†and that they "Must Muzzle for nail clippings.†It also
included a comment that Louie should be walked in the "backyard only!â€
Plaintiff admitted that she did not review the intake form for defendant's dogs
until after Louie bit her.
Plaintiff described the dog-bite incident.1
According to plaintiff, a
kennel staff member told her that "the dogs needed to be given a worm pill and
needed to be fed separately.†She testified that "there was a problem in that
because we were very busy, we only had one accommodation for the dogs, so
1
The record is inconsistent with regard to the date of the dog-bite incident.
Plaintiff testified that it occurred on the day that defendant dropped off her
dogs at the boarding facility, which would be July 1 or July 2, 2015, but
alleged in her complaint that it occurred on July 4, 2015.
8
in order to separate them somebody would have to go in and sit with one of
them, which is mentioned on the front page [of the intake shee t].â€
Plaintiff stated that because she had to give the dogs their pills, she went
into the kennel, put the dogs' food bowls down, and put a pill in each dog's
bowl. Plaintiff testified that she "sat down, looked at Louie, turned around,
looked at Otis just to make sure they were getting their noses into their food,
and I was sitting down next to Otis, and I was looking at them.†She stated
that "[w]hen I turned around to look at Louie, he was in my face biting my
lip.†Plaintiff stated that the dog also bit her left arm.
Winston drove plaintiff to a hospital emergency room. There, medical
staff determined that plaintiff had a "significant and severe injury to the right
upper lip, cupids bow, nasal base and pyramid, right lower lip, and right oral
commissure,†requiring "a prolonged repair.†Plaintiff testified that she
continues to experience numbness and pain that is "never going to go away.â€
The next day, Winston called defendant to report that Louie had bitten
plaintiff. Defendant reported the incident to animal control. The dog was
euthanized.
9
B.
1.
Plaintiff filed this action against defendant in the Law Division.
2
She
alleged that in the course of her employment, she "was bitten in the face by the
dog known as Louie while trying to have the dog swallow two medication pills
that were mixed in with dog food.†Plaintiff further alleged that defendant was
"negligent and/or strictly liable for the actions of the dog in question and knew
or should have known that said dog may bite people.†Defendant filed an
answer, asserting plaintiff's negligence as an affirmative defense.
After discovery, the parties cross-moved for summary judgment pursuant
to Rule 4:46-2. In defendant's summary judgment motion, she relied on the
Appellate Division's decision in Reynolds to argue that plaintiff, a
professional in the care of dogs, could not assert a claim under the Dog Bite
Statute. In her cross-motion, plaintiff sought partial summary judgment on the
question of liability with respect to her statutory and common-law claims.
The trial court found that defendant told plaintiff that Louie had bitten
her son, but defendant did not disclose that the dog had bitten her in the face.
The trial court concluded that defendant "knew the dog was vicious and prone
2 Plaintiff initially named defendant's mother as a defendant, but later
dismissed the claims against her.
10
to biting people.†It further observed that plaintiff did not follow the
instructions on the intake form to feed Louie separately from Otis and to sit
with Otis as he ate.
The trial court declined to find that defendant's failure to disclose the
fact that the dog had bitten defendant in the face, requiring thirty stitches to
close the wound, was sufficient to create a genuine issue of material fact for
purposes of Rule 4:46-2. It concluded that plaintiff "had sufficient knowledge
based upon the fact that Louie bit a child and that fact was revealed
specifically by the defendant to the plaintiff.â€
The trial court found that plaintiff "was a long-time professional in this
industry, in this field,†and that in her employment at Atlantic City Pet Care
Kennel, plaintiff had the necessary experience "to know and appreciate this
dog's history and to take the necessary precautionary measures to safely
address the needs of a dog, as well as her own.†It viewed this case to be very
similar to Reynolds and ruled that the Reynolds exception to liability under the
Dog Bite Statute applied.
The trial court accordingly granted defendant's motion for summary
judgment dismissing plaintiff's claims and denied plaintiff's cross-motion for
partial summary judgment.
11
2.
Plaintiff appealed both of the trial court's decisions. She contended that
the assumption-of-risk exception to the Dog Bite Statute recognized in
Reynolds should not apply, that her alleged negligence was irrelevant to her
statutory claim, and that she was entitled to partial summary judgment on her
common-law claims.
The Appellate Division acknowledged that defendant did not mention to
plaintiff that Louie had bitten her, but stated that it was undisputed that
defendant made plaintiff aware of the dog's aggressive nature. The court
concluded that the principles articulated in Reynolds governed this case,
because plaintiff was a professional who agreed to care for defendant's dog,
and was aware of the risk that any dog, regardless of its previous behavior,
might bite an individual caring for it. It held that a reasonable factfinder could
reach only one conclusion: that plaintiff had sufficient warning that the dog
might bite her while she was caring for him.
The Appellate Division accordingly affirmed the trial court's grant of
summary judgment to defendant and the court's denial of plaintiff's crossmotion for partial summary judgment on the issue of liability with respect to
the common-law claims.
12
3.
We granted plaintiff's petition for certification. 244 N.J. 335 (2020).
We also granted the application of the New Jersey Association for Justice to
appear as amicus curiae.
II.
A.
Plaintiff urges us to hold that her claim meets the requirements of the
Dog Bite Statute and to reject the exception to strict liability under that statute
recognized by the Appellate Division in Reynolds. She contends that even if
this Court recognizes the Reynolds exception, that exception should not apply
to her, and that her alleged negligence is irrelevant to her strict liability claims.
Plaintiff maintains that she has asserted viable causes of action for absolute
liability and negligence, and that she is entitled to partial summary judgment
on liability as to those claims.
B.
Defendant asserts that the Appellate Division properly affirmed the trial
court's grant of summary judgment and its denial of plaintiff's cross-motion
for partial summary judgment. She contends that by virtue of the Reynolds
exception to the Dog Bite Statute for independent contractors, plaintiff's
statutory claims are barred, and she urges the Court to reaffirm that exception
13
based on the principle of primary assumption of risk. Defendant contends that
plaintiff cannot establish her common-law claims because plaintiff was
afforded sufficient warning of the risks posed by defendant's dog.
C.
Relying on the plain language of the Dog Bite Statute, amicus curiae
New Jersey Association for Justice contends that the Legislature did not intend
to create an exception to strict liability for independent contractors, as it
expressly did in other settings. Amicus argues that judicial adoption of an
independent contractor exception to the Dog Bite Statute would contravene
public policy. Amicus curiae concedes that plaintiff's training, experience,
and skill in the handling of dogs are pertinent considerations under the
Comparative Negligence Act, but asserts that a jury, not the court, should
make the fact-based determination necessary to allocate fault pursuant to that
statute.
III.
A.
We review the trial court's grant of summary judgment under the same
standard that governs the court's determination. Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A
court must grant summary judgment "if the pleadings, depositions, answers to
14
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 or order as a matter of law.†R.
4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-
29 (1995).
We review de novo the Appellate Division's construction of the Dog
Bite Statute to include an exception, based on primary assumption of the risk,
for independent contractors who agree to care for a dog. See Cashin v. Bello,
223 N.J. 328, 335 (2015).
B.
1.
Prior to the enactment of the Dog Bite Statute in 1933, New Jersey
common law limited the liability of dog owners for biting incidents.
DeRobertis v. Randazzo, 94 N.J. 144, 150-51 (1983). In the early common
law, dog owners were liable for harm caused by their dogs to others "only if
they had scienter; that is, the owners were liable only if they knew of the
animal's dangerous or mischievous propensities.†Id. at 150 (citing Emmons
v. Stevane, 77 N.J.L. 570, 572 (E. & A. 1909)).
15
When it adopted the Dog Bite Statute, the Legislature expanded the
liability of dog owners by imposing a standard of strict liability in dog-bite
cases meeting the statutory terms. Id. at 151. The Statute provides that
[t]he 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.
For the purpose of this section, a person is lawfully
upon the private property of such owner when he is on
the property in the performance of any duty imposed
upon him by the laws of this state or the laws or postal
regulations of the United States, or when he is on such
property upon the invitation, express or implied, of the
owner thereof.
[N.J.S.A. 4:19-16.]
The Dog Bite Statute "provid[es] for the recovery of damages by persons
bitten by dogs and creat[es] a liability of the owners of such dogs.†L. 1933, c.
427, § 1. The Statute "changed the law theretofore existing in that it made
liability absolute upon the happening of the act regardless of the former
viciousness of the dog or of the owner's knowledge of such propensity.â€
Rowland v. Wunderlick, 113 N.J.L. 223, 226 (Sup. Ct. 1934).
Case law underscores the Legislature's intent to impose a strict liability
standard on dog owners in cases governed by the Dog Bite Statute. In Tanga
16
v. Tanga, the Appellate Division rejected the contention that a plaintiff in an
action brought under the statute must prove the dog owner's negligence in
order to recover. 94 N.J. Super. 5, 8-12 (App. Div. 1967). The court observed
that "[a] mere reading of the statute denotes, at the least, legislative concern
with the prior apparent barrier to recovery constituted by the dog owner's lack
of knowledge (scienter) of any previous viciousness of the dog.†Id. at 8. As
the court noted, "[i]t would have been simple for the Legislature to have
provided merely that thenceforth one injured by dog-bite should not be barred
from recovery by reason of the owner's lack of knowledge of the dog's vicious
propensities, had that been the sole intent.†Id. at 12.
Later decisions similarly confirm that the Dog Bite Statute imposes strict
liability, not a standard of negligence. See Robinson v. Vivirito, 217 N.J. 199,
214 (2014) ("The Legislature imposes strict liability on a dog owner because
the owner has the authority and opportunity to control the behavior and
location of the dog.â€); Pingaro v. Rossi, 322 N.J. Super. 494, 503 (App. Div.
1999) ("Satisfaction of the elements of the [Dog Bite Statute] imposes strict
liability . . . .â€); Mascola v. Mascola, 168 N.J. Super. 122, 125 (App Div.
1979) (holding that although the Dog Bite Statute has been "found to be
somewhat ambiguous on its face,†it "has been construed as imposing strict
liability on owners for dog bitesâ€).
17
2.
N.J.S.A. 4:19-16's status as a strict liability statute does not mean that a
defendant subject to that statute is barred from asserting the plaintiff's fault as
a defense to the claim. To the contrary, a defendant may invoke the
Comparative Negligence Act's allocation-of-fault statutory scheme in an
action under the Dog Bite Statute.
The Comparative Negligence Act provides in part that
[c]ontributory negligence shall not bar recovery in an
action by any person or his legal representative to
recover damages for negligence resulting in death or
injury to person or property, if such negligence was not
greater than the negligence of the person against whom
recovery is sought or was not greater than the combined
negligence of the persons against whom recovery is
sought. Any damages sustained shall be diminished by
the percentage sustained of negligence attributable to
the person recovering.
[N.J.S.A. 2A:15-5.1.]
Under the Comparative Negligence Act, the trier of fact first determines
"[t]he amount of damages which would be recoverable by the injured party
regardless of any consideration of negligence or fault, that is, the full value of
the injured party's damages.†N.J.S.A. 2A:15-5.2(a)(1). The trier of fact then
assesses "[t]he extent, in the form of a percentage, of each party's negligence
or fault†with the total of the percentages of negligence or fault allocated to the
parties set at one hundred percent. Id. at (a)(2). Based on the trier of fact's
--
18
findings, the judge molds the judgment. Id. at (d). If the trier of fact allocates
fifty-one percent or more of the fault to the plaintiff, the plaintiff does not
recover damages. See N.J.S.A. 2A:15-5.1.
The Legislature expressly provided that the Comparative Negligence Act
applies to "strict liability actions,†N.J.S.A. 2A:15-5.2(a), a term defined to
include, but not be "limited to, civil actions for damages based upon theories
of strict liability, products liability, breach of warranty and like theories,†id.
at (c)(2). That includes a strict liability action under the Dog Bite Statute.
Pingaro, 322 N.J. Super. at 505 (holding that the Comparative Negligence Act
applies to a statutory claim under the Dog Bite Statute); Mahoney, Forte, &
Turpan, N.J. Personal Injury Recovery § 3:1-3 (2021) (stating that the
Comparative Negligence Act's "statutory definition of the term 'strict liability
actions' is also broad enough to encompass any other claim sounding in strict
or absolute liability, including those based upon a specific statute, such as . . .
New Jersey's dog-bite law, [N.J.S.A.] 4:19-16â€).
Noting that in the product liability setting, a defendant asserting a strict
liability claim must prove the plaintiff's "unreasonable and voluntary exposure
to a known risk,†this Court explained the impact of the Comparative
Negligence Act on a cause of action brought under the Dog Bite Statute:
[u]nder the comparative negligence statute, N.J.S.A.
2A:15-5.1, if the plaintiff's negligence was the primary
19
cause of the injury, then recovery is barred. On the
other hand, if it is found that his negligence is not
greater than . . . the combined negligence of the persons
against whom recovery is sought, he can recover with
an appropriate reduction in the award.
[DeRobertis, 94 N.J. at 156 (citing N.J.S.A. 2A:15-
5.1).]
Accordingly, when a plaintiff pursues a strict liability claim under the
Dog Bite Statute and the defendant asserts the plaintiff's negligence as a
defense under the Comparative Negligence Act, the plaintiff's negligence may
bar the statutory claim, or diminish her recovery of damages in that claim.
Pingaro, 322 N.J. Super. at 504-05; see also N.J.S.A. 2A:15-5.1 to -5.3. The
plaintiff's background, experience, knowledge of the dog's potential dangers,
and conduct in handling the dog, among other considerations, may be relevant
factors in that determination.
C.
1.
Against that backdrop, we address the core issue raised by this appeal:
whether the Appellate Division properly recognized in Reynolds an exception
to the Dog Bite Statute for an independent contractor hired to care for a dog.
See 325 N.J. Super. at 323-25.
The Appellate Division's decision in Reynolds arose from a dog's two
separate attacks on the owner of a guard dog business and an independent
20
contractor hired to oversee the business' operations. Id. at 306-09. The
Pennsylvania correctional facility that donated the dog to the business did not
disclose that the dog had bitten five of the facility's employees during its
training, and assured the business that the dog was friendly and had nipped
someone only once. Id. at 309-10.
A jury found the guard dog business liable to the independent contractor
for claims premised on the Dog Bite Statute and the common law. Id. at 321.
The court acknowledged that there was no evidence that the business was
aware of the dog's history. Id. at 323.
Addressing the Dog Bite Statute, the Appellate Division observed that
"[i]n ordinary circumstances, when a dog is delivered for care to an
independent contractor the owner is entitled to rely on the doctrine of primary
assumption of the risk.†Id. at 323. That doctrine "is an alternate expression
for the proposition that defendant was not negligent, i.e., either owed no duty
or did not breach the duty owed.†Meistrich v. Casino Arena Attractions, Inc.,
31 N.J. 44, 49 (1959). A defense based on primary assumption of the risk "has
the same operative effect as a finding of as little as one percent contributory
negligence before enactment of our Comparative Negligence Act -- it is a
complete bar to recovery.†Del Tufo v. Township of Old Bridge, 147 N.J. 90,
21
112-13 (1996); see also Mahoney, Forte, & Turpan, § 3:8-3 (describing the
import of primary assumption of the risk when it is prescribed by statute).
In Reynolds, the Appellate Division applied the doctrine of primary
assumption of the risk, holding that
[w]hen a dog owner turns his dog over to an
independent contractor who has agreed to care for the
dog, the owner is not liable under the dog-bite statute
when the dog bites the independent contractor unless
the owner knew, or had reason to know, the dog was
vicious and withheld that information. Similarly, under
the doctrine of primary assumption of the risk . . . it
would appear that an owner would not be liable under
the statute to an independent contractor who undertakes
the care of a domestic animal with knowledge that it is
particularly dangerous.
[Reynolds, 325 N.J. Super. at 324.]
The court reasoned that because there was no "evidence that the unusual
hazard presented by [the dog] was known†to the guard dog business that
owned the dog, the independent contractor's claim under the Dog Bite Statute
against that business failed. Ibid. The court affirmed the determination of
liability in the plaintiff's favor based on common-law negligence. Id. at 324-
25.
2.
The doctrine of primary assumption of the risk applied in Reynolds
diverges from the general strict liability rule set forth in N.J.S.A. 4:19-16,
22
which imposes liability for damages sustained from a dog bite on the owner
"regardless of the former viciousness of [the] dog or the owner's knowledge of
such viciousness.†Reynolds thus represents a judicially created exception to
the rule of strict liability set forth in the Dog Bite Statute. We consider
whether the Appellate Division properly adopted that exception.
In that determination, we apply familiar principles of statutory
construction. When we interpret a statute, our paramount goal is to "ascertain
and effectuate the Legislature's intent.†Kean Fed'n of Tchrs. v. Morell, 233
N.J. 566, 583 (2018) (quoting Cashin, 223 N.J. at 335). To that end, "we look
first to the statute's actual language and ascribe to its words their ordinary
meaning.†Ibid. (citing Mason v. City of Hoboken, 196 N.J. 51, 68 (2008)). If
the statute's meaning is clear, "we need look no further.†Mason, 196 N.J. at
68.
The plain language of the Dog Bite Statute reveals the Legislature's
intent. That language imposes strict liability on "[t]he owner of any dog†that
bites a "person†who is, at the time of the dog bite, in a public place or
lawfully in a private place. N.J.S.A. 4:19-16. In the statute, the term "personâ€
is unmodified by any limiting term. Ibid.; see also N.J.S.A. 1:1-2 (defining the
statutory term, "personâ€). Nothing in the provision suggests that the
Legislature intended to exclude any category of dog owners from statutory
23
liability, let alone any indication that claims asserted by independent
contractors who have agreed to care for a dog are exempt from the statute's
general rule. See N.J.S.A. 4:19-16.
In that regard, the Dog Bite Statute stands in stark contrast to statutes
that govern liability for injuries suffered while participating in inherently
dangerous activities and that incorporate assumption of the risk in the statutory
terms. See N.J.S.A. 5:13-5 to -6 (provisions of a statute addressing the duties
of ski facility operators and skiers, assumption of the risk, and comparative
negligence); N.J.S.A. 5:14-5 to -7 (provisions of the Roller Skating Rink
Safety and Fair Liability Act addressing duties of roller skating facility
operators and roller skaters, assumption of the risk, and comparative
negligence); N.J.S.A. 5:15-3, -5 (provisions of a statute addressing assumption
of the risk as applied to claims arising from "equine animal activitiesâ€).
"When 'the Legislature has carefully employed a term in one place and
excluded it in another, it should not be implied where excluded.'†In re Plan
for Abolition of Council on Affordable Hous., 214 N.J. 444, 470 (2013)
(quoting Higgins v. Pascack Valley Hosp., 185 N.J. 404, 419 (1999)); accord
State v. Drury, 190 N.J. 197, 215 (2007). Here, the Legislature's choice not to
incorporate assumption of the risk into the Dog Bite Statute for independent
24
contractors -- or any other category of plaintiffs -- signals its intent not to limit
the statute's strict liability rule. See N.J.S.A. 4:19-16.3
3.
Accordingly, we do not concur with the Appellate Division's
determination in Reynolds that, under the Dog Bite Statute, a dog owner is not
liable to an independent contractor who has agreed to care for the dog unless
the owner knew or had reason to know that the dog was vicious and withheld
that information. See Reynolds, 325 N.J. Super. at 324. We reverse the
Appellate Division's decision, premised on the Reynolds exception, affirming
the trial court's grant of summary judgment.
Our determination does not mean that plaintiff's status as a professional
working in a dog boarding facility has no impact on her claim under the Dog
Bite Statute. Defendant may raise plaintiff's experience in working with dogs,
the warnings that she was provided, her conduct in handling the dog, and other
3
The Legislature, of course, may decide to amend the Dog Bite Statute to
limit dog owners' liability to certain categories of plaintiffs, or bar such
liability entirely. See, e.g., Colo. Rev. Stat. § 13-21-124(5)(e) (excluding
"veterinary health care worker[s],†"dog groomer[s], and others†from dog-bite
liability); see also Ariz. Rev. Stat. Ann. § 11-1025 (barring dog bite claims
against "any governmental agency using a dog in military or police work†if
the bite occurred during the execution of law enforcement duties); Fla. Stat.
§ 767.04 (precluding liability of dog owner if "the owner had displayed in a
prominent place on his or her premises a sign easily readable including the
words 'Bad Dog'â€); S.C. Code Ann. § 47-3-110(B)(1) and (B)(2) (listing
exceptions to dog owners' liability for injury).
25
facts relevant to comparative negligence, and may argue in a summary
judgment motion that plaintiff's comparative fault warrants dismissal of her
statutory claim. See N.J.S.A. 2A:15-5.1 to -5.3. If the case proceeds to trial,
defendant may present to the jury evidence relating to plaintiff's professional
status, knowledge, experience, and conduct and may seek an allocation of fault
to plaintiff pursuant to the Comparative Negligence Act.
D.
Finally, we consider plaintiff's cross-motion for partial summary
judgment, in which she sought summary judgment in her favor with respect to
liability on her Dog Bite Statute claim and her common-law claims for
absolute liability and negligence.
4
We agree with the trial court that genuine issues of material fact
preclude a grant of partial summary judgment to plaintiff as to liability on her
claim under the Dog Bite Statute. See R. 4:46-2. Plaintiff is correct that based
on the record before the Court, it appears that defendant's status as the dog's
owner is undisputed, thus satisfying an element of N.J.S.A. 4:19-16. There
4
The record before the Court regarding plaintiff's cross-motion for partial
summary judgment is sparse. As she did before the trial court and in her brief
to the Appellate Division, plaintiff addressed her cross-motion in her petition
for certification only briefly; she stated that she had proven all the elements of
her Dog Bite Statute claim and her claim for common-law absolute liability,
that defendant's knowledge of her dog's "dangerous propensities†was
undisputed, and that it was unnecessary to "submit the question to the jury.â€
26
remain significant factual disputes, however, regarding the information that
defendant provided to plaintiff and her employer regarding the risk posed by
the dog, plaintiff's conduct before and during the incident, and other relevant
issues. Defendant's assertion of a defense based on the Comparative
Negligence Act and her presentation of prima facie evidence supporting that
defense preclude the entry of partial summary judgment on liability based on
the Dog Bite Statute. We hold that the trial court properly denied plaintiff's
motion for partial summary judgment with respect to the Dog Bite Statute
claim.
Plaintiff's motion for partial summary judgment also addressed her
common-law claims for absolute liability and negligence. We agree with the
trial court that genuine issues of material fact regarding defendant's
communications with plaintiff and her employer, as well as the circumstances
of the dog-bite incident, preclude the entry of partial summary judgment on
liability with respect to the common-law claims. See R. 4:46-2. Our ruling,
however, does not preclude plaintiff from filing a motion for partial summary
judgment regarding her common-law claims at a later stage.
To provide guidance to the trial court on remand, we briefly address the
relationship between plaintiff's statutory claim under the Dog Bite Act and her
-----
27
common-law claims for absolute liability and negligence. As the Court
explained in DeRobertis,
[i]f a plaintiff is unable to recover under the [Dog Bite
Statute] for failure to prove any of [the statute's] three
elements, he still may have a cause of action based on
common-law principles. If a plaintiff proves scienter,
a dog-owner is absolutely liable for injuries caused by
the dangerous characteristic of the dog, unless the
owner can prove that the plaintiff was contributorily
negligent. In that event, the determination of liability
is governed by the Comparative Negligence Act.
N.J.S.A. 2A:15-5.1. If, on the other hand, the plaintiff
is unable to prove that the owner knew or should have
known of the dog's dangerous characteristics, then the
owner is liable only if the plaintiff is able to prove that
the owner acted negligently in keeping the dog. Once
again, the negligence of the plaintiff would be relevant
to determining the liability of the owner. Finally, the
owner of an abnormally dangerous dog owes a duty of
ordinary care to an infant trespasser.
[DeRobertis, 94 N.J. at 158.]5
5 The Appellate Division's decision in Jannuzzelli v. Wilkens provides an
example of a setting in which a plaintiff could not prove a claim under the Dog
Bite Statute, but could assert a common-law claim for absolute liability subject
in part to the Comparative Negligence Act. 158 N.J. Super. 36, 41-42 (App.
Div. 1978). There, the trial evidence suggested that the infant plaintiff's
injuries resulted from the dog jumping up on the child and scratching her, not
from a dog bite. Id. at 39-41. The court observed that "[n]otwithstanding
N.J.S.A. 4:19-16, a common law cause of action remains in which scienter
must be proved to establish liability when a dog injures a person, but does not
inflict a bite.†Id. at 41 (citing Hayes v. Mongiovi, 121 N.J. Super. 272, 274-
75 (Cnty. Ct. 1972)). Although the appellate court deemed the child's
contributory negligence to be irrelevant, it remanded for consideration of the
contributory negligence of the child's parents, which was pertinent to their per
quod claim. Id. at 47.
28
The trial court should apply the principles stated in DeRobertis when it
determines plaintiff's statutory and common-law claims, and decides which, if
any, of those claims should be presented to the jury. If the jury considers
either common-law claim, and defendant presents evidence of plaintiff's
negligence, the jury should allocate fault pursuant to N.J.S.A. 2A:15-5.2
and -5.3 with respect to those claims.
Trenton, NJ - Personal Injury lawyer represented plaintiff with a personal_injury charge.
The Dog Bite Statute, N.J.S.A. 4:19-16, imposes liability on dog owners
in personal injury actions arising from dog bites in certain settings, "regardless
of the former viciousness of such dog or the owner's knowledge of such
viciousness.†It establishes a strict liability cause of action that a plaintiff
injured by a dog bite may assert against the dog's owner if the plaintiff proves
the elements set forth in the statute.
This appeal arose from an incident in which a dog owned by defendant
Susan Pasmowitz bit plaintiff Bonay Goldhagen, causing a severe facial injury.
At the time of the incident, plaintiff was a groomer and kennel assistant
employed at a pet care facility where defendant boarded her dogs. It is
undisputed that defendant told plaintiff and the facility's manager that the dog
"nipped†or "bit†her son and that she urged caution in handling the dog.
Nevertheless, plaintiff contends that defendant concealed the fact that the dog
had previously bitten defendant in the face and downplayed the risk that the
dog presented.
Plaintiff asserted a claim based on the Dog Bite Statute, as well as
common-law claims for absolute liability and negligence. Granting summary
judgment in favor of defendant, the trial court relied on the Appellate
3
Division's decision in Reynolds v. Lancaster County Prison, 325 N.J. Super.
298, 323-26 (App. Div. 1999). In Reynolds, the Appellate Division recognized
an exception to statutory liability under the Dog Bite Statute. Applying
principles of primary assumption of the risk, the court held that when the
plaintiff is an independent contractor who agrees to care for the defendant's
dog, the plaintiff must show that the owner "purposefully or negligently
conceal[ed] a particular known hazard†for liability to attach. Id. at 323-24
(quoting Nelson v. Hall, 211 Cal. Rptr. 668, 673 n.4 (Ct. App. 1985)). The
trial court in this matter viewed Reynolds to bar plaintiff's claims, given her
status as a professional employed by a kennel to care for the dog, and
dismissed her claims.
Plaintiff appealed. The Appellate Division applied the independent
contractor exception to the Dog Bite Statute under Reynolds and affirmed the
grant of summary judgment.
We granted certification. We affirm in part and reverse in part the
Appellate Division's judgment and remand the matter to the trial court for
further proceedings. We disagree with the Appellate Division's holding in
Reynolds that the Dog Bite Statute's strict liability standard does not apply to
the claim of an independent contractor who agrees to care for a dog. See ibid.
The statute's plain language reveals no legislative intent to recognize an
4
exception to strict liability under the Dog Bite Statute for any category of
injured plaintiffs. See N.J.S.A. 4:19-16. Accordingly, we reverse the
Appellate Division's judgment affirming the trial court's grant of summary
judgment to defendant based on the Reynolds independent contractor
exception.
We hold, however, that the Comparative Negligence Act, N.J.S.A.
2A:15-5.1 to -5.8, applies to plaintiff's strict liability claim under the Dog Bite
Statute, and that plaintiff's status as a professional experienced in the care of
dogs is relevant to an allocation of fault under the Act. Our decision reversing
the grant of summary judgment based on Reynolds is without prejudice to the
parties' right to file additional motions for summary judgment addressing
plaintiff's statutory claim based on comparative negligence or other grounds.
If the case proceeds to trial, defendant may present evidence regarding
plaintiff's alleged negligence to the jury and seek an allocation of fault to
plaintiff.
Turning to plaintiff's common-law claims, we agree with the trial court
and the Appellate Division that genuine issues of material fact in the record
warrant the denial of plaintiff's motion for partial summary judgment.
Without prejudice to any further applications that the parties may present to
the trial court regarding the common-law claims on remand, we affirm the
5
Appellate Division's decision denying partial summary judgment with respect
to those claims.
I.
A.
We summarize the facts based on the summary judgment record
presented to the trial court.
In 2008, defendant adopted a Rottweiler mix, then ten to twelve weeks
old, and named him Louie. When fully grown, the dog weighed 120 to 130
pounds.
Defendant testified at her deposition that in 2011, as she attempted to
remove a tick from Louie's ear, the dog bit her left cheek, leaving her with a
laceration that required thirty stitches. The hospital that treated defendant
contacted her municipality's animal control officer, who investigated the
incident. Defendant also testified that the dog would get upset when his nails
were clipped or he was approached from behind during visits to the
veterinarian and that, as an adult dog, he was routinely muzzled and frequently
sedated when he was at the veterinarian's office.
Defendant testified that in late June or early July 2015, she called Scott
Winston, owner of Atlantic City Pet Care Kennel, to arrange for Louie and her
other dog, Otis, to be boarded while she was on vacation. Defendant stated
6
that in that telephone call, Winston did not ask whether the dogs had been to a
kennel before, and that he did not request -- and she did not volunteer -- any
information about the behavior of her dogs.
On July 1 or 2, 2015, defendant dropped Louie and Otis off at Atlantic
City Pet Care Kennel for boarding. Defendant testified that when she arrived
at the boarding facility, she met with Winston, plaintiff, and another kennel
employee. She stated that she told them that the dogs could be boarded in the
same kennel but warned them that Louie should be muzzled, that they should
avoid agitating him, and that they should not clip his nails or bathe him.
Defendant testified that she told Winston, plaintiff, and the other employee
that "you need to be leery of this dog.†Defendant does not contend that she
told plaintiff and the other staff members at the boarding facility that Louie
had previously bitten her face.
Defendant testified that in response to those warnings, plaintiff was
"dismissing†and "placating†her, and that she "actually hugged me, patted my
back and said, don't worry, mommy, I've been around dogs, I know how to
handle dogs.†According to defendant, plaintiff "just was very dismissive to
me, kind of laughing at me that I'm being overly dramatic regarding my dog.â€
At her deposition, plaintiff testified that defendant told her that "the dog
doesn't like its nails cut†and that she had assured defendant that "we wouldn't
7
bother cutting its nails, no problem.†Plaintiff also testified that defendant told
her that the dog had previously "nipped†defendant's son, but later commented
that "all I remember the owner saying was the dog bit my child, period.â€
When she dropped her dogs off at the boarding facility, defendant spoke
with Winston to complete an intake form that would be displayed outside the
kennel housing Louie and Otis. The intake form, a printed form with
handwritten notations, indicated that defendant's dogs "Must eat separatelyâ€
-- a notation underlined and emphasized with an asterisk -- that staff should
"sit with Otis to eat,†and that they "Must Muzzle for nail clippings.†It also
included a comment that Louie should be walked in the "backyard only!â€
Plaintiff admitted that she did not review the intake form for defendant's dogs
until after Louie bit her.
Plaintiff described the dog-bite incident.1
According to plaintiff, a
kennel staff member told her that "the dogs needed to be given a worm pill and
needed to be fed separately.†She testified that "there was a problem in that
because we were very busy, we only had one accommodation for the dogs, so
1
The record is inconsistent with regard to the date of the dog-bite incident.
Plaintiff testified that it occurred on the day that defendant dropped off her
dogs at the boarding facility, which would be July 1 or July 2, 2015, but
alleged in her complaint that it occurred on July 4, 2015.
8
in order to separate them somebody would have to go in and sit with one of
them, which is mentioned on the front page [of the intake shee t].â€
Plaintiff stated that because she had to give the dogs their pills, she went
into the kennel, put the dogs' food bowls down, and put a pill in each dog's
bowl. Plaintiff testified that she "sat down, looked at Louie, turned around,
looked at Otis just to make sure they were getting their noses into their food,
and I was sitting down next to Otis, and I was looking at them.†She stated
that "[w]hen I turned around to look at Louie, he was in my face biting my
lip.†Plaintiff stated that the dog also bit her left arm.
Winston drove plaintiff to a hospital emergency room. There, medical
staff determined that plaintiff had a "significant and severe injury to the right
upper lip, cupids bow, nasal base and pyramid, right lower lip, and right oral
commissure,†requiring "a prolonged repair.†Plaintiff testified that she
continues to experience numbness and pain that is "never going to go away.â€
The next day, Winston called defendant to report that Louie had bitten
plaintiff. Defendant reported the incident to animal control. The dog was
euthanized.
9
B.
1.
Plaintiff filed this action against defendant in the Law Division.
2
She
alleged that in the course of her employment, she "was bitten in the face by the
dog known as Louie while trying to have the dog swallow two medication pills
that were mixed in with dog food.†Plaintiff further alleged that defendant was
"negligent and/or strictly liable for the actions of the dog in question and knew
or should have known that said dog may bite people.†Defendant filed an
answer, asserting plaintiff's negligence as an affirmative defense.
After discovery, the parties cross-moved for summary judgment pursuant
to Rule 4:46-2. In defendant's summary judgment motion, she relied on the
Appellate Division's decision in Reynolds to argue that plaintiff, a
professional in the care of dogs, could not assert a claim under the Dog Bite
Statute. In her cross-motion, plaintiff sought partial summary judgment on the
question of liability with respect to her statutory and common-law claims.
The trial court found that defendant told plaintiff that Louie had bitten
her son, but defendant did not disclose that the dog had bitten her in the face.
The trial court concluded that defendant "knew the dog was vicious and prone
2 Plaintiff initially named defendant's mother as a defendant, but later
dismissed the claims against her.
10
to biting people.†It further observed that plaintiff did not follow the
instructions on the intake form to feed Louie separately from Otis and to sit
with Otis as he ate.
The trial court declined to find that defendant's failure to disclose the
fact that the dog had bitten defendant in the face, requiring thirty stitches to
close the wound, was sufficient to create a genuine issue of material fact for
purposes of Rule 4:46-2. It concluded that plaintiff "had sufficient knowledge
based upon the fact that Louie bit a child and that fact was revealed
specifically by the defendant to the plaintiff.â€
The trial court found that plaintiff "was a long-time professional in this
industry, in this field,†and that in her employment at Atlantic City Pet Care
Kennel, plaintiff had the necessary experience "to know and appreciate this
dog's history and to take the necessary precautionary measures to safely
address the needs of a dog, as well as her own.†It viewed this case to be very
similar to Reynolds and ruled that the Reynolds exception to liability under the
Dog Bite Statute applied.
The trial court accordingly granted defendant's motion for summary
judgment dismissing plaintiff's claims and denied plaintiff's cross-motion for
partial summary judgment.
11
2.
Plaintiff appealed both of the trial court's decisions. She contended that
the assumption-of-risk exception to the Dog Bite Statute recognized in
Reynolds should not apply, that her alleged negligence was irrelevant to her
statutory claim, and that she was entitled to partial summary judgment on her
common-law claims.
The Appellate Division acknowledged that defendant did not mention to
plaintiff that Louie had bitten her, but stated that it was undisputed that
defendant made plaintiff aware of the dog's aggressive nature. The court
concluded that the principles articulated in Reynolds governed this case,
because plaintiff was a professional who agreed to care for defendant's dog,
and was aware of the risk that any dog, regardless of its previous behavior,
might bite an individual caring for it. It held that a reasonable factfinder could
reach only one conclusion: that plaintiff had sufficient warning that the dog
might bite her while she was caring for him.
The Appellate Division accordingly affirmed the trial court's grant of
summary judgment to defendant and the court's denial of plaintiff's crossmotion for partial summary judgment on the issue of liability with respect to
the common-law claims.
12
3.
We granted plaintiff's petition for certification. 244 N.J. 335 (2020).
We also granted the application of the New Jersey Association for Justice to
appear as amicus curiae.
II.
A.
Plaintiff urges us to hold that her claim meets the requirements of the
Dog Bite Statute and to reject the exception to strict liability under that statute
recognized by the Appellate Division in Reynolds. She contends that even if
this Court recognizes the Reynolds exception, that exception should not apply
to her, and that her alleged negligence is irrelevant to her strict liability claims.
Plaintiff maintains that she has asserted viable causes of action for absolute
liability and negligence, and that she is entitled to partial summary judgment
on liability as to those claims.
B.
Defendant asserts that the Appellate Division properly affirmed the trial
court's grant of summary judgment and its denial of plaintiff's cross-motion
for partial summary judgment. She contends that by virtue of the Reynolds
exception to the Dog Bite Statute for independent contractors, plaintiff's
statutory claims are barred, and she urges the Court to reaffirm that exception
13
based on the principle of primary assumption of risk. Defendant contends that
plaintiff cannot establish her common-law claims because plaintiff was
afforded sufficient warning of the risks posed by defendant's dog.
C.
Relying on the plain language of the Dog Bite Statute, amicus curiae
New Jersey Association for Justice contends that the Legislature did not intend
to create an exception to strict liability for independent contractors, as it
expressly did in other settings. Amicus argues that judicial adoption of an
independent contractor exception to the Dog Bite Statute would contravene
public policy. Amicus curiae concedes that plaintiff's training, experience,
and skill in the handling of dogs are pertinent considerations under the
Comparative Negligence Act, but asserts that a jury, not the court, should
make the fact-based determination necessary to allocate fault pursuant to that
statute.
III.
A.
We review the trial court's grant of summary judgment under the same
standard that governs the court's determination. Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A
court must grant summary judgment "if the pleadings, depositions, answers to
14
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 or order as a matter of law.†R.
4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-
29 (1995).
We review de novo the Appellate Division's construction of the Dog
Bite Statute to include an exception, based on primary assumption of the risk,
for independent contractors who agree to care for a dog. See Cashin v. Bello,
223 N.J. 328, 335 (2015).
B.
1.
Prior to the enactment of the Dog Bite Statute in 1933, New Jersey
common law limited the liability of dog owners for biting incidents.
DeRobertis v. Randazzo, 94 N.J. 144, 150-51 (1983). In the early common
law, dog owners were liable for harm caused by their dogs to others "only if
they had scienter; that is, the owners were liable only if they knew of the
animal's dangerous or mischievous propensities.†Id. at 150 (citing Emmons
v. Stevane, 77 N.J.L. 570, 572 (E. & A. 1909)).
15
When it adopted the Dog Bite Statute, the Legislature expanded the
liability of dog owners by imposing a standard of strict liability in dog-bite
cases meeting the statutory terms. Id. at 151. The Statute provides that
[t]he 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.
For the purpose of this section, a person is lawfully
upon the private property of such owner when he is on
the property in the performance of any duty imposed
upon him by the laws of this state or the laws or postal
regulations of the United States, or when he is on such
property upon the invitation, express or implied, of the
owner thereof.
[N.J.S.A. 4:19-16.]
The Dog Bite Statute "provid[es] for the recovery of damages by persons
bitten by dogs and creat[es] a liability of the owners of such dogs.†L. 1933, c.
427, § 1. The Statute "changed the law theretofore existing in that it made
liability absolute upon the happening of the act regardless of the former
viciousness of the dog or of the owner's knowledge of such propensity.â€
Rowland v. Wunderlick, 113 N.J.L. 223, 226 (Sup. Ct. 1934).
Case law underscores the Legislature's intent to impose a strict liability
standard on dog owners in cases governed by the Dog Bite Statute. In Tanga
16
v. Tanga, the Appellate Division rejected the contention that a plaintiff in an
action brought under the statute must prove the dog owner's negligence in
order to recover. 94 N.J. Super. 5, 8-12 (App. Div. 1967). The court observed
that "[a] mere reading of the statute denotes, at the least, legislative concern
with the prior apparent barrier to recovery constituted by the dog owner's lack
of knowledge (scienter) of any previous viciousness of the dog.†Id. at 8. As
the court noted, "[i]t would have been simple for the Legislature to have
provided merely that thenceforth one injured by dog-bite should not be barred
from recovery by reason of the owner's lack of knowledge of the dog's vicious
propensities, had that been the sole intent.†Id. at 12.
Later decisions similarly confirm that the Dog Bite Statute imposes strict
liability, not a standard of negligence. See Robinson v. Vivirito, 217 N.J. 199,
214 (2014) ("The Legislature imposes strict liability on a dog owner because
the owner has the authority and opportunity to control the behavior and
location of the dog.â€); Pingaro v. Rossi, 322 N.J. Super. 494, 503 (App. Div.
1999) ("Satisfaction of the elements of the [Dog Bite Statute] imposes strict
liability . . . .â€); Mascola v. Mascola, 168 N.J. Super. 122, 125 (App Div.
1979) (holding that although the Dog Bite Statute has been "found to be
somewhat ambiguous on its face,†it "has been construed as imposing strict
liability on owners for dog bitesâ€).
17
2.
N.J.S.A. 4:19-16's status as a strict liability statute does not mean that a
defendant subject to that statute is barred from asserting the plaintiff's fault as
a defense to the claim. To the contrary, a defendant may invoke the
Comparative Negligence Act's allocation-of-fault statutory scheme in an
action under the Dog Bite Statute.
The Comparative Negligence Act provides in part that
[c]ontributory negligence shall not bar recovery in an
action by any person or his legal representative to
recover damages for negligence resulting in death or
injury to person or property, if such negligence was not
greater than the negligence of the person against whom
recovery is sought or was not greater than the combined
negligence of the persons against whom recovery is
sought. Any damages sustained shall be diminished by
the percentage sustained of negligence attributable to
the person recovering.
[N.J.S.A. 2A:15-5.1.]
Under the Comparative Negligence Act, the trier of fact first determines
"[t]he amount of damages which would be recoverable by the injured party
regardless of any consideration of negligence or fault, that is, the full value of
the injured party's damages.†N.J.S.A. 2A:15-5.2(a)(1). The trier of fact then
assesses "[t]he extent, in the form of a percentage, of each party's negligence
or fault†with the total of the percentages of negligence or fault allocated to the
parties set at one hundred percent. Id. at (a)(2). Based on the trier of fact's
--
18
findings, the judge molds the judgment. Id. at (d). If the trier of fact allocates
fifty-one percent or more of the fault to the plaintiff, the plaintiff does not
recover damages. See N.J.S.A. 2A:15-5.1.
The Legislature expressly provided that the Comparative Negligence Act
applies to "strict liability actions,†N.J.S.A. 2A:15-5.2(a), a term defined to
include, but not be "limited to, civil actions for damages based upon theories
of strict liability, products liability, breach of warranty and like theories,†id.
at (c)(2). That includes a strict liability action under the Dog Bite Statute.
Pingaro, 322 N.J. Super. at 505 (holding that the Comparative Negligence Act
applies to a statutory claim under the Dog Bite Statute); Mahoney, Forte, &
Turpan, N.J. Personal Injury Recovery § 3:1-3 (2021) (stating that the
Comparative Negligence Act's "statutory definition of the term 'strict liability
actions' is also broad enough to encompass any other claim sounding in strict
or absolute liability, including those based upon a specific statute, such as . . .
New Jersey's dog-bite law, [N.J.S.A.] 4:19-16â€).
Noting that in the product liability setting, a defendant asserting a strict
liability claim must prove the plaintiff's "unreasonable and voluntary exposure
to a known risk,†this Court explained the impact of the Comparative
Negligence Act on a cause of action brought under the Dog Bite Statute:
[u]nder the comparative negligence statute, N.J.S.A.
2A:15-5.1, if the plaintiff's negligence was the primary
19
cause of the injury, then recovery is barred. On the
other hand, if it is found that his negligence is not
greater than . . . the combined negligence of the persons
against whom recovery is sought, he can recover with
an appropriate reduction in the award.
[DeRobertis, 94 N.J. at 156 (citing N.J.S.A. 2A:15-
5.1).]
Accordingly, when a plaintiff pursues a strict liability claim under the
Dog Bite Statute and the defendant asserts the plaintiff's negligence as a
defense under the Comparative Negligence Act, the plaintiff's negligence may
bar the statutory claim, or diminish her recovery of damages in that claim.
Pingaro, 322 N.J. Super. at 504-05; see also N.J.S.A. 2A:15-5.1 to -5.3. The
plaintiff's background, experience, knowledge of the dog's potential dangers,
and conduct in handling the dog, among other considerations, may be relevant
factors in that determination.
C.
1.
Against that backdrop, we address the core issue raised by this appeal:
whether the Appellate Division properly recognized in Reynolds an exception
to the Dog Bite Statute for an independent contractor hired to care for a dog.
See 325 N.J. Super. at 323-25.
The Appellate Division's decision in Reynolds arose from a dog's two
separate attacks on the owner of a guard dog business and an independent
20
contractor hired to oversee the business' operations. Id. at 306-09. The
Pennsylvania correctional facility that donated the dog to the business did not
disclose that the dog had bitten five of the facility's employees during its
training, and assured the business that the dog was friendly and had nipped
someone only once. Id. at 309-10.
A jury found the guard dog business liable to the independent contractor
for claims premised on the Dog Bite Statute and the common law. Id. at 321.
The court acknowledged that there was no evidence that the business was
aware of the dog's history. Id. at 323.
Addressing the Dog Bite Statute, the Appellate Division observed that
"[i]n ordinary circumstances, when a dog is delivered for care to an
independent contractor the owner is entitled to rely on the doctrine of primary
assumption of the risk.†Id. at 323. That doctrine "is an alternate expression
for the proposition that defendant was not negligent, i.e., either owed no duty
or did not breach the duty owed.†Meistrich v. Casino Arena Attractions, Inc.,
31 N.J. 44, 49 (1959). A defense based on primary assumption of the risk "has
the same operative effect as a finding of as little as one percent contributory
negligence before enactment of our Comparative Negligence Act -- it is a
complete bar to recovery.†Del Tufo v. Township of Old Bridge, 147 N.J. 90,
21
112-13 (1996); see also Mahoney, Forte, & Turpan, § 3:8-3 (describing the
import of primary assumption of the risk when it is prescribed by statute).
In Reynolds, the Appellate Division applied the doctrine of primary
assumption of the risk, holding that
[w]hen a dog owner turns his dog over to an
independent contractor who has agreed to care for the
dog, the owner is not liable under the dog-bite statute
when the dog bites the independent contractor unless
the owner knew, or had reason to know, the dog was
vicious and withheld that information. Similarly, under
the doctrine of primary assumption of the risk . . . it
would appear that an owner would not be liable under
the statute to an independent contractor who undertakes
the care of a domestic animal with knowledge that it is
particularly dangerous.
[Reynolds, 325 N.J. Super. at 324.]
The court reasoned that because there was no "evidence that the unusual
hazard presented by [the dog] was known†to the guard dog business that
owned the dog, the independent contractor's claim under the Dog Bite Statute
against that business failed. Ibid. The court affirmed the determination of
liability in the plaintiff's favor based on common-law negligence. Id. at 324-
25.
2.
The doctrine of primary assumption of the risk applied in Reynolds
diverges from the general strict liability rule set forth in N.J.S.A. 4:19-16,
22
which imposes liability for damages sustained from a dog bite on the owner
"regardless of the former viciousness of [the] dog or the owner's knowledge of
such viciousness.†Reynolds thus represents a judicially created exception to
the rule of strict liability set forth in the Dog Bite Statute. We consider
whether the Appellate Division properly adopted that exception.
In that determination, we apply familiar principles of statutory
construction. When we interpret a statute, our paramount goal is to "ascertain
and effectuate the Legislature's intent.†Kean Fed'n of Tchrs. v. Morell, 233
N.J. 566, 583 (2018) (quoting Cashin, 223 N.J. at 335). To that end, "we look
first to the statute's actual language and ascribe to its words their ordinary
meaning.†Ibid. (citing Mason v. City of Hoboken, 196 N.J. 51, 68 (2008)). If
the statute's meaning is clear, "we need look no further.†Mason, 196 N.J. at
68.
The plain language of the Dog Bite Statute reveals the Legislature's
intent. That language imposes strict liability on "[t]he owner of any dog†that
bites a "person†who is, at the time of the dog bite, in a public place or
lawfully in a private place. N.J.S.A. 4:19-16. In the statute, the term "personâ€
is unmodified by any limiting term. Ibid.; see also N.J.S.A. 1:1-2 (defining the
statutory term, "personâ€). Nothing in the provision suggests that the
Legislature intended to exclude any category of dog owners from statutory
23
liability, let alone any indication that claims asserted by independent
contractors who have agreed to care for a dog are exempt from the statute's
general rule. See N.J.S.A. 4:19-16.
In that regard, the Dog Bite Statute stands in stark contrast to statutes
that govern liability for injuries suffered while participating in inherently
dangerous activities and that incorporate assumption of the risk in the statutory
terms. See N.J.S.A. 5:13-5 to -6 (provisions of a statute addressing the duties
of ski facility operators and skiers, assumption of the risk, and comparative
negligence); N.J.S.A. 5:14-5 to -7 (provisions of the Roller Skating Rink
Safety and Fair Liability Act addressing duties of roller skating facility
operators and roller skaters, assumption of the risk, and comparative
negligence); N.J.S.A. 5:15-3, -5 (provisions of a statute addressing assumption
of the risk as applied to claims arising from "equine animal activitiesâ€).
"When 'the Legislature has carefully employed a term in one place and
excluded it in another, it should not be implied where excluded.'†In re Plan
for Abolition of Council on Affordable Hous., 214 N.J. 444, 470 (2013)
(quoting Higgins v. Pascack Valley Hosp., 185 N.J. 404, 419 (1999)); accord
State v. Drury, 190 N.J. 197, 215 (2007). Here, the Legislature's choice not to
incorporate assumption of the risk into the Dog Bite Statute for independent
24
contractors -- or any other category of plaintiffs -- signals its intent not to limit
the statute's strict liability rule. See N.J.S.A. 4:19-16.3
3.
Accordingly, we do not concur with the Appellate Division's
determination in Reynolds that, under the Dog Bite Statute, a dog owner is not
liable to an independent contractor who has agreed to care for the dog unless
the owner knew or had reason to know that the dog was vicious and withheld
that information. See Reynolds, 325 N.J. Super. at 324. We reverse the
Appellate Division's decision, premised on the Reynolds exception, affirming
the trial court's grant of summary judgment.
Our determination does not mean that plaintiff's status as a professional
working in a dog boarding facility has no impact on her claim under the Dog
Bite Statute. Defendant may raise plaintiff's experience in working with dogs,
the warnings that she was provided, her conduct in handling the dog, and other
3
The Legislature, of course, may decide to amend the Dog Bite Statute to
limit dog owners' liability to certain categories of plaintiffs, or bar such
liability entirely. See, e.g., Colo. Rev. Stat. § 13-21-124(5)(e) (excluding
"veterinary health care worker[s],†"dog groomer[s], and others†from dog-bite
liability); see also Ariz. Rev. Stat. Ann. § 11-1025 (barring dog bite claims
against "any governmental agency using a dog in military or police work†if
the bite occurred during the execution of law enforcement duties); Fla. Stat.
§ 767.04 (precluding liability of dog owner if "the owner had displayed in a
prominent place on his or her premises a sign easily readable including the
words 'Bad Dog'â€); S.C. Code Ann. § 47-3-110(B)(1) and (B)(2) (listing
exceptions to dog owners' liability for injury).
25
facts relevant to comparative negligence, and may argue in a summary
judgment motion that plaintiff's comparative fault warrants dismissal of her
statutory claim. See N.J.S.A. 2A:15-5.1 to -5.3. If the case proceeds to trial,
defendant may present to the jury evidence relating to plaintiff's professional
status, knowledge, experience, and conduct and may seek an allocation of fault
to plaintiff pursuant to the Comparative Negligence Act.
D.
Finally, we consider plaintiff's cross-motion for partial summary
judgment, in which she sought summary judgment in her favor with respect to
liability on her Dog Bite Statute claim and her common-law claims for
absolute liability and negligence.
4
We agree with the trial court that genuine issues of material fact
preclude a grant of partial summary judgment to plaintiff as to liability on her
claim under the Dog Bite Statute. See R. 4:46-2. Plaintiff is correct that based
on the record before the Court, it appears that defendant's status as the dog's
owner is undisputed, thus satisfying an element of N.J.S.A. 4:19-16. There
4
The record before the Court regarding plaintiff's cross-motion for partial
summary judgment is sparse. As she did before the trial court and in her brief
to the Appellate Division, plaintiff addressed her cross-motion in her petition
for certification only briefly; she stated that she had proven all the elements of
her Dog Bite Statute claim and her claim for common-law absolute liability,
that defendant's knowledge of her dog's "dangerous propensities†was
undisputed, and that it was unnecessary to "submit the question to the jury.â€
26
remain significant factual disputes, however, regarding the information that
defendant provided to plaintiff and her employer regarding the risk posed by
the dog, plaintiff's conduct before and during the incident, and other relevant
issues. Defendant's assertion of a defense based on the Comparative
Negligence Act and her presentation of prima facie evidence supporting that
defense preclude the entry of partial summary judgment on liability based on
the Dog Bite Statute. We hold that the trial court properly denied plaintiff's
motion for partial summary judgment with respect to the Dog Bite Statute
claim.
Plaintiff's motion for partial summary judgment also addressed her
common-law claims for absolute liability and negligence. We agree with the
trial court that genuine issues of material fact regarding defendant's
communications with plaintiff and her employer, as well as the circumstances
of the dog-bite incident, preclude the entry of partial summary judgment on
liability with respect to the common-law claims. See R. 4:46-2. Our ruling,
however, does not preclude plaintiff from filing a motion for partial summary
judgment regarding her common-law claims at a later stage.
To provide guidance to the trial court on remand, we briefly address the
relationship between plaintiff's statutory claim under the Dog Bite Act and her
-----
27
common-law claims for absolute liability and negligence. As the Court
explained in DeRobertis,
[i]f a plaintiff is unable to recover under the [Dog Bite
Statute] for failure to prove any of [the statute's] three
elements, he still may have a cause of action based on
common-law principles. If a plaintiff proves scienter,
a dog-owner is absolutely liable for injuries caused by
the dangerous characteristic of the dog, unless the
owner can prove that the plaintiff was contributorily
negligent. In that event, the determination of liability
is governed by the Comparative Negligence Act.
N.J.S.A. 2A:15-5.1. If, on the other hand, the plaintiff
is unable to prove that the owner knew or should have
known of the dog's dangerous characteristics, then the
owner is liable only if the plaintiff is able to prove that
the owner acted negligently in keeping the dog. Once
again, the negligence of the plaintiff would be relevant
to determining the liability of the owner. Finally, the
owner of an abnormally dangerous dog owes a duty of
ordinary care to an infant trespasser.
[DeRobertis, 94 N.J. at 158.]5
5 The Appellate Division's decision in Jannuzzelli v. Wilkens provides an
example of a setting in which a plaintiff could not prove a claim under the Dog
Bite Statute, but could assert a common-law claim for absolute liability subject
in part to the Comparative Negligence Act. 158 N.J. Super. 36, 41-42 (App.
Div. 1978). There, the trial evidence suggested that the infant plaintiff's
injuries resulted from the dog jumping up on the child and scratching her, not
from a dog bite. Id. at 39-41. The court observed that "[n]otwithstanding
N.J.S.A. 4:19-16, a common law cause of action remains in which scienter
must be proved to establish liability when a dog injures a person, but does not
inflict a bite.†Id. at 41 (citing Hayes v. Mongiovi, 121 N.J. Super. 272, 274-
75 (Cnty. Ct. 1972)). Although the appellate court deemed the child's
contributory negligence to be irrelevant, it remanded for consideration of the
contributory negligence of the child's parents, which was pertinent to their per
quod claim. Id. at 47.
28
The trial court should apply the principles stated in DeRobertis when it
determines plaintiff's statutory and common-law claims, and decides which, if
any, of those claims should be presented to the jury. If the jury considers
either common-law claim, and defendant presents evidence of plaintiff's
negligence, the jury should allocate fault pursuant to N.J.S.A. 2A:15-5.2
and -5.3 with respect to those claims.
Outcome:
We affirm in part and reverse in part the judgment of the Appellate
Division. We remand this matter to the trial court for determination of any
further summary judgment motions filed by either party, and for trial with
respect to any issues not resolved by summary judgment.
Division. We remand this matter to the trial court for determination of any
further summary judgment motions filed by either party, and for trial with
respect to any issues not resolved by summary judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of Bonay Goldhagen v. Susan Pasmowitz and Bernice Brooks?
The outcome was: We affirm in part and reverse in part the judgment of the Appellate Division. We remand this matter to the trial court for determination of any further summary judgment motions filed by either party, and for trial with respect to any issues not resolved by summary judgment.
Which court heard Bonay Goldhagen v. Susan Pasmowitz and Bernice Brooks?
This case was heard in <center><h4><b> SUPREME COURT OF NEW JERSEY </b> <br> <br> <font color="green"><i>On appeal from The Superior Court, Appellate Division. </i></font></center></h4>, NJ. The presiding judge was Anne Patterson.
Who were the attorneys in Bonay Goldhagen v. Susan Pasmowitz and Bernice Brooks?
Plaintiff's attorney: Trenton, NJ - Best Personal Injury Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800. Defendant's attorney: Andrew Siegeltuch.
When was Bonay Goldhagen v. Susan Pasmowitz and Bernice Brooks decided?
This case was decided on March 16, 2022.