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Mascola v. Mascola

Decided: May 8, 1979.

ELIZABETH MASCOLA, AN INFANT BY HER GUARDIAN AD LITEM, DOUGLAS REINA, PLAINTIFF-RESPONDENT,
v.
THOMAS AND JOYCE MASCOLA, DEFENDANTS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Halpern, Ard and Antell.

Per Curiam

[168 NJSuper Page 123] This is a "dog bite" case. The sole issue in this appeal is whether a person in temporary custody of a

dog is an "owner" subject to the doctrine of strict liability as set forth in N.J.S.A. 4:19-16.

The essential facts are not in dispute. The infant plaintiff's uncle, the owner of a Doberman pinscher, left it with the infant's parents for safekeeping while he was in Florida. The infant plaintiff, six years old at the time, was bitten by the dog in her parents' backyard while the dog was tied up. This action is by the infant against her mother and father by her guardian ad litem.

After issue was joined defendants moved for summary judgment on the strict liability count (count 1), contending that they were not "owners" of the dog and therefore not subject to N.J.S.A. 4:19-16.

The aforementioned 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, 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.

In denying the motion for summary judgment the judge reasoned that the term "owner" in the statute "shall include every person having a right of property in such dog and every person who has such dog in his keeping."

Although the record is not clear plaintiff, apparently relying on this interpretation of the statute, then moved before another judge for summary judgment in favor of the infant. The motion was granted. Although the briefs and appendices do not make clear the full import of the latter order, apparently it was a partial summary judgment pertaining to liability only on count 1. Thereafter we granted leave to appeal.

We first address ourselves to the reliance placed upon the definition of "owner" in the Rabies Control Act (N.J.S.A. 4:19-15.1 to 15.29) as an aid in interpreting our "dog bite" statute. Under the circumstances here presented, we find no basis for applying the ...


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