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.

Overview

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 for a first bite 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. "Bite" does not necessarily involve breaking the skin of the victim. DeVivo v. Anderson (App. Div. 2009) 410 New Jersey Super. 175. 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).

The dog bite statute permits a defense based upon trespass, but only if the trespasser had criminal intent. De Robertis v. Randazzo, 94 N.J. 144 (1983).

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, supra. For more about those causes of action, see Legal Rights of Dog Bite Victims in the USA. Example include the following:

  • Shopkeepers and other businesses can be held liable for negligence if a dog is vicious or if it presents a foreseeable danger to customers. Nakhla v. Singer-Shoprite, Inc. 205 N.J. Super. 184 (App. Div. 1985) (shopkeeper held liable for non-owned dog that was tethered near the front door of the business).
  • 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).

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).

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.

New Jersey's Comparative Negligence Act, N.J.S.A. 2A:15-5.1 complicates some dog bite cases and creates a defense in others. Examples:

  • 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 from the dog owner.
  • If the jury believed that a third party was at fault (such as a dog walker who was inattentive), the jury might attribute 50% of the loss to the dog walker and 50% to the dog owner. If the dog walker had neither insurance nor assets, the victim would receive 50% of this losses from the dog owner. 

Not all persons can be held comparatively negligent. Under the age of seven, a victim is presumed to have not been negligent. At four years or younger, the presumption is almost irrebuttable. Bush v. New Jersey and New York Transit Company, 30 N.J. 345 (1959).

The Comparative Negligence Act 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). 

 

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