Tanga v. Tanga, No. A--1116

• Court: New Jersey Superior Court – Appellate Division
• Citation: 226 A.2d 723,94 N.J.Super. 5
• Decision Date: 05 January 1967
• Parties: Rosalie M. TANGA, individually and as guardian ad litem for Robert Tanga, etc., Plaintiffs-Appellants, v. Louis TANGA, Defendant-Respondent.
• Docket Number: No. A--1116

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94 N.J.Super. 5 226 A.2d 723 Rosalie M. TANGA, individually and as guardian ad litem for
Robert Tanga, etc., Plaintiffs-Appellants,
v.
Louis TANGA, Defendant-Respondent. No. A--1116. Superior Court of New Jersey
Appellate Division. Argued Nov. 28, 1966.
Decided Jan. 5, 1967.

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Myron J. Bromberg, Morristown, for appellants (Porzio, Bromberg & Newman, Morristown, attorneys).

Martin Newmark, Morristown, for respondent (George P. Helfrich, Chatham, attorney).

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

This case presents for the first time the necessity for an appellate court to squarely decide whether New Jersey's 'dog-bite' statute establishes a general rule of strict tort liability for injuries inflicted to another by the bite of one's dog. We hold that it does.

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The statute, R.S. 4:19--16 (L.1933, c. 427), N.J.S.A., reads as follows:

'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.

[226 A.2d 724] For the purpose of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof.'

In Foy v. Dayko, 82 N.J.Super. 8, 196 A.2d 535 (App.Div.1964), certification denied 41 N.J. 602, 198 A.2d 446 (1964), we had occasion to consider whether under this act contributory negligence of the victim barred recovery. We held that it did, whether or not the statute was otherwise construable as positing liability on fault or negligence though barring the previous defense of Non-scienter, rather than as creating strict liability regardless of the owner's fault. We refrained from decision of the latter question--that now confronting us--because the issue had not been adequately briefed or argued and was not essential for determination in deciding the issue as to contributory negligence. In Foy we thought the statute 'distressingly ambiguous on its face' (at p. 13).

More recently we described the statute as 'remedial legislation entitled to a liberal interpretation.' Gross v. Dunham, 91 N.J.Super. 519, 522, 221 A.2d 555, 557 (App.Div.1966).

The evidence at the trial here was as follows. The infant plaintiff, a child of eight, was bitten on the cheek by a cocker spaniel while a guest at the home of his uncle, owner of the dog. The boy testified that he was going to pet the dog when it jumped at him and bit him. The child's father gave testimony that defendant told him after the accident that the dog had had sore ears at the time. This was denied by

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defendant. The issue of contributory negligence was abandoned at trial.

The trial judge refused to permit plaintiffs' counsel in summation to tell the jury that the statute created strict liability without regard to negligence and charged the jury, in effect, that plaintiffs could not recover unless they showed negligence. The jury was instructed that the only effect of the statute was to relieve plaintiffs of the necessity of proving the viciousness of the animal and defendant's knowledge thereof. Adequate objection was made by plaintiffs to that portion of the charge. The jury returned a verdict of no cause of action; hence plaintiffs' appeal.

Ordinarily, in attempting to discern the meaning of an ambiguous statute, particularly in the area of the common law, it is useful to examine the pre-existing state of the law for clues as to the legislative conception of the 'mischief' in the prior law and the 'remedy' envisaged therefor through the new legislation. 50 Am.Jur. Statutes, § 305, p. 291; Pine v. Okzewski, 112 N.J.L. 429, 435, 170 A. 825 (E. & A.1934).

A mere reading of the statute denotes, at the least, legislative concern with the prior apparent barrier to recovery constituted by the dog owner's lack of knowledge (scienter) of any previous viciousness of the dog. Knowledge by owners or harborers of any vicious or injurious propensities of their domestic animals, like dogs, operated at common law to put such owners in the same liability category as keepers of wild or undomesticated animals, presumed to be harmful. Keepers of such animals were subject to strict liability to victims of injuries therefrom as insurers. Prosser on Torts (3d ed. 1964), pp. 513, 514; 2 Harper and James, Torts (1956), § 14.11, pp. 833--835; 3 C.J.S. Animals § 151, pp. 1256, 1257. There is an abundance of New Jersey cases recognizing these principles and the underlying rationale that Scienter of the dog's viciousness causes liability to rest on the mere harboring of the animal--not on negligence in its keeping and control. Emmons v. Stevane, 77 N.J.L. 570, 572, 73 A. 544, 24 L.R.A.,N.S., 458 (E. & A. 1909); Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458

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(Sup.Ct.1947)[226 A.2d 725] (not affected by the statute because injury other than bite); Dranow v. Kolmar, 92 N.J.L. 114, 104 A. 650 (Sup.Ct.1918); see, apparently assuming the rule to be as stated and applying it without discussion, Gladstone v. Brinkhurst, 70 N.J.L. 130, 56 A. 142 (Sup.Ct.1903); Perkins v. Mossman, 44 N.J.L. 579 (Sup.Ct.1882); Evans v. McDermott, 49 N.J.L. 163, 6 A. 653 (Sup.Ct.1886); Roehers v. Remhoff, 55 N.J.L. 475, 26 A. 860 (Sup.Ct.1893).

An aberrant note was introduced by the decision by the former Supreme Court, per Chief Justice Gummere, in DeGray v. Murray, 69 N.J.L. 458, 55 A. 237 (Sup.Ct.1903), which held that notwithstanding the owner's knowledge of his dog's viciousness he could not be held liable where he had exercised due care in confining the animal indoors but it had nevertheless broken out into the street. The basis for the decision was the court's outright disagreement (at pp. 460--461, 55 A. 237) with the leading British decision for...