Opinion
DOCKET NO. A-3928-12T1
11-10-2014
MARYANNE SANDERS and STEVEN SANDERS, Plaintiffs-Respondents, v. JIMMIE JOHNSON, Defendant-Appellant.
Justin R. White argued the cause for appellant (Testa, Heck, Scrocca & Testa, P.A., attorneys; Mr. White and Renee E. Scrocca, on the briefs). Kenneth G. Andres, Jr., argued the cause for respondents (Andres & Berger, P.C., attorneys; Mr. Andres, of counsel and on the brief; Tommie Ann Gibney, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Maven and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2984-11. Justin R. White argued the cause for appellant (Testa, Heck, Scrocca & Testa, P.A., attorneys; Mr. White and Renee E. Scrocca, on the briefs). Kenneth G. Andres, Jr., argued the cause for respondents (Andres & Berger, P.C., attorneys; Mr. Andres, of counsel and on the brief; Tommie Ann Gibney, on the brief). The opinion of the court was delivered by HOFFMAN, J.A.D.
Defendant dog owner appeals from August 17, 2012 Law Division orders denying his motion for summary judgment and granting plaintiffs' cross-motion for summary judgment. Defendant's appeal presents the question of whether the independent contractor exception to the New Jersey dog-bite statute, N.J.S.A. 4:19-16, should apply where a dog bites an employee of a veterinarian before the owner has relinquished control of his or her dog. After careful review of the statutory language and applicable case law, we determine the exception does not apply, and the motion judge correctly found defendant liable under the statute. Accordingly, we affirm.
I
We derive the following facts from the motion record. On June 16, 2009, plaintiff Maryanne Sanders, a veterinary assistant at the Maple Shade Animal Hospital (Hospital), was advised defendant was in the Hospital parking lot with his dog, Rock, a ninety-pound mixed German Shepard. Defendant needed assistance carrying the dog into the Hospital. A note indicated Rock appeared to be in pain and was having difficulty walking. Before going outside, plaintiff reviewed Rock's file, and noted there was no indication of any propensity to bite. Plaintiff went outside to the parking lot, however, as plaintiff approached, defendant picked up Rock alone and began carrying him toward the front door of the Hospital. When he was about halfway to the front door, defendant began to lose his grip. Plaintiff reached out for the Rock's collar, trying to prevent him from falling to the ground. Before she could reach Rock or his collar, Rock bit her wrist and hand. The resulting injury required plaintiff to undergo three surgical procedures.
We refer to Maryanne Sanders individually as "plaintiff", and Maryanne and Steven Sanders collectively as "plaintiffs." Steven Sanders' sues per quod.
At the completion of discovery, defendant moved for summary judgment, contending plaintiff, as a veterinarian assistant, assumed the risk of a dog-bite injury. Plaintiffs filed a cross-motion for summary judgment, contending the dog-bite statute applied to defendant and rendered him strictly liable for plaintiffs' injuries. Following argument, Judge John T. Kelley denied defendant's motion and granted plaintiff's' motion, finding the dog-bite statute applied because defendant had control of Rock when the bite occurred. Thereafter, the parties agreed to a settlement subject to defendant's right to appeal the Law Division's summary judgment rulings.
II.
In reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). First, we decide if there is a genuine issue of material fact, and if there is not, then we decide if the trial court's application of the law was correct. Ibid. The parties agree there is no genuine issue of material fact. We review the factual record in the light most favorable to defendant, against whom summary judgment was entered. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).
The Legislature adopted a general rule of absolute liability under the dog-bite statute. N.J.S.A. 4:19-16. In pertinent part, the statute provides:
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, . . . 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.To establish a right of recovery under the statute, a plaintiff must prove that: (1) the defendant is the owner of the dog; (2) the dog bit the plaintiff, and (3) the plaintiff was either bitten in a public place, or lawfully present in a private place. DeRobertis v. Randazzo, 94 N.J. 144, 151 (1983).
[N.J.S.A. 4:19-16.]
We construed the statute in a limiting fashion in Reynolds v. Lancaster County Prison, 32 5 N.J. Super. 298, 324 (App. Div. 1999), recognizing a liability exception for independent contractors who have agreed to care for a dog and are bitten in the course of care. The facts in Reynolds involved a Rottweiler, trained as an attack dog for prisoner control, which had been donated by a Pennsylvania prison to a commercial enterprise, defendant Guard Dogs Unlimited, Inc. (Guard Dogs). Id. at 306. Guard Dogs owned about fifty dogs, which were rented to businesses for private nighttime security. Id. at 309. The dogs were kept in kennels in a warehouse or maintained by Guard Dogs in kennels on the customer's premises. Ibid. While kenneled, the dog in question attacked and bit an independent contractor of Guard Dogs, Martin Abbott. Id. at 306. A few weeks later, the same dog attacked and bit Guard Dogs' principal, Glen Reynolds. Ibid. Abbott sued both Guard Dogs and the prison; Reynolds sued the prison alone. Ibid. In a consolidated trial, the jury found both defendants negligent, and both Reynolds and Abbott obtained sizeable money judgments. Ibid.
In Reynolds, after analyzing the facts and the applicable legal principles, we concluded the absolute liability provisions of the New Jersey statute did not apply to independent contractors such as Abbott. Id. at 324. We relied primarily on Nelson v. Hall, 165 Cal. App. 3d 709 (Ct. App. 1985), a California case interpreting a similar dog-bite statute. Reynolds, supra, 325 N.J. Super. at 325. In Nelson, supra, 165 Cal. App. 3d at 715, the court held that "assumption of the risk is a complete defense to an action by a veterinary assistant against a dog owner for damages for injuries suffered from being bitten by the owner's dog during the course of medical treatment."
Nevertheless, we affirmed Abbott's recovery of damages from Guard Dogs based upon common-law negligence, as the record supported a finding that Guard Dogs had not conducted a reasonable investigation into the dog's history. Reynolds, supra, 325 N.J. Super. at 324-25.
The court in Nelson extended the rationale of the fireman's rule to veterinarians and their assistants who are bitten while animals under their control are receiving care and treatment. Id. at 714-15. There, a veterinary assistant who was unaware of any vicious propensities of a dog brought in for a minor operation, was bitten without warning while holding the animal on the operating table. Id. at 712. In announcing a "veterinarian's rule," the court ruled dog bites during treatment are an occupational hazard which veterinarians and their assistants accept by undertaking their employment. Id. at 715.
The firemen's rule provides "firefighters injured while fighting a fire have no cause of action against the person whose negligence caused the fire in question." Nelson, supra, 165 Cal. App. 3d at 714.
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However, a careful review of the court's opinion in Nelson makes clear the court only addressed the situation where the bite injury occurred after the owner relinquished control of the dog for care and treatment:
The veterinarian determines the method of treatment and handling of the dog. He or she is the person in possession and control of the dog and is in the best position to take necessary precautions and protective measures. The dog owner who has no knowledge of its particular vicious propensities has no control over what happens to the dog while being treated in a strange environment and cannot know how the dog will react to treatment. A dog owner who does no more than turn his or her dog over to a qualified veterinarian for medical treatment should not be held strictly liable when the dog bites a veterinarian or a veterinary assistant while being treated.The court added a footnote, explaining:
[Nelson, supra, 165 Cal. App. 3d at 715.]
This does not mean dog owners could never be held liable for injuries to veterinarians or their assistants. We emphasize that the defense of assumption of the risk extends only to the danger which the injured person has knowingly assumed; i.e., the danger the dog will bite while being treated.The court concluded by expressly limiting its holding as applying to the injuries suffered by veterinary workers "bitten by the owner's dog during the course of medical treatment." Ibid.
[Id. at 715 n.4 (emphasis in original).]
The facts and circumstances here are markedly dissimilar from those in Nelson. Rock bit plaintiff before control of the dog was transferred to the Hospital and before the Hospital rendered any treatment. Defendant decided not to wait for plaintiff's help to carry Rock into the Hospital. Instead, he elected to try and carry Rock by himself, thus retaining complete and exclusive control of the dog. Moreover, defendant's attempt to carry Rock alone precipitated the bite. As defendant was solely in control of Rock, and as plaintiff was not providing any care or treatment to Rock when the bite occurred, we discern no basis to exclude plaintiff from the protection of the statute.
Defendant argues Judge Kelley erred when he ruled in plaintiffs' favor, contending the dog-bite statute is "not available to persons who assume the risk of a dog bite in the course of their employment." We disagree. We discern no intent of the Legislature to exclude all animal care workers from the protection of the statute. The exception to the applicability of the statute, as set forth in Reynolds and Nelson, was carefully drawn based upon the transfer of care, custody, and control of the dog. Any further expansion of this exception must come from the Legislature. See Mazzacano v. Estate of Kinnerman, 197 N.J. 307, 323 (2009) ("We cannot, and should not, rewrite a plainly-written enactment of the Legislature or write in an additional qualification which the Legislature pointedly omitted. Our duty is to construe and apply the statute as enacted.") (citations and internal quotation marks omitted).
There is no question plaintiff satisfied the three elements necessary to establish defendant's liability under the dog-bite statute. Defendant owned Rock, Rock bit plaintiff, and the bite occurred while plaintiff was lawfully on her employer's property. DeRobertis, supra, 94 N.J. at 151. As the facts and circumstances supporting the exception recognized in Reynolds and Nelson were not present, satisfaction of the elements of the statute imposes strict liability upon defendant for plaintiffs' damages.
Defendant's decision to carry his dog into the Hospital without assistance clearly demonstrated sole and exclusive control over Rock at the time the bite occurred. Judge Kelley correctly determined the dog-bite statute applied, requiring entry of summary judgment in plaintiffs' favor. Accordingly, we affirm.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION