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Dog Owner Found Not Liable For Injury Caused By Her Dog Knocking Over Neighbor

By on May 12, 2017 in Liability with 0 Comments

The plaintiff Terri Hackett brought her rat terrier, Chancellor, to the property of the defendants William and Joan Musey to play with Molly, their sixty pound Labrador. While the dogs were running around the backyard, Molly suddenly knocked plaintiff down from behind, causing her injury. In Hackett v. Musey, 2017 N.J. Super. Unpub. LEXIS 721 (App. Div. March 24, 2017), the plaintiff argued that the defendants were negligent for allowing their sixty pound dog to run around freely on their property in the presence of guests.

If there was an injury due to a dog bite, the New Jersey statute, N.J.S.A. 4:19-16, imposes absolute liability on a dog owner for damages caused by the bite. Absent a dog bite, a common law claim for absolute liability is available to a plaintiff injured by the actions of a dog if a plaintiff can prove “scienter”- knowledge – of the dog’s “vicious or mischievous propensities.” Scienter is not limited to malicious behavior. It would include any prior knowledge of the dog owner that “the disposition of the animal is such that it is likely to commit a similar injury to that complained of, be it in anger or play.” Without scienter, an injured plaintiff is limited to bringing a negligence action.

In this case, the trial court judge granted summary judgment in favor of the defendants and the plaintiff appealed. The judge found that the plaintiff had presented no proof of scienter or negligent conduct by the defendants. Without scienter, the trial judge could not find any way to conclude that the defendants knew of, and nonetheless allowed, their dog to act in a way that would cause harm to another.

The Appellate Division agreed and affirmed the order, dismissing the case as to the defendants. The Court found that there was no evidence presented that the defendants had any knowledge, actual or constructive, that Molly possessed mischievous, excitable or vicious propensities. The judge concluded that the plaintiff’s injury occurred when Molly inadvertently bumped into plaintiff while chasing plaintiff’s dog. Further, the plaintiff knew the dogs were running around the backyard unleashed and failed to either insist that defendant’s dog be placed on a leash or remove her own dog from the yard.

This case points out the different standards applied by the New Jersey courts when there is an injury caused by a dog. If the injury is not caused by an actual dog bite, there is no statutory strict liability. There could still be a claim for common law “absolute” liability if the owner had prior knowledge of the dog’s “dangerous” propensities. Otherwise, a simple negligence standard applies to the claim.


About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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