The plaintiff Terri Hackett brought her rat terrier, Chancellor, to the property of the defendants William and Joan Musey to play with Molly, their sixty pound Labrador. While the dogs were running around the backyard, Molly suddenly knocked plaintiff down from behind, causing her injury. In Hackett v. Musey, 2017 N.J. Super. Unpub. LEXIS 721 (App. Div. March 24, 2017), the plaintiff argued that the defendants were negligent for allowing their sixty pound dog to run around freely on their property in the presence of guests.
If there was an injury due to a dog bite, the New Jersey statute, N.J.S.A. 4:19-16, imposes absolute liability on a dog owner for damages caused by the bite. Absent a dog bite, a common law claim for absolute liability is available to a plaintiff injured by the actions of a dog if a plaintiff can prove “scienter”- knowledge – of the dog’s “vicious or mischievous propensities.” Scienter is not limited to malicious behavior. It would include any prior knowledge of the dog owner that “the disposition of the animal is such that it is likely to commit a similar injury to that complained of, be it in anger or play.” Without scienter, an injured plaintiff is limited to bringing a negligence action.
In this case, the trial court judge granted summary judgment in favor of the defendants and the plaintiff appealed. The judge found that the plaintiff had presented no proof of scienter or negligent conduct by the defendants. Without scienter, the trial judge could not find any way to conclude that the defendants knew of, and nonetheless allowed, their dog to act in a way that would cause harm to another.
The Appellate Division agreed and affirmed the order, dismissing the case as to the defendants. The Court found that there was no evidence presented that the defendants had any knowledge, actual or constructive, that Molly possessed mischievous, excitable or vicious propensities. The judge concluded that the plaintiff’s injury occurred when Molly inadvertently bumped into plaintiff while chasing plaintiff’s dog. Further, the plaintiff knew the dogs were running around the backyard unleashed and failed to either insist that defendant’s dog be placed on a leash or remove her own dog from the yard.
This case points out the different standards applied by the New Jersey courts when there is an injury caused by a dog. If the injury is not caused by an actual dog bite, there is no statutory strict liability. There could still be a claim for common law “absolute” liability if the owner had prior knowledge of the dog’s “dangerous” propensities. Otherwise, a simple negligence standard applies to the claim.
