On appeal from Superior Court of New Jersey, Law Division, Camden County, L-5493-00.
Before Judges Stern,*fn1 Collester and Parker.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to leave granted, defendant Carol Fink appeals from an order denying her summary judgment, on a complaint against her for injuries to the infant plaintiff as a result of a dog bite.
The relevant facts are that on Saturday, May 23, 1998, Kayla Pippin, along with other children Amanda Baliff, Justin Baliff and a girl named Jessie, walked to 122 Albany Avenue in Barrington to use the pool on the property owned by Carol Fink. The request of the children was not unusual since Kayla and other neighborhood children had previously used the pool. Carol told the children they could go swimming only if one of their mothers supervised. The children walked to the Baliff home and spoke to Janice Baliff, who agreed to come over in a few minutes. The children returned to wait by the pool.
Kayla applied her sun block and sat at the top of a slide leading into the pool. Zeus, a 110 pound Rottweiler dog who lived with Carol and Christine, was "doing laps" in the pool. Kayla and the other children had played with Zeus both in and out of the water on other occasions without any problems. However, when Kayla slipped and slid down the water slide into the pool, Zeus bit her on the cheek and the arm. Carol rushed to aid, placing a towel on Kayla's face. An ambulance was called, and Kayla was taken to the hospital.
Zeus was purchased by co-defendant Christine Agresta from a Pennsylvania pet store in 1994 when he was five months old. At that time Christine lived in Philadelphia. Carol was her co-worker and friend. When Christine told her she liked Rottweilers, Carol mentioned she knew of one for sale. Both women went to the pet store on at least two occasions. According to Christine, Carol convinced her to buy the dog she named Zeus.
A short time later Christine moved with Zeus to Rochester, New York and lived there for about a year and a half. During that time Christine was Zeus' sole caretaker. She registered him and listed herself as owner. By 1996 the relationship between Carol and Christine had grown beyond friendship. Christine and Zeus moved into Carol's home where the two women shared expenses, established a joint bank account and lived in every way as a couple, considering themselves life partners.
They purchased another dog they named Mitzi and registered her with the municipality listing themselves as joint owners. While they did not so register Zeus, they considered him "their dog." They shared his expenses as well as feeding, walking and otherwise caring for him. After the incident with Kayla, they jointly participated in the decision to euthanize him.
Suit was brought by Kayla's mother as guardian ad litem against both Carol and Christine. After discovery was completed, the parties conceded that there was no proof of prior vicious or aggressive behavior by Zeus. Therefore, the issue was the applicability of N.J.S.A. 4:19-16, commonly known as the dog bite act. The strict liability statute reads as follows:
"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." [N.J.S.A. 4:19-16.]
Both plaintiff and Carol Fink moved for summary judgment on the issue as to whether Carol falls within the statutory definition of an "owner" for imposition of liability under the statute. The motion judge denied both applications. We granted Carol's motion for leave to appeal.
Since the statute contains no designated definition of an "owner," it is necessary to apply principles of statutory construction. The "owner" of a dog is defined in a related statute known as a the Rabies Control Act, N.J.S.A. 4:19-15.1 to -15.29, as "...every person having a right in [a] dog and every person who has a dog in his keeping." N.J.S.A. 4:19-15.1. However, we have held that the statutes are not to be read in para materia since the Rabies Control Act is a regulatory statute mandating uniform licensing of dogs for the community health goal of preventing spread of rabies while the dog bite act serves a narrower ...