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Trisuzzi v. Tabatchnik

October 31, 1995

JOHN TRISUZZI AND ELAINE TRISUZZI, PLAINTIFFS-APPELLANTS,
v.
RITA TABATCHNIK AND BENJAMIN TABATCHNIK, DEFENDANTS-RESPONDENTS.



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

Approved for Publication October 31, 1995.

Before Judges Dreier, A.m. Stein and Kestin. The opinion of the court was delivered by A.m. Stein, J.A.D.

The opinion of the court was delivered by: Stein

The opinion of the court was delivered by

A.M. STEIN, J.A.D.

This is a dog bite case. Plaintiff John Trisuzzi, who was bitten by the dog, appeals a verdict of no cause for action entered in favor of defendants, the dog owners, following the negative response by the jury to the first two special interrogatories. Plaintiff Elaine Trisuzzi, John's wife, appeals the trial Judge's dismissal of her claim of negligent infliction of emotional distress.

We reverse as to plaintiff John Trisuzzi for retrial on liability under the dog bite statute, N.J.S.A. 4:19-16, because the trial Judge did not inform the jury of the circumstances under which plaintiff could be considered lawfully upon defendants' property. We find no error in the Judge's rulings and instructions as to common law negligence and affirm the verdict of no cause for action on that theory of the case. R. 2:11-3(e)(1)(E). We also affirm the dismissal of Elaine Trisuzzi's claim for negligent infliction of emotional distress resulting from the trauma of watching her husband being attacked by the dog.

On June 15, 1988, at approximately 7:30 p.m., John, Elaine and their nineteen-year-old daughter were taking their customary evening walk, which took them past defendants' house on Everdale Road in Randolph Township. Because the street had no sidewalks, they were walking in a sixteen to twenty-foot roadway.

Defendants owned a five-year-old, eighty-five pound German Shepherd. John testified that he saw defendants' dog come running towards his wife and daughter in what he described as an "attack mode." The dog had its ears back and its teeth bared and was coming at full speed. John immediately ran to place himself between the dog and his daughter. He claimed that he was practically touching his daughter when the dog first made contact with him.

According to John, the dog came into the street and leaped upon him. John, trained in martial arts, lifted his leg to kick while the animal was mid-air. His leg hit the side of the dog and the dog went down to the ground. Immediately, the dog sprang on John, who again pushed the dog down. When the dog got up, it went for John's throat. John claimed that the animal was "like a mad dog" and had a menacing look in its eyes.

John continued to ward off the dog with punches and kicks until he lost his balance. When the dog then went for John's neck, he put his hands in the dog's mouth to keep the animal from his throat. John testified that the dog jumped on him about a dozen times, landing on and biting at his stomach, legs and groin. The dog also bit both of John's hands which were now bleeding "profusely." John testified that he believed that he was in a life-or-death situation and that he was protecting his family from the dog.

The dog then circled John. When the animal moved to the side, John tried to run but the dog put his head down and snarled at him. Just as John grabbed a small stick, the dog again jumped on him. He hit the dog with the stick until it ran back.

Defendant Rita Tabatchnik then appeared from the side of the house and tried to grab the dog. She was eventually able to restrain the animal. The entire incident lasted about two to three minutes, and according to plaintiff, it took place entirely in the public roadway. Plaintiff claimed that he never went onto defendants' property.

As John and his family walked back home, he took off his T-shirt and wrapped it around his bleeding hands. His wife and daughter were "hysterical" and his wife was "almost . . . in shock." When they arrived home, John washed and disinfected his hands. He testified that he tried to downplay the incident so as not to alarm his family. We do not discuss the remainder of injuries claimed by plaintiff except as they are relevant to the Disposition of Elaine's appeal.

John's wife and daughter corroborated his version of the accident. His daughter testified that John never went onto defendants' property during the attack and that the closest he got to the property line was five feet. His wife also ...


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