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Derobertis v. Randazzo

Decided: July 25, 1983.

PETER DEROBERTIS, AN INFANT BY HIS GUARDIAN AD LITEM CAROLYN DEROBERTIS AND VITO DEROBERTIS, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
JOSEPH RANDAZZO, JR., INDIVIDUALLY AND T/A RANDY'S AUTO BODY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT, V. BRUCE MCCARTHY, THIRD-PARTY DEFENDANT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Pollock and Garibaldi. For affirmance -- Justices Handler and O'Hern. The opinion of the Court was delivered by Pollock, J. O'Hern, J., dissenting. Justice Handler joins in this opinion.

Pollock

[94 NJ Page 146] The principal issue in this case is the liability of a dog owner to an infant plaintiff bitten by the owner's dog. At trial the jury returned a verdict for the plaintiffs, and the Appellate Division, in an unreported opinion, affirmed. A factual issue existed at the trial, however, as to whether the infant plaintiff was lawfully on the property of the owner, but the trial court did not submit that question to the jury. The omission is important because the "dog-bite" statute, N.J.S.A. 4:19-16, imposes absolute liability on an owner whose dog bites someone who is "lawfully on or in a private place, including the property of the owner of the dog." If the plaintiff was a trespasser, he

was not lawfully on the property, and liability should not be determined under the statute but according to common-law principles.

We reverse the judgment in favor of the plaintiffs and remand the case for a new trial.

I

Five-year-old Peter DeRobertis was on the property of defendant, Joseph Randazzo, Jr., on June 21, 1977, when Randazzo's dog bit Peter on the head, causing serious injury. Randazzo owned an auto body shop, Randy's Auto Body, and contracted some of his towing work to Peter's father, Vito DeRobertis. Because Peter's mother, Carolyn DeRobertis, worked, Mr. DeRobertis often took Peter to Randazzo's shop. Apparently Peter roamed throughout the shop and often performed small tasks. Randazzo kept a pet German Shepherd, Pollo, chained to a doghouse adjacent to the rear of the body shop.

On the day of the accident, Mr. DeRobertis had allowed Peter to accompany Bruce McCarthy, one of Randazzo's employees, on an errand. Before their return, Peter's father was called away on a towing job unrelated to Randazzo's business. McCarthy later left Peter at the shop, where he eventually found Dan Murphy, another employee, painting a car. From the area in which Murphy was working, it was possible to see and hear Pollo. Randazzo, who was not on the premises on the day of the accident, did not recall having warned Peter about the dog or that Pollo had ever bitten anyone. Although Peter's father had warned him to stay away from the dog, Peter had been in the area near Pollo with his father. On hearing Pollo bark, Peter approached and patted him on the nose. When Peter bent over to tie his shoelace, Pollo bit him, causing lacerations. Peter was taken to the hospital, where he remained for five days following the performance of plastic surgery. As a result of the accident, Peter suffered a scar on his scalp and experienced nightmares for about a year.

An air of casualness permeated the proceedings from the filing of the complaint through the jury verdict. In the complaint, Carolyn DeRobertis sued Randazzo on Peter's behalf, and Vito DeRobertis sued for reimbursement of medical expenses. The complaint, however, does not mention N.J.S.A. 4:19-16, which imposes absolute liability on an owner whose dog bites a person who is lawfully on the owner's premises. Nor does the complaint allege that Randazzo is absolutely liable under common-law principles as the owner of a dog with known dangerous propensities. Instead, the complaint is framed as a simple negligence action. The answer, which denies that Peter was an invitee, squarely places in issue his status on the property. In addition, the answer includes a counterclaim against Vito and a third party complaint against McCarthy for negligent supervision of Peter. No pretrial conference was conducted, and plaintiffs had not answered interrogatories by the commencement of the trial.

At the conclusion of a three-day trial, the court dismissed the third party action against McCarthy, and that matter is not before us. Somewhere in the course of the trial, the statute emerged as a possible basis of liability. The lack of clarity in the underlying theory of the action surfaced again, however, in the charge to the jury.

At one point in the charge, the court read aloud the entire statute. Then, despite the statutory requirement that a person must be on the premises by invitation, express or implied, the court instructed the jury that the status of the infant on the property was "of no moment insofar as the infant's possible recovery is concerned." In the next paragraph, the charge, without so stating, appears to be based on common-law principles of strict liability. That portion of the charge instructed the jury:

This is a situation where a person is injured by the actions of the dog with vicious propensities, known to its keeper, while the injured person is on the premises of the keeper of the dog. It is not necessary in order to recover for the

injuries to show that he was on the premises either by invitation, by consent or acquiescence.

Liability would be imposed upon the keeper of the dog by reason of his knowledge of the dog's vicious propensities. The mere fact that the injured person was not invited or even if the infant be a trespasser on the premises at the time of the injury does not defeat the cause of action.

The trial court concluded this part of the charge by stating, "[w]hat I have just indicated to you is the concept of the statutory obligation. . . ."

Defense counsel objected to that part of the charge stating that even if the infant were a trespasser, he could recover under the statute. Without correcting the charge, however, the court merely noted the objection.

The court submitted the matter to the jury on special interrogatories, only the first two of which pertained to liability under the statute. Those questions inquired whether Randazzo kept a dog and whether the dog bit Peter. The court further instructed the jury not to answer the remaining questions on liability if it found that Pollo had bitten Peter. Among other things, the remaining questions asked whether the dog was dangerous and the owner knew of its "harmful propensities." Continuing the error in the charge, the court did not ask the jury to determine whether Peter was lawfully on Randazzo's property.

After finding that Pollo had bitten Peter, the jury awarded Peter $40,000, apportioning liability for damages between Randazzo and Vito DeRobertis at 80% and 20%, respectively. Although Peter's medical bills were only $2,516.30, the jury awarded nearly twice that amount, $5,000, to Vito. The trial court molded the verdict in favor of Vito to conform to the actual damages.

Randazzo moved for remittitur of the verdict, and the trial judge granted the motion, reducing the award to $25,000. The court found that the verdict was so disproportionate to the injury that it would be manifestly unjust to sustain the award. In particular, the court noted that Peter's hair had regrown and

that no scar was visible. The court noted further that the nightmares had disappeared and nothing indicated that they would return. The court concluded, "[n]o permanent disability or injury resulted from the incident which could justify a verdict of this size."

On appeal, the Appellate Division approved the charge, holding that the infant trespasser rule is incorporated into the statute and, therefore, that the child's status would not bar recovery. The Appellate Division further reversed the remittitur, reinstating the original jury verdict of $40,000.

Following the entry of the judgment of the Appellate Division, plaintiff sought and obtained an order directing the sale of Randazzo's home to satisfy the judgment. On filing his petition for certification, Randazzo pledged his house as security for the judgment, and we stayed execution pending resolution of this appeal.

Because we believe that the lower courts misunderstood the relationship between the dog-bite statute and the infant trespasser rule, we reverse the judgment and remand the case for a new trial.

II

The early common law distinguished between wild and domesticated animals for purposes of imposing liability on their owners. Owners of fierce or wild animals were absolutely liable for harm caused to others. However, owners of domesticated animals, such as dogs, were liable only if they had scienter; that is, the owners were liable only if they knew of the animal's dangerous or mischievous propensities. Emmons v. Stevane, 77 N.J.L. 570, 572 (E. & A.1909) (reversal of directed verdict for owner of dog who knew dog was vicious). People can be injured by playful, as well as mean, dogs. Jannuzzelli v. Wilkens, 158 N.J. Super. 36, 41-42 (App.Div.1978); Evans v. McDermott, 49 N.J.L. 163, 164 (Sup.Ct.1886); see W. Prosser, The Law of Torts § 76 at 501 (4th ed. 1971). Generally, upon a showing of

scienter, an owner was held liable even if a plaintiff could not show the owner to be negligent in his control of the dog. See Tanga v. Tanga, 94 N.J. Super. 5, 8 (App.Div.1967) (reversal of jury verdict for dog owner where trial court refused to charge that the statute created strict liability); Emmons, supra. But see DeGray v. Murray, 69 N.J.L. 458 (Sup.Ct.1903) (defendant who exercised due care in controlling dog not liable for dog having bitten plaintiff, even if defendant knew dog to be vicious). In other instances, owners were liable if they failed to use due care in controlling their animals. See Angus v. Radin, 5 N.J.L. 957, 958-59 (Sup.Ct.1820); W. Prosser, The Law of Torts § 76 at 502 (4th ed. 1971).

With the enactment of N.J.S.A. 4:19-16 in 1933, however, even owners without scienter became absolutely liable in certain situations. The statute reads:

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.

For liability to attach under the statute, three elements must be proven. First, the defendant must be the owner of the dog. Second, the dog must have bitten the injured party. Finally, the bite must occur "while such person is on or in a public place, or lawfully on or ...


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