Defendant homeowners’ dog, Ringo, a miniature bull terrier, bit plaintiff Joseph Bernstein while at their home. At the time, he was visiting their dog sitter, who was caring for their dog while they were on vacation for two weeks. The issue in Bernstein v. Nossel, 2023 N.J. Super. Unpub. LEXIS 681 (App. Div. May 5, 2023), was whether the strict liability dog bite statute, N.J.S.A. 4:19-16 applied when defendants had no knowledge that their dog sitter’s friend, the plaintiff, would be coming over to visit her. Defendants contended that Plaintiff qualified as a “trespasser.”
In this case, plaintiff moved for a summary judgment on liability based upon the dog bite statute. The trial judge denied both the motion and the plaintiff’s subsequent motion for reconsideration, finding that there was a fact issue whether plaintiff was lawfully on the premises. That decision was appealed to the Appellate Division.
Defendant Kerri Nossel had asked Sarah Shore to house-sit for them and care for their dog for two weeks in October 2019 while they and their children vacationed out of the country. She knew Shore was not married. She told Shore that a mutual friend named Judy could visit Shore in their home while she was house sitting but she did not tell Shore that she was forbidden from having any other visitors.
Toward the end of her house-sitting assignment, Shore invited plaintiff, her friend, over to the house. Shore had texted plaintiff, telling him that she was dog sitting and that she was kind of stuck there and would love to have visitors. Plaintiff understood that she was lonely and wanted to have some company.
When plaintiff arrived at the house, the front door was left open. He played with Defendants’ dog for about 45 minutes, after which, he advised Shore that he was exhausted and needed about 10 minutes to put his head down alone. Shore told him to go upstairs and lie down in the bed and she would wake him up in 10-15 minutes.
Thereafter, Shore took Ringo out for a walk. When she went upstairs to wake him up, the plaintiff was still in the bed. The dog ran into the room, jumped on the bed, clamped his mouth onto plaintiff’s foot, shaking it back and forth. Ringo bit through and broke plaintiff’s phalanx bone and a second toe. He was subsequently taken by ambulance to a hospital where he had surgery and stayed for several days.
Plaintiff filed this complaint, alleging that he had been invited to the defendants’ house by their dog sitter and was lawfully at the home when defendants’ dog repeatedly bit him, causing him severe and permanent injuries. He claimed that defendants were strictly liable under the dog bite statute, N.J.S.A. 4:19-16. In order to recover under this statute, a plaintiff must prove the following:
- The defendant owned the dog;
- The dog bit the plaintiff; and
- The bite occurred while the plaintiff was in a public place or lawfully in a private place, including the property of the owner of the dog.
Thereafter, plaintiff filed for summary judgment as to the issue of liability. He argued that he satisfied the statute’s three elements because defendants owned Ringo, Ringo had bit him, and he had been a lawfully-present guest in defendants’ house.
Defendants opposed that motion, arguing that there was an issue whether plaintiff was a trespasser because based upon plaintiff’s Orthodox Jewish faith and his knowledge of defendants’ faith, he could not reasonably have believed he belonged in their home, yet alone with Shore or in the upstairs bedroom. Both plaintiff and defendants and Shore were all observant Orthodox Jews and defendants asserted that under Orthodox Jewish law, it “strictly prohibits unrelated single men and single women, like plaintiff and Ms. Shore, from being alone together in a secluded location, like defendants’ home, unchaperoned.”
While plaintiff admitted that all parties were Orthodox Jews, he contended that the law of “Yichud,” prohibits a Jewish adult from being alone in a closed, locked space with another adult of the opposite gender if they are unmarried and if no other person might unexpectedly enter this space.” Defendants, on the other hand, understood Yichud “as prohibiting a man and a woman from being together alone in a secluded location if they are unmarried and unrelated.” Shore’s view of the concept of Yichud was that it was a very grey area in Jewish law that allowed an unrelated and unmarried man and woman to be in the same vicinity in the same house or the same room “as long as someone is able to come in and see what is going on . . . and as long as there’s not an extended period of time that they are in the same room.”
The trial court judge found that plaintiff had established the first two prongs of the dog bite statute. The judge also found that defendants had not specifically limited the people Shore could invite to the home while she was housesitting, and that Shore had extended an invitation to plaintiff. However, the judge referenced Yichud and found that “plaintiff’s knowledge of Jewish law raises a triable issue regarding his reasonable interpretation of the invitation” extended to him. Hence, the court found that there was an issue of fact, precluding a summary judgment.
Plaintiff filed an application with the Appellate Division for leave to appeal, which was granted. Plaintiff argued that he had met all the elements of the dog bite statute and the judge made a mistake in denying his motion. Further, he argued that the motion judge was confused on the issue of whether plaintiff’s presence in defendants’ home was lawful with the question of whether it was moral under Jewish law, an irrelevant consideration under the dog bite statute.
The Appellate Division disagreed with the motion judge that plaintiff’s knowledge of Jewish law created a genuine issue of material fact as to the third prong of the dog bite statute, thus concluding that the trial court judge made a mistake in denying plaintiff’s summary judgment motion. Hence, the Appellate Division reversed and remanded the matter back to the trial court.
The Appellate Division found that the third prong of the dog bite statute, whether a plaintiff was lawfully in a private place was to be broadly construed to “include all those who have express or implied permission to be on the owner’s property.” That would include those lawfully on the property, including both invitees and licensees (including social guests), but not trespassers and “anyone whose presence is expressly or impliedly permitted on the property should be entitled to the protection of the statute.”
Under the facts of this case, the defendants retained Shore as their house and dog sitter. They knew she was an unmarried woman but did not tell her she could not have guests and did not limit the type of guests she could have or where the guests could be in their house. Shore did invite plaintiff over to the house and directed him to nap in the upstairs bedroom and the defendants’ dog bit plaintiff while in defendants’ home.
The Appellate Division rejected the trial court’s decision that the custom of Yichud, essentially converted plaintiff into a trespasser. The Court pointed out that the record demonstrated that the parties did not have a common understanding or practice. The Court found that plaintiff “reasonably believed” that the invitation permitted him to be where he was when defendants’ dog bit him. The Appellate Division noted that “[n]othing in the record demonstrates plaintiff knew or should have known defendants had a different understanding and interpretation of Yichud that he and Shore had.”
Hence, the Appellate Division reversed and remanded for proceedings consistent with their opinion.
