Goldhagen v. Pasmowitz

• Citation: 255 A.3d 1191,247 N.J. 580
• Decision Date: 05 August 2021
• Docket Number: A-17 September Term 2020,084668
• Parties: Bonay GOLDHAGEN, Plaintiff-Appellant, v. Susan PASMOWITZ, Defendant-Respondent, and Bernice Brooks, Defendant.
• Court: United States State Supreme Court (New Jersey)

247 N.J. 580

255 A.3d 1191

Bonay GOLDHAGEN, Plaintiff-Appellant,

v.Susan PASMOWITZ, Defendant-Respondent,andBernice Brooks, Defendant.

A-17 September Term 2020

084668

Supreme Court of New Jersey.

Argued March 16, 2021

Decided August 5, 2021

Joseph Monaco argued the cause for appellant (Monaco Law, attorneys; Joseph Monaco, on the brief).

Andrew Siegeltuch argued the cause for respondent (Lucosky Brookman, attorneys; Andrew Siegeltuch, Westmont, on the letter brief).

Melissa M. Baxter argued the cause for amicus curiae New Jersey Association for Justice (Rossetti & DeVoto, and Grungo Colarulo, attorneys; Melissa M. Baxter and Christine V. Lafferty, Vineland, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

The Dog Bite Statute, N.J.S.A. 4:19-16, imposes liability on dog owners in personal injury actions arising from dog bites in certain settings, "regardless of the former viciousness of such dog or the owner's knowledge of such viciousness." It establishes a strict liability cause of action that a plaintiff injured by a dog bite may assert against the dog's owner if the plaintiff proves the elements set forth in the statute.

This appeal arose from an incident in which a dog owned by defendant Susan Pasmowitz bit plaintiff Bonay Goldhagen, causing a severe facial injury. At the time of the incident, plaintiff was a groomer and kennel assistant employed at a pet care facility where defendant boarded her dogs. It is undisputed that defendant told plaintiff and the facility's manager that the dog "nipped" or "bit" her son and that she urged caution in handling the dog. Nevertheless, plaintiff contends that defendant concealed the fact that the dog had previously bitten defendant in the face and downplayed the risk that the dog presented.

Plaintiff asserted a claim based on the Dog Bite Statute, as well as common-law claims for absolute liability and negligence. Granting summary judgment in favor of defendant, the trial court relied on the Appellate Division's decision in Reynolds v. Lancaster County Prison, 325 N.J. Super. 298, 323-26, 739 A.2d 413 (App. Div. 1999). In Reynolds, the Appellate Division recognized an exception to statutory liability under the Dog Bite Statute. Applying principles of primary assumption of the risk, the court held that when the plaintiff is an independent contractor who agrees to care for the defendant's dog, the plaintiff must show that the owner "purposefully or negligently conceal[ed] a particular known hazard" for liability to attach. Id. at 323-24, 739 A.2d 413 (quoting Nelson v. Hall, 165 Cal.App.3d 709, 211 Cal. Rptr. 668, 673 n.4 (Ct. App. 1985) ). The trial court in this matter viewed Reynolds to bar plaintiff's claims, given her status as a professional employed by a kennel to care for the dog, and dismissed her claims.

Plaintiff appealed. The Appellate Division applied the independent contractor exception to the Dog Bite Statute under Reynolds and affirmed the grant of summary judgment.

We granted certification. We affirm in part and reverse in part the Appellate Division's judgment and remand the matter to the trial court for further proceedings. We disagree with the Appellate Division's holding in Reynolds that the Dog Bite Statute's strict liability standard does not apply to the claim of an independent contractor who agrees to care for a dog. See ibid. The statute's plain language reveals no legislative intent to recognize an exception to strict liability under the Dog Bite Statute for any category of injured plaintiffs. See N.J.S.A. 4:19-16. Accordingly, we reverse the Appellate Division's judgment affirming the trial court's grant of summary judgment to defendant based on the Reynolds independent contractor exception.

We hold, however, that the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, applies to plaintiff's strict liability claim under the Dog Bite Statute, and that plaintiff's status as a professional experienced in the care of dogs is relevant to an allocation of fault under the Act. Our decision reversing the grant of summary judgment based on Reynolds is without prejudice to the parties’ right to file additional motions for summary judgment addressing plaintiff's statutory claim based on comparative negligence or other grounds. If the case proceeds to trial, defendant may present evidence regarding plaintiff's alleged negligence to the jury and seek an allocation of fault to plaintiff.

Turning to plaintiff's common-law claims, we agree with the trial court and the Appellate Division that genuine issues of material fact in the record warrant the denial of plaintiff's motion for partial summary judgment. Without prejudice to any further applications that the parties may present to the trial court regarding the common-law claims on remand, we affirm the Appellate Division's decision denying partial summary judgment with respect to those claims.

I.

A.

We summarize the facts based on the summary judgment record presented to the trial court.

In 2008, defendant adopted a Rottweiler mix, then ten to twelve weeks old, and named him Louie. When fully grown, the dog weighed 120 to 130 pounds.

Defendant testified at her deposition that in 2011, as she attempted to remove a tick from Louie's ear, the dog bit her left cheek, leaving her with a laceration that required thirty stitches. The hospital that treated defendant contacted her municipality's animal control officer, who investigated the incident. Defendant also testified that the dog would get upset when his nails were clipped or he was approached from behind during visits to the veterinarian and that, as an adult dog, he was routinely muzzled and frequently sedated when he was at the veterinarian's office.

Defendant testified that in late June or early July 2015, she called Scott Winston, owner of Atlantic City Pet Care Kennel, to arrange for Louie and her other dog, Otis, to be boarded while she was on vacation. Defendant stated that in that telephone call, Winston did not ask whether the dogs had been to a kennel before, and that he did not request -- and she did not volunteer -- any information about the behavior of her dogs.

On July 1 or 2, 2015, defendant dropped Louie and Otis off at Atlantic City Pet Care Kennel for boarding. Defendant testified that when she arrived at the boarding facility, she met with Winston, plaintiff, and another kennel employee. She stated that she told them that the dogs could be boarded in the same kennel but warned them that Louie should be muzzled, that they should avoid agitating him, and that they should not clip his nails or bathe him. Defendant testified that she told Winston, plaintiff, and the other employee that "you need to be leery of this dog." Defendant does not contend that she told plaintiff and the other staff members at the boarding facility that Louie had previously bitten her face.

Defendant testified that in response to those warnings, plaintiff was "dismissing" and "placating" her, and that she "actually hugged me, patted my back and said, don't worry, mommy, I've been around dogs, I know how to handle dogs." According to defendant, plaintiff "just was very dismissive to me, kind of laughing at me that I'm being overly dramatic regarding my dog."

At her deposition, plaintiff testified that defendant told her that "the dog doesn't like its nails cut" and that she had assured defendant that "we wouldn't bother cutting its nails, no problem." Plaintiff also testified that defendant told her that the dog had previously "nipped" defendant's son, but later commented that "all I remember the owner saying was the dog bit my child, period."

When she dropped her dogs off at the boarding facility, defendant spoke with Winston to complete an intake form that would be displayed outside the kennel housing Louie and Otis. The intake form, a printed form with handwritten notations, indicated that defendant's dogs "Must eat separately" -- a notation underlined and emphasized with an asterisk -- that staff should "sit with Otis to eat," and that they "Must Muzzle for nail clippings." It also included a comment that Louie should be walked in the "backyard only!" Plaintiff admitted that she did not review the intake form for defendant's dogs until after Louie bit her.

Plaintiff described the dog-bite incident.¹ According to plaintiff, a kennel staff member told her that "the dogs needed to be given a worm pill and needed to be fed separately." She testified that "there was a problem in that because we were very busy, we only had one accommodation for the dogs, so in order to separate them somebody would have to go in and sit with one of them, which is mentioned on the front page [of the intake sheet]."

Plaintiff stated that because she had to give the dogs their pills, she went into the kennel, put the dogs’ food bowls down, and put a pill in each dog's bowl. Plaintiff testified that she "sat down, looked at Louie, turned around, looked at Otis just to make sure they were getting their noses into their food, and I was sitting down next to Otis, and I was looking at them." She stated that "[w]hen I turned around to look at Louie, he was in my face biting my lip." Plaintiff stated that the dog also bit her left arm.

Winston drove plaintiff to a hospital emergency room. There, medical staff determined that plaintiff had a "significant and severe injury to the right upper lip, cupids bow, nasal base and pyramid, right lower lip, and right oral commissure," requiring "a prolonged repair." Plaintiff testified that she continues to experience numbness and pain that is "never going to go away."

The next day, Winston called defendant to report that Louie had bitten plaintiff. Defendant reported the incident to animal control. The dog was euthanized.

B.

1.

Plaintiff filed this action against defendant in the Law Division.² She alleged that in the course of her employment, she "was bitten in the face by the dog known as Louie while trying to have the dog swallow two medication...