NJ Supreme Court Rules Dog Bite Statute’s Strict Liability Applies to Independent Contractor

In Bonay Goldhagen v. Susan Pasmowitz (A-17-20/084668) (Decided August 5, 2021), the Supreme Court of New Jersey held that the Dog Bite Statute’s strict liability standard applies to the claim of an independent contractor who agrees to care for a dog. According to the court, 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.

Facts of Goldhagen v. Pasmowitz New Jersey’s Dog Bite Statute, N.J.S.A. 4:19-16, establishes a strict liability cause of action that a plaintiff injured by a dog bite may assert against the dog’s owner. In this appeal, the Court considers whether the Dog Bite Statute includes an exception, based on primary assumption of the risk, for independent contractors hired to care for a dog.

In July 2015, defendant Susan Pasmowitz’s Rottweiler mix, Louie, 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 Louie and her other dog, Otis. Defendant told plaintiff and the facility’s manager that Louie had “nipped” or “bit” her son, and she urged caution in handling the dog. Defendant completed an intake form that was displayed outside the kennel housing Louie and Otis. The intake form indicated that defendant’s dogs “Must eat separately” — a notation underlined and emphasized with an asterisk — and that staff should “sit with Otis to eat.”

Plaintiff admitted that she did not review the intake form for defendant’s dogs until after Louie bit her. According to plaintiff, a kennel staff member told her that the dogs needed to be fed separately. Plaintiff testified that the facility was very busy and “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.” Plaintiff stated that when she was sitting next to Otis after putting the dogs’ food bowls down in their kennel, she turned around to look at Louie, and he bit her.

Plaintiff asserted a claim based on the Dog Bite Statute, as well as common-law claims for absolute liability and negligence. The trial court granted defendant’s motion for summary judgment, relying on an independent contractor exception to strict liability under the Dog Bite Statute recognized by the Appellate Division in Reynolds v. Lancaster County Prison, 325 N.J. Super. 298 (App. Div. 1999). The trial court denied plaintiff’s cross-motion for partial summary judgment on the issue of liability with respect to her common-law claims. The Appellate Division affirmed the grant of summary judgment to defendant and denial of plaintiff’s cross-motion.

NJ Supreme Court’s Decision in Goldhagen v. Pasmowitz

The New Jersey Supreme Court reversed the Appellate Division’s holding 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. “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,” the court wrote.

In reaching its decision, the New Jersey Supreme Court found that the Appellate Division improperly recognized in Reynolds an exception to the Dog Bite Statute for an independent contractor hired to care for a dog. “Nothing in the provision suggests that the Legislature intended to exclude any category of dog owners from statutory liability, let alone any indication that claims asserted by independent contractors who have agreed to care for a dog are exempt from the statute’s general rule,” the court wrote. “[T]he Legislature’s choice not to incorporate assumption of the risk into the Dog Bite Statute for independent contractors — or any other category of plaintiffs — signals its intent not to limit the statute’s strict liability rule.

The New Jersey Supreme Court further found that the Comparative Negligence Act applies to plaintiff’s strict liability claim under the Dog Bite Statute. As the court explained, when a plaintiff pursues a strict liability claim under the Dog Bite Statute and the defendant asserts the plaintiff’s negligence as a defense under the Comparative Negligence Act, the plaintiff’s negligence may bar the statutory claim, or diminish her recovery of damages in that claim. In this case, the court found that the plaintiff’s status as a professional experienced in the care of dogs is relevant to an allocation of fault under the Act.

Finally, the New Jersey Supreme Court held that genuine issues of material fact warrant the denial of plaintiff’s motion for partial summary judgment on her common-law claims. “There remain significant factual disputes, however, regarding the information that defendant provided to plaintiff and her employer regarding the risk posed by the dog, plaintiff’s conduct before and during the incident, and other relevant issues,” the court wrote. “Defendant’s assertion of a defense based on the Comparative Negligence Act and her presentation of prima facie evidence supporting that defense preclude the entry of partial summary judgment on liability based on the Dog Bite Statute.”

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