Before Judges Petrella, Braithwaite, and Coburn.
The opinion of the court was delivered by: Coburn, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 1999
On appeal from Superior Court of New Jersey, Law Division, Essex County.
The primary defendant in these consolidated dog-bite cases is Lancaster County Prison ("LCP"), a Pennsylvania public entity. During the fourteen months it owned Diesel, a 134-pound Rottweiler trained as an attack dog for prisoner control, the dog bit prison guards on five separate occasions. Despite Diesel's demonstrated propensity for unprovoked attacks on humans, LCP brought Diesel to New Jersey and gave him to defendant Guard Dogs Unlimited, Inc., a New Jersey corporation ("Guard Dogs"). LCP did not disclose Diesel's vicious Disposition.
Within a month, Diesel attacked and bit plaintiff Martin Abbott, an independent contractor working for Guard Dogs in New Jersey. And less than a month later, again in New Jersey, Diesel attacked and bit the principal of Guard Dogs, plaintiff Glen Curt Reynolds. Neither attack was provoked; both were savage, sudden and unexpected, and the plaintiffs suffered grievous personal injuries.
The cases were tried together to a jury. The jury rejected a claim of fraud but found LCP liable to plaintiffs for the tort of negligent misrepresentation involving risk of physical harm. It also found Guard Dogs liable to Abbott under the dog-bite statute, N.J.S.A. 4:19-16, and because Guard Dogs had negligently failed to discover and disclose to Abbott the dog's history. In Abbott's case, the jury assessed comparative fault at 85% for LCP and 15% for Guard Dogs. In Reynolds' case, the jury assessed comparative fault at 75% for LCP and 25% for Mr. Reynolds. The jury assessed Abbott's damages at $1,500,000, Mr. Reynolds' damages at $1,400,000, and Mrs. Reynolds' damages for her per quod claim at $250,000. Following an assortment of post-trial motions, which were all denied by the trial court, and a molding of the verdicts to reflect the comparisons of fault, judgment was entered. *fn1 We affirm.
Defendant LCP appealed based on the following contentions: (1) it was entitled to a directed verdict because plaintiffs failed to prove the tort of negligent misrepresentation and because of the immunity allegedly provided by the Political Subdivision Tort Claims Act of Pennsylvania ("PSTCA"); (2) it was entitled to application of the $500,000 damages-cap of the PSTCA; and (3) it was entitled to a new trial because the verdicts were excessive and because the trial court erred in the admission of certain evidence and in its charge on that evidence.
Defendant Guard Dogs also appealed. It contends that (1) Abbott was not entitled to recover because of his status as an independent contractor; (2) the trial court's charge on the independent contractor defense was erroneous; (3) the court erred in failing to charge assumption of the risk; (4) the liability verdict was against the weight of the evidence; and (5) the damage award was excessive.
Plaintiff Abbott filed a cross-appeal in which he argues (1) under the dog-bite statute he was entitled to a judgment permitting him to seek 100% of his damages from Guard Dogs; and (2) under the Offer of Judgment Rule, R. 4:58, he was entitled to reimbursement from Guard Dogs for his attorney's fees and expenses, plus interest.
As a preliminary matter, we take note of our obligation "to accept as true all evidence supporting the jury's verdict and to draw all reasonable inferences in its favor wherever reasonable minds could differ." Harper-Lawrence, Inc. v. United Merchants & Mfrs., Inc., 261 N.J. Super. 554, 559 (App. Div.) certif. denied, 134 N.J. 478 (1993) (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969). With that principle in mind, these are the facts bearing on liability.
LCP, a public entity of the Commonwealth of Pennsylvania, is a maximum security prison. In 1994 and 1995, its correction officers used trained attack dogs to assist in controlling the prisoners. By early March 1994, the prison had obtained a 134-pound Rottweiler named Diesel. The dog was assigned for training to Corrections Officer Kenneth Geib. By August, although the dog was still in training, Geib began to use him for prisoner control. Over the next nine months, Geib and Diesel participated in numerous situations involving prisoner violence. In each instance, the dog performed properly, but he was involved in five other incidents in which he bit corrections officers.
The first incident occurred a few days after Diesel arrived at the prison. During a training session, when Geib pulled on the dog's leash to stop him from barking at another dog, he turned and bit Geib on the finger. The second incident occurred in June 1994, when Diesel was being trained by another officer, Robert Barley. When Barley pulled on the leash to correct poor behavior, the dog jumped him, biting the clothing covering his chest and then his arm.
The remaining incidents all involved Geib. On October 6, 1994, Diesel bit Geib on both arms during a training session. On April 20, 1995, Geib noticed that Diesel and another dog were "barking and going nuts on each other" and he "called him to come back in his run . . . ." Diesel jumped on him and "[t]hen he came back up and he bit me in my left arm . . . ." The fifth incident occurred on April 28, 1995. Geib found Diesel facing another dog that was on the other side of a screen. When Geib reached down to pull Diesel away, the dog "spun around and he did immediately bite me in my arm."
After each bite, Geib submitted to his supervisor an "Unusual Activity Report." After the last attack, Geib included within his report a recommendation to get rid of Diesel. He wrote: "Based on my experience as handler, I feel there is an irreversible medical problem with K-9 Diesel and recommend K-9 Diesel be removed from the program." On the bottom of that form, Geib's supervising officer, Sergeant Alan Himmelsbach, wrote that he agreed with Geib and that "K-9 Diesel is a Liability! Suggest K-9 Diesel Be Put Down."
Guard Dogs, a New Jersey corporation, owned about fifty guard dogs which it rented to businesses to secure their premises at night. During the day, the dogs were either kept in kennels at various locations in New Jersey, or were maintained by Guard Dogs in kennels located on customers' premises. At night, the dogs were either brought to the customers' premises or, if kept there, were released for patrol. In the morning, the handlers returned the dogs to their kennels, fed them, and cleaned the premises. Guard Dogs also rented the second floor of a warehouse in Newark where it kept supplies and had a single kennel.
Reynolds, an experienced dog trainer, decided to employ Abbott in early 1994 as an independent contractor to assemble kennels, cover the tops of outdoor kennels with roofing, and to perform other odd jobs. Later in 1994, Reynolds trained Abbott to handle dogs. Soon Abbott became Reynolds' "right-hand man." Confident in Abbott's abilities to run the company's daily operations, Reynolds moved to Maine but kept a residence in New Jersey. Although Reynolds maintained daily contact with Abbott and continued to supervise the business, Abbott took on the responsibility of supervising the other dog handlers and maintaining the kennels and dog houses.
In late April or within the first few days of May 1995, Sergeant Himmelsbach decided to offer Diesel to Guard Dogs. When he spoke to Reynolds by telephone, he said that the prison had a dog that needed to be placed and immediately referred Reynolds to Geib. According to Reynolds' testimony, Geib told him that Diesel had become increasingly aggressive toward other dogs and, as a result, was unsuitable for the prison. Geib added that the dog had been "very well trained. He had been through obedience and protection training as well as agility training" and had been "certified." Reynolds asked for "a rundown on what the problems were and just any details that he thought would be important for us to know." He also asked if the dog had ever bitten anyone. Geib replied that on one occasion, when he was breaking up a dog fight, Diesel "nipped" him. Geib's testimony confirmed Reynolds' description of this conversation.
Shortly thereafter, at Reynolds' direction, Abbott arranged to meet Geib on May 6, 1995, at Exit 6 of the New Jersey Turnpike, to take possession of Diesel. When they met, Geib told Abbott that the dog was tranquilized because he did not "travel well." He said the dog was friendly toward people. He emphasized the point by adding that sometimes the dog was shown to prison visitors, and that on one occasion the dog had approached a woman visitor and had leaned against her leg. Abbott admitted that Geib also told him of an incident in which he was nipped by the dog and showed him a small, stitched wound on his arm. According to Abbott, Geib explained that he received the bite while breaking up a dog fight.
The dog was placed in a crate in Abbott's truck, and Geib concluded the transaction by handing Abbott a sealed manilla envelope containing Diesel's certificates and his veterinary record.
Although Reynolds was unsure about when he looked at the contents of the manilla envelope, it was definitely after the attack on Abbott. The veterinarian's record revealed one of the earlier attacks by Diesel. Reynolds testified that had he known about the five attacks, he would not have accepted the dog. He also said that had he known that the dog had two attacks on people within eight days before the day of the transfer, he absolutely would not have accepted the dog.
Abbott brought Diesel to the Newark warehouse and placed him in the kennel. In accordance with Reynolds' instructions, Abbott began to bond with Diesel in preparation for becoming his handler. During the first two weeks, that process involved feeding, watering, talking to, and just being around the dog. Later, he exercised the dog by walking him around the warehouse floor, and on at least one occasion he took the dog with him for a ride in his truck.
On the morning of May 31, 1995, Abbott cleaned Diesel's kennel, fed and watered him, latched the kennel gate, and left to perform other duties. Around 3:00 p.m., Abbott returned to the warehouse to pick up some tools. As he started gathering the tools, he sensed that something was behind him. Turning, he saw Diesel standing outside his kennel.
The dog rushed him, bit down on his arm, and would not let go. Abbott described the attack:
I felt the teeth sink in my arm and I tried to . . . pull my arm out of the dog's mouth, but he just kept biting down harder.
I tried to tighten the collar up enough to choke him. And that didn't work. . . . [I thought] I was going to die. . . . I got him to the edge of the building where I could stand him in the corner. . . . I was already covered with blood at that time. And I had a pair of high boots on and I could feel the blood squishing between my toes at that time.
So I got him stood up and I leaned against him. And at that time I tried to choke him again 'cause I had a better hold and it didn't bother him.
So I get to the point where I just looked down and I could just see the jaws going up and down on my arm . . . . And I could just feel him crunching on my bone . . . .
I drove my fingers in his eye sockets . . . [and] squeezed my fingers together in his head. . . . [H]is jaw had actually let go enough off my bone. . . . And then I ripped my arm out of his mouth and I still had a hold in his eye sockets. At that point I dragged him to the kennel and dragged him back inside.
Abbott then managed to get down to the loading dock, where he met a man who called for an ambulance.
Reynolds learned of the attack and immediately returned to New Jersey. Although he testified that he had only taken Diesel on a trial basis, reserving the unexpressed option of returning the dog to LCP, he never called the prison to arrange for the dog's return.
He reinforced the kennel by putting a top on it, by adding or replacing the latch, and by placing a chain and padlock on the gate. During the next three weeks, he kept the dog in the kennel, providing food and water, and cleaning away the dog's droppings.
On June 24, 1995, Reynolds, having decided to bring Diesel to the ASPCA, entered the warehouse and ...