Dog (Bite) Days of Summer, Part I: Owners Usually, But Not Always, Strictly Liable For Dog Bites

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

Beware of dog (pd)As dog owners in New Jersey know, or should know, they are usually strictly liable for injuries suffered by anyone bitten by their dogs. New Jersey does not follow a "one free bite rule." Instead, under New Jersey law: "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."

There are, however, exceptions to this rule. For example, trespassers, who are obviously not "lawfully on or in a private place," cannot sue under the dog bite statute. A different exception was at play in Carpentiero v. Pocknett, where a dog groomer was bitten in the face by a dog while bathing the dog. In that case, defendant brought her dog to Katie's Pet Depot, where plaintiff, an independent contractor, worked as a part-time pet groomer. Plaintiff testified that had she been advised that the dog was old and had arthritis, she would have "muzzled the dog prior to grooming." But she was never told that, therefore she did not muzzle the dog, and, while she was bathing the dog, she was bitten in the face.  

Plaintiff sued defendant under the dog bite statute and for common law negligence. Defendant successfully moved for summary judgment on both, and plaintiff appealed.  This post focuses on the appeal of the strict liability claim, which is the more interesting aspect of the case.

The Appellate Division affirmed the trial court's decision. It noted that strict liability under the dog bite statute can be subject to a contributory negligence or "assumption of the risk" defense when "plaintiff knows the dog has a propensity to bite either because of the dog's known viciousness or because of the plaintiff's deliberate acts intended to incite the animal." Like the trial court, the Appellate Division relied upon a prior decision, Reynolds v. Lancaster County Prison, for this proposition. Reynolds "involved a Rottweiler, trained as an attack dog for prisoner control, which had been donated by a Pennsylvania prison to a commercial enterprise" that utilized dogs for security services. One day, while in its kennel, the dog attacked plaintiff, an independent contractor working for the company. The independent contractor sued and was awarded a "sizeable money judgment[]." On appeal, the court reversed, holding that "the absolute liability provisions of the New Jersey [dog bite] statute did not apply to independent contractors." It arrived at this conclusion by comparing the plaintiff in that case to a veterinarian, who "should not be entitled to take advantage of the absolute liability provisions [of the dog bite statute] because a veterinarian is in the profession of caring for dogs." And, "[a]s such, a veterinarian has special skills and experience to recognize whether dogs are vicious or prone to bite and thus is in the best position to take necessary precautions."

The Appellate Division held that the "circumstances presented [in Carpentiero were] similar to Reynolds in that plaintiff was an experienced dog groomer." She "undertook the grooming of defendant's dog with the work experience to recognize the risk of a bite and to take precautionary measures." In fact, the Appellate Division noted that plaintiff acknowledged that she could have muzzled the dog as a precautionary measure but chose not to. The Appellate Division also observed that there was no proof that defendant was "aware of a dangerous propensity of her dog, which she intentionally or negligently concealed." This, plus plaintiff's status as an experienced dog groomer, removed the case from the realm of strict liability under the dog bite statute.

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