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In re Hayes

Decided: November 1, 1972.

IN THE MATTER OF ZEPHYR HAYES, PLAINTIFF,
v.
BENEDETTO MONGIOVI, TRADING AS MOM BUTCHER SHOP AND/OR VICTORY MORTGAGE CORP., DEFENDANT



Yanoff, J.c.c. t/a P.J.D.C.

Yanoff

[121 NJSuper Page 272] The simple issue to be decided in this case is whether N.J.S.A. 4:19-16 provides relief to a person who is injured, but not bitten, by a dog.

The statute reads in part:

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 in the owner's knowledge of such viciousness.

The facts here are clear. Plaintiff was standing on a sidewalk. The dog was on a leash on the opposite side of the street, broke loose, came across the roadway and knocked plaintiff down, injuring her. The evidence convinces me that plaintiff has not sustained the burden of proving that the dog had exhibited vicious propensities prior to this incident.

Three recent decisions interpret the statute. In Foy v. Dayko , 82 N.J. Super. 8 (App. Div. 1964), the court held contributory negligence a defense to an action under the statute. Speaking for the court, Judge Conford said (at 12), "Statutes in derogation of the common law are ordinarily strictly construed." He continued:

We deem it implicit in the statute, having regard to the limited motivation for its adoption, that the Legislature intended the salutary and just result of precluding recovery by one whose own negligence proximately resulted in his injury. [at 14]

It seems to me reasonable to infer that by this language Judge Conford meant that the statute, since it extends the liability of dog owners, should not be construed to extend it so far as to create liability to one contributorily negligent in the absence of express language to that effect.

In Gross v. Dunham , 91 N.J. Super. 519 (App. Div. 1966), the question was whether a dog owner was responsible under the statute to a person who had been bitten, for all injuries sustained during the occurrence, including injuries

resulting from being knocked down. An Appellate Division part, which did not include Judge Conford, held that he was. The court said, per curiam:

We do not believe that N.J.S.A. 4:19-16 should receive the limited construction placed on it by the trial court and urged on appeal by defendant. The statute has been described as "distressingly ambiguous on its face." Foy v. Dayko , 82 N.J. Super. 8, 13 (App. Div. 1964). We ...


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