Recent Appellate Division Opinion Regarding Strict Liability

The Appellate Division on June 8, 2020 rendered an interesting as yet unpublished Opinion related to strict liability and exceptions thereto.  The matter is Goldhagen v. Pasmowitz, No. A-3430-18T4, 2020 WL 3041414 (App. Div. June 8, 2020).

Plaintiff Bonay Goldhagen appealed an Order granting Defendant Susan Pasmowitz’s Motion for Summary Judgment and denying her Cross-Motion for Summary Judgment on liability. The Appellate Division affirmed.

Factually, in July of 2015, Defendant Pasmowitz boarded “Louie,” an approximately 120-pound Rottweiler mix, and a second, smaller dog at a “dog hotel.”  Plaintiff was employed as a dog groomer and kennel assistant at the dog hotel. Significantly, Plaintiff had twenty (20) years of experience in the business, and was therefore indisputably aware that dogs can and do bite.

Further, Defendant specifically informed Plaintiff that Louie had previously bitten her own son. Indeed, Defendant alleged that when she advised Plaintiff that Louie was a very strong dog, and thus Plaintiff should “trust” him, as the dog was going to “throw his weight around,” Plaintiff dismissively responded that she knew how to handle dogs.

Defendant also noted on the kennel’s intake form that Louie must “eat separately from (her other dog)” and also must be “muzzle[d] for nail clippings.”

However, Defendant did not advise Plaintiff that Louie had bitten Defendant herself on the face, requiring Defendant to receive about thirty stitches, four (4) years earlier when Defendant removed a tick from his ear.  Plaintiff would rely heavily on this omission.

Thereafter, on the very first day of the dogs’ boarding, Plaintiff was feeding the two dogs together when she was bitten by Louie.

Plaintiff filed suit, and upon completion of discovery, Defendant moved for Summary Judgment and Plaintiff crossed-moved for Partial Summary Judgment on liability.

The Law Division Judge entered an Order and oral decision granting Defendant Summary Judgment and denying Plaintiff’s Cross-Motion.

The Judge relied primarily on Reynolds v. Lancaster Cty. Prison, 325 N.J. Super. 298, 323-44 (App. Div. 1999) where the Appellate Division had limited the absolute liability of dog owners under N.J.S.A. 4:19-16, by holding that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner for a dog bite unless the dog owner “purposefully or negligently conceal[ed] a particular known hazard from the” independent contractor.

The Law Division Judge noted that while Defendant did not tell Plaintiff of the severe bite that she herself had sustained from her dog, this was far outweighed by the fact that Plaintiff was an experienced dog handler, and as such knew dogs sometimes bite; that Plaintiff knew the specific dog had previously bitten a child and needed muzzling for nail clipping; and that Plaintiff had seen co-workers previously bitten by dogs.

Thus, the Judge found that this was insufficient to create a genuine issue of material fact to defeat Defendant’s Motion. Rather, the Court found that Plaintiff had possessed adequate information provided by the Defendant regarding Louie’s specific history.

Notably, the Judge found that “the quality or consequences … of the dog bite” was not relevant or a material inquiry in this instance to defeat the Summary Judgment Motion.

The Judge held that as Plaintiff was a long-time professional in this industry, she should have taken necessary precautionary measures to safely address the needs of a dog, as well as her own.

Plaintiff appealed, arguing any assumption of risk and comparative negligence did not apply under N.J.S.A. 4:19-16 and she was entitled to Partial Summary Judgment on liability under the statute.

N.J.S.A. 4:19-16 states, in relevant part:

“The 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.”

To recover under [the statute], a Plaintiff must prove that the Defendant owned the dog, that the dog bit the Plaintiff, and that the Plaintiff was in a public place or lawfully on the owner’s property.” DeRobertis v. Randazzo, 94 N.J. 144, 158 (1983). “Satisfaction of the elements of the statute imposes strict liability … for damages sustained by [the] Plaintiff.” Pingaro v. Rossi, 322 N.J. Super. 494, 503 (App. Div. 1999).

However, in Reynolds, recognizing an exception to the imposition of strict liability, the Appellate Division held 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, as described in Emmons v. Stevane, 77 N.J.L. 570, 573-74 (E. & A. 1908)], 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.

325 N.J. Super. at 324.

The Appellate Division held that the principles articulated in Reynolds applied to this case.  The Plaintiff in Reynolds had worked for a guard dog company as a dog handler and he was seriously injured when one of the company’s dogs attacked him. Id. at 306. Of course, in general, a landowner has the duty to “use reasonable care to protect independent contractors [from] ‘known or reasonably discoverable dangers.’” Id. at 321-22.  The Court was persuaded by case law from other states regarding veterinarians, and held that “a veterinarian has all of the characteristics of an independent contractor” and “the owner [of a dog] 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.” Id. at 324.

Accordingly, the Appellate Division held that like the dog handler in Reynolds, Plaintiff was an independent contractor who “agree[d] to care for a dog.” Ibid. She was “aware of the risk that any dog, regardless of its previous nature, might bite while being” cared for. Ibid. And as the Motion Judge determined, even though Defendant did not tell Plaintiff that Louie had bitten her, there was no dispute that Plaintiff was made aware of several crucial facts, including Louie’s aggressive nature; that he had bitten Defendant’s son; that he had to be muzzled during nail clippings; and that he should not be fed with Otis – “the latter being the precise situation when Plaintiff was bitten.”

Accordingly, the Appellate Division concluded that, based on the evidence presented, a reasonable factfinder could only reach one conclusion: that Plaintiff had sufficient warning that Louie might bite her while she was caring for him. Thus, as there was no genuine issue of material fact, as a matter of law, Defendant was entitled to Summary Judgment.

While the fact pattern of this matter is of course extreme, this opinion is an important reminder that there can be exceptions even in situations where the general rule is that of strict liability.  Similarly, the arguments in this matter as to dog groomers and veterinarians could easily be analogized to any number of other backgrounds with which a given Plaintiff may present.  Therefore, consideration should be given to an analysis of exactly what knowledge a given Plaintiff possessed, along with any information provided to that Plaintiff by the Defendant, before assuming that strict liability applies.

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