New Jersey Does Not Follow The “One Free Bite” Rule But It Does Apparently Follow The “One Free Knockdown” Rule

     by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Beware of dog (pd)I have written in the past about dog bite cases, but never about a non-bite, dog-related injury case. That changes today.

In Hackett v. Musey, plaintiff sued after being knocked down by defendants' dog during a social visit to defendants' property. Plaintiff brought her rat terrier, Chancellor, to defendants' property, where Chancellor and defendants' sixty-pound Labrador, Molly, "were permitted to run around the backyard without leashes while plaintiff observed them from a wooden swing." This bucolic scene took a turn for the worse when plaintiff got up from the swing and began walking across the backyard with Chancellor in front of her. While plaintiff was walking, she claims that Molly "suddenly knocked her down from behind, causing her to sustain injury." Neighborly niceties be damned, plaintiff sued.

Defendants moved for summary judgment. Relying on the seminal case of Jannuzzelli v. Wilkens, the trial court granted the motion. It held that "defendants had no liability for the injury caused by their dog because plaintiff could not prove defendants knew or should have known their dog would have acted in a way that would cause harm to another." Plaintiff appealed. The Appellate Division affirmed the trial court.

New Jersey approaches dog-bite cases differently from other dog-inflicted injuries. By statute, a dog owner is strictly liable for damages caused by a dog bite. In other words, New Jersey does not follow the "one free bite" approach, under which, as the name suggests, a dog owner can only be liable for damages caused by a dog bite if it had prior knowledge of the dog's propensity to bite. For non-bite cases, however, the dog owner can only be strictly liable if the plaintiff can prove scienter — i.e., that the owner had knowledge of the dog's "vicious or mischievous propensities." Notably, scienter is "not limited to malicious behavior; any prior knowledge by 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, is sufficient to sustain the action." Absent evidence of this prior knowledge (scienter) on the part of the dog owner, a plaintiff is limited to bringing a negligence action.

In Hackett, the Appellate Division agreed with the trial court that plaintiff had not presented any evidence that defendants "had knowledge, actual or constructive, that Molly possessed mischievous, excitable or  vicious propensities." It further agreed with the trial court that Molly "inadvertently" bumped into plaintiff, and that "her movement was not directed at plaintiff." As a result, plaintiff had not presented any evidence of scienter, which would result in strict liability, or negligent conduct on the part of defendants. Accordingly, the Appellate Division affirmed the trial court's decision to grant defendants' summary judgment motion and dismiss the complaint.  

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