Jannuzzelli v. Wilkins

• Court: New Jersey Superior Court – Appellate Division
• Citation: 158 N.J.Super. 36,385 A.2d 322
• Decision Date: 04 April 1978
• Parties: Joseph JANNUZZELLI and Judy Jannuzzelli, his wife, Guardian ad Litem for the infant, Denise A. Jannuzzelli, a minor, Plaintiffs-Appellants, v. Edward WILKENS and Melina Wilkens, his wife, Defendants-Respondents.

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158 N.J.Super. 36 385 A.2d 322 Joseph JANNUZZELLI and Judy Jannuzzelli, his wife, Guardian
ad Litem for the infant, Denise A. Jannuzzelli, a
minor, Plaintiffs-Appellants,
v.
Edward WILKENS and Melina Wilkens, his wife, Defendants-Respondents. Superior Court of New Jersey,Appellate Division. Submitted Dec. 13, 1977.
Decided April 4, 1978.

[385 A.2d 323]

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Alan G. Cosner, East Brunswick, for appellants.

Bennett & Daniel, Manasquan, for respondents (Cornelius W. Daniel, III, Manasquan, on the brief).

Before Judges LORA, SEIDMAN and MILMED.

The opinion of the court was delivered by

LORA, P. J. A. D.

Plaintiffs Joseph and Judy Jannuzzelli sued on behalf of their infant daughter Denise for injuries inflicted upon her by defendants' dog. Following a bifurcated trial on the issue of liability only, the jury returned a verdict of no cause for action in favor of defendants. A motion by plaintiffs for a judgment n. o. v. or in the alternative a new trial was denied by the trial judge.

On appeal plaintiffs contend that (1) the jury's verdict should be overturned since there was no evidence contradicting plaintiffs' proof that the child was bitten; (2) defendants knew the dog's vicious propensities, failed to fence the dog, and should be held liable, and (3) bifurcation of the trial

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prevented complete testimony which would have shown a bite.

[385 A.2d 324] It was uncontroverted that defendants' dog, while secured by a five-foot chain attached to his doghouse which was flush against the back of defendants' attached garage, did injure Denise on or about the face and neck, requiring medical treatment including 13 sutures. The child was 31/2 years old at the time, the parties being adjacent neighbors with their single-family homes situated on approximately half-acre plots. The Wilkens' backyard was unfenced and on the other side of their property is a school and playground which runs alongside defendants' property and around the rear property line. A number of bushes six feet apart are planted on the property line. Across the rear property line of plaintiffs' yard and along the sides to the back of their house is a fence which prevents anyone from walking from plaintiffs' property to the school yard other than by using the sidewalk.

The only eyewitness was the child herself, who was five at the time of trial. She stated that she left the playground and went over to see the dog and as she bent down to pet him he bit her. However, her testimony was contradictory in several respects. The trial judge's impression expressed on the record was that she probably had been influenced by admitted subsequent discussions of the incident, and it was doubtful, especially in light of her age, whether her recitation was completely based on her independent recollection of the event.

The dominant issues in dispute where whether the child had been scratched or bitten, whether defendants had knowledge of their dog's vicious or mischievous propensities, and whether defendants were negligent in the keeping or control of the dog. Defendants also interposed the defense of contributory negligence of plaintiffs in supervising their child. It is clear that if the child had been bitten, then the New Jersey dog bite statute would hold defendants strictly liable for damages from the attack. N.J.S.A. 4:19-16; Tanga v. Tanga, 94 N.J.Super. 5, 226 A.2d 723 (App.Div.1967); Hayes

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v. Mongiovi, 121 N.J.Super. 272, 296 A.2d 567 (Law Div.1972), aff'd 125 N.J.Super. 413, 311 A.2d 207 (App.Div.1973); Gross v. Dunham, 91 N.J.Super. 519, 221 A.2d 555 (App.Div.1966); Dower v. Goldstein, 143 N.J.Super. 418, 422, 363 A.2d 373 (App.Div.1976). The jury, in an answer to a special interrogatory, found that the child had not been bitten.

Defendants did not deny that the dog injured the child, rather, it was their position that the dog loved to be petted, and when one stopped petting him, he would jump up to try to persuade that person to continue petting him; that here the dog had only jumped up on the child and scratched her with his paws. Mr. Wilkens testified that the dog had never before bitten anyone. He did admit that the dog had a propensity to jump up on people in an attempt to get them to pet him, and in the course of such action would scratch them with his paws. This had happened on occasion. Wilkens also admitted that on two previous occasions the dog had injured small children by jumping up and scratching them on the face with his paws. On one of these occasions, while chained up in his backyard, the dog had scratched an eight-year-old boy who had been petting him.

Accepting as true all the favorable evidence and the legitimate inferences therefrom which support defendants' contention that the child was scratched and not bitten, we are satisfied that a judgment n. o. v. was properly denied as to this issue. R. 4:40-1, 2; Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969). In support of a finding that the child was scratched were the previous history of the dog's actions, including the fact that although the dog had scratched people in the past, he had never bitten anyone; photographs of the injuries taken the day after the incident; the viewing of the child's scars and their position on her face, chin and neck, and the unobjected to hearsay testimony of Mrs. Jannuzzelli from the prior municipal court proceeding that the treating physician thought that maybe the marks on the cheek were scratches and the one under the chin [385 A.2d 325] might be from a bite. Also tending to support a scratch theory was the contradictory nature

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of the child's testimony that she was bitten and that the dog had jumped up with his paws.

Furthermore, we are convinced that giving deference to the trial judge with respect to witness credibility and demeanor and "the feel of the case," a miscarriage of justice is not apparent by the denial of a motion for a new trial on the ground that the jury's finding that Denise was not bitten in answer to a special interrogatory was against the weight of the evidence. R. 2:10-1; Dolson v. Anastasia, supra at 6-7, 258 A.2d 706. Under the circumstances the jury could properly choose to disregard the child's testimony and refuse to accept plaintiffs' hypothesis of how the injury occurred.

While the record supports the jury's determination that a bite did not occur, and therefore N.J.S.A. 4:19-16 did not apply, the admissions of the defendants were such that the trial judge should have ruled in favor of plaintiffs on the common law cause of action brought for the benefit of their infant daughter. The jury had returned with a negative response to the following interrogatory:

Whether defendants Wilkens had knowledge of their dog's vicious propensities and were negligent by their failure to take reasonable precautions against their dog causing harm to Denise Jannuzzelli.

However, scienter of the dog's mischievous...