A dog bite victim in New Jersey can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort.
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New Jersey is among the majority of American states that makes a dog owner legally liable for all of the damages inflicted upon a dog bite victim, even if the dog had never previously exhibited the propensity to bite humans. This liability results from New Jersey Statutes, section 4:19-16, which reads as follows:
4:19-16. Liability of owner regardless of viciousness of dog
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.
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.
To recover under N.J.S.A. 4:19-16, a plaintiff must prove only that the defendant owned the dog, that the dog bit the plaintiff, and that the plaintiff was in a public place or lawfully on the owner's property. If the statute does not apply, a cause of action also can be based upon common law strict liability for scienter, negligence, and negligence per se. De Robertis v. Randazzo, 94 N.J. 144 (1983). For more about those causes of action, see Legal Rights of Dog Bite Victims in the USA.
New Jersey follows the Restatement of Torts which makes clear that trespass is not a defense to the common law action for scienter (i.e., the "one bite rule" which applies when the dog previously acted like it wanted to injure a person and the owner of custodian of the dog was aware of the prior act). Thus the New Jersey Supreme Court has ruled that "owners of known vicious dogs should be absolutely liable even to trespassers." De Robertis v. Randazzo, 94 N.J. 144. The only exception is where the trespasser intended to commit a crime.
"Bite" does not necessarily involve breaking the skin of the victim. DeVivo v. Anderson (App. Div. 2009) 410 New Jersey Super. 175.
Shopkeepers, landlords and even dog sitters have liability under the dog bite statute. Nakhla v. Singer-Shoprite, Inc. 205 N.J. Super. 184 (App. Div. 1985) (shopkeeper held liable for non-owned dog); Carr v. Mulroy, 2005 U.S. Dist. LEXIS 16036 (D.N.J. 2005) (dog sitter held liable despite not being the owner of the dog).
A landlord can be held liable for a dog bite by his superintendent's dog. Zukowitz v. Halperin 360 N. J. Super 69 (App. Div. 2003). A domestic partner who appeared to be an owner of the dog will be held liable as an owner. Pippin v. Fink 350 N.J. Super. 270 (App. Div. 2002).
If an independent contractor who is caring for the dog has knowledge of its viciousness, his dog bite claim will be barred by the doctrine of assumption of the risk. Reynolds v. Lancaster County Prison 325 N.J. Super. 298, 315 (App. Div. 1999).
There are generally two types of dog bite claims in which the defendant may appear liable without having to pay the victim at all, or without the responsibility of paying all of the victim's losses. The first involves a victim who was trespassing. The dog bite statute permits a defense based upon trespass, but only if the trespasser had criminal intent. De Robertis, supra.
The second is a claim based upon an accident that was caused by more than one person. For example, the victim's conduct might have been wrongful and therefore negligent, or the dog might have been in the process of being walked by a professional dog walker who was inattentive and therefore negligent. In such cases, the dog owner's liability is not truly "strict," but "almost strict," in that the plaintiff cannot recover if his responsibility for the accident is greater than the responsibility of whoever else may be held responsible, and furthermore, he can recover from each defendant only the amount that corresponds to that person's fault. For example, if the victim was not looking where he was going, and the jury believed that the victim was negligent, the jury could attribute 50% of the fault to the victim, in which event the victim would receive 50% of his losses. Another example would involve the dog walker: if the jury believed that the victim was not negligent, the jury might attribute 50% of the loss to the dog walker and 50% to the dog owner. This results from the operation of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1.
Not all persons can be held comparatively negligent, however. Bush v. New Jersey and New York Transit Company, 30 N.J. 345 (1959). Under the age of seven, a victim is presumed to have not been negligent. At four years or younger, the presumption is almost irrebuttable. Ibid.
New Jersey has partially eliminated the joint and several rule, meaning that a defendant who is less than 60% responsible for any accident can be required to pay all of the economic expenses but only that portion of the noneconomic losses (such as pain and suffering) which equals his actual percentage of fault. In the example of the dog walker given above, if the dog walker had no insurance but the dog owner had full insurance, the victim who had $5000 in medical bills and $50,000 in pain and suffering could collect from the dog owner the sum of only $30,000 (i.e., $5000 because of the economic loss, for which any losing defendant is 100% responsible, plus only $25,000 for the pain and suffering, because it equals 50% of the total loss for pain and suffering). See the Comparative Negligence Act, N.J.S.A. 2A:15-5.1.
New Jersey is a state in which Attorney Kenneth Phillips, the author of Dog Bite Law, has worked with particularly outstanding attorneys. If you or your child were injured by a dog, Mr. Phillips would be happy to refer you to one of these exceptional lawyers. Click here to send E-mail to Mr. Phillips telling him some details of your case.