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Dougan v. Nunes

August 19, 2009


The opinion of the court was delivered by: Irenas, Senior District Judge


Presently before the Court are Defendants' Motion for Summary Judgment (Docket No. 12) and Plaintiffs' Cross-Motion for Summary Judgment on Liability (Docket No. 14). The Court has reviewed submissions of the parties, and for the reasons set forth below, Plaintiffs' Motion for Summary Judgment on Liability will be granted, and Defendants' Motion for Summary Judgment will be denied.*fn1


This case arises from a dog owned by Defendants Renae and Joseph Nunes (collectively, "Defendants") biting Plaintiff Veronda Dougan. Plaintiffs Veronda and Timothy Dougan (collectively, "Plaintiffs") own a female Rottweiler named Dixie whom they sought to breed. (Def. R. 56.1 Stat. at ¶ 1.) They contacted a professional Rottweiler breeder, Antoinette Coviello, to locate a male candidate for breeding. (Id. at ¶ 2.) Coviello referred Plaintiffs to Defendants, who owned a male dog named Einstein that they had already used for breeding three times. (Id. at ¶ 3.) Coviello, who did not charge a service fee for creating the connection, told Plaintiffs that Defendants "seemed to be nice people," and she believed it would not be a problem to breed the two dogs. (V. Dougan Depo. at 14:19-21, 21:7-9.)

Plaintiffs and Defendants discussed the arrangements for breeding their dogs through emails and phone conversations. (Id. at 18:12-15.) Plaintiffs informed Defendants that they were unfamiliar with the breeding procedure, and Defendants assured Plaintiffs that they had experience and would guide Plaintiffs through the process. (Id. at 22:8-16.) The parties eventually agreed to have Defendants bring Einstein to Plaintiffs' house to breed with Dixie later in the week. (Id.) The parties never reached a formal agreement concerning payment to Defendants, but they verbally agreed that if Dixie took, Defendants would receive their pick of the litter. (T. Dougan Depo. 26:9-15.)

On February 4, 2006,*fn2 Defendants brought Einstein to Plaintiffs' house, and the dogs mated once during the day. (Def. R. 56.1 Stat. ¶ 6.) Plaintiffs planned to have guests at their house later in the afternoon, so Defendants agreed to leave. However, Defendants told Plaintiffs that the dogs usually needed to mate at least twice for the insemination process to take effect, and they insisted that Einstein remain at Plaintiffs' house until the next morning. (V. Dougan Depo. at 29:24-31:24.) Plaintiffs eventually permitted Defendants to leave Einstein overnight because Defendants convinced them that Einstein had no visible aggression issues, and Defendants insisted that they had followed the same procedure on three previous occasions. (Id. at 31:25-32:15.)

The dogs mated a second time after Plaintiffs' guests had left. (T. Dougan Depo. 32:2-4.) That evening, at around 6:30 p.m., Plaintiff Timothy Dougan sat at the foot of his bed while Einstein rested his head on Timothy's lap. Plaintiff Veronda Dougan went to kiss her husband on the bed, and Einstein bit Veronda's face. (Id. at 37:10-20.) Timothy drove Veronda to the hospital, and doctors administered two shots of antibiotics to Veronda before giving her 34 stitches. (V. Dougan Depo. at 50:1-9.)

Plaintiffs submitted a two-count Complaint on January 14, 2008. Count I asserts that Defendants are liable to Plaintiff Veronda Dougan under New Jersey's strict liability statute, N.J. Stat. Ann. § 4:19-16, for damages due to physical injuries, emotional harms, and disruption of her daily activities. (Compl. at ¶ 6.) Count II asserts that Defendants are also liable to Plaintiff Timothy Dougan under N.J. Stat. Ann. § 4:19-16 for damages because he has been deprived of his wife's society, services, and consortium. (Id. at ¶ 9.)*fn3


"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

"'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).


Plaintiffs argue that New Jersey's strict liability statute applies to this case. See N.J. Stat. Ann. § 4:19-16. The statute states:

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 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 ...

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