HILLARY AIGES v. JANE LEVINE FUCCILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1273-11T1

HILLARY AIGES,

Plaintiff-Appellant,

v.

JANE LEVINE FUCCILLO and

WILLIAM FUCCILLO,

Defendants-Respondents.

______________________________

December 21, 2012

Argued May 7, 2012 - Decided

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2768-10.

Evan D. Baker argued the cause for appellant (Law Offices Rosemarie Arnold, attorneys; Mr. Baker, of counsel and on the brief).

Joseph J. Galiastro argued the cause for respondents (Jose B. Moreira, P.C., attorneys; Jose B. Moreira, on the brief).

PER CURIAM

In this dog-bite case brought by a dog-sitter against the dog's owners, the dog-sitter appeals the trial court's ruling that her lawsuit against the owners cannot go forward in the absence of proof that they knew or should have known that their dog was vicious. Although plaintiff invoked the absolute liability provisions of New Jersey's dog-bite statute, N.J.S.A. 4:19-16, the trial court applied the "independent contractor" exception to the statute, recognized in Reynolds v. Lancaster County Prison, 325 N.J. Super. 298, 324 (App. Div.1999), certif. denied, 163 N.J. 394 (2000). Because the circumstances here are factually distinguishable from the commercial setting in Reynolds, we conclude that the statutory rule of absolute liability applies to plaintiff's injuries. We therefore reverse the trial court's ruling and remand for trial.

We review the limited factual record in a light most favorable to plaintiff, against whom defendants moved for summary judgment.1 See Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010).

Plaintiff, Hillary Aiges, is a self-employed, full-time photography agent. Defendants, Jane Levine Fuccillo and William Fuccillo, are spouses.

As a side activity to earn extra income, plaintiff occasionally performs dog-sitting at her home. She is affiliated with a pet-sitting agency that advertises and sometimes refers customers to her. However, plaintiff did not become acquainted with defendants through that agency. Instead, plaintiff and defendants reside in the same neighborhood and they have known one another for many years. They have a cordial relationship. Defendants' son, in fact, had walked plaintiff's own dogs after school.

According to the deposition testimony, in or about December 2010, Mrs. Fuccillo called and asked plaintiff about watching their dog, a Golden Retriever, while defendants went on vacation for about a week.2 Plaintiff was familiar with the dog, having previously seen and pet the Golden Retriever when Mrs. Fuccillo walked it around the neighborhood. She did not perceive that the dog was vicious or dangerous.

Plaintiff attempted to contact the agency about whether it had any objection to her making a direct arrangement with defendants to watch their dog, but the agency apparently did not get back to her. Prior to leaving on vacation, Mrs. Fuccillo brought the dog over to plaintiff's residence to make sure that it would be comfortable in plaintiff's house. The parties then orally agreed that plaintiff would take care of the dog at her own house while defendants were away. In exchange, plaintiff was to be paid "about $300."

Pursuant to these informal arrangements, defendants paid plaintiff an advance sum of $100 and Mrs. Fuccillo brought the dog over to plaintiff's house. Defendants then went on vacation.

Several days later, on December 9, 2010, the dog bit plaintiff as she was attempting to pick up a napkin off of the floor in her living room. Plaintiff was injured and obtained medical treatment.

This lawsuit ensued. After discovery, the parties each moved for summary judgment. The trial court denied both motions. In the course of doing so, however, the court made a conclusive legal determination that plaintiff had acted in this case as an independent contractor, and, as such, plaintiff could not take advantage of the statute's absolute liability provisions unless she could prove that defendants knew or should have known the dog was vicious. Because plaintiff lacked such proof, she voluntarily dismissed her complaint, subject to her right to appeal the court's disposition restricting her ability to rely upon the statute for relief.

We review de novo the trial court's legal classification of plaintiff as an independent contractor excluded from the protections of the dog-bite statute. No special deference needs to be accorded to the trial court's assessment of the documentary record. The court's decision does not hinge upon any findings about the credibility of testimony rendered in court, but instead represents the application of legal principles. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (holding that no "special deference" applies to a trial court's legal determinations).

As we have noted, the Legislature has adopted a general rule of absolute liability under the dog-bite statute, N.J.S.A. 4:19-16. In pertinent part, the statute provides:

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, . . . 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.]

To establish a right of recovery under this statute, a plaintiff must prove that (1) the defendant is the dog's owner, (2) the dog bit the plaintiff, and (3) the plaintiff was either bitten in a public place or was lawfully present in a private place. De Robertis v. Randazzo, 94 N.J. 144, 151 (1983). This rule of liability is subject to a limitation, one which has not been raised here, allowing dog owners to assert a defense of contributory negligence when "plaintiff kn[ows] the dog ha[s] a propensity to bite either because of the dog's known viciousness or because of the plaintiff's deliberate acts intended to incite the animal." Pingaro v. Rossi, 322 N.J. Super. 494, 504-05 (App. Div. 1999) (internal quotation marks omitted).

The statute was further construed in a limiting fashion by this court in Reynolds, supra, 325 N.J. Super. at 323-25, in which we held that an "assumption of the risk" defense may be available to negate absolute liability under the statute, in a situation where the plaintiff is or is employed by an independent contractor caring for the dog. The facts in Reynolds involved a Rottweiler, trained as an attack dog for prisoner control, which had been donated by a Pennsylvania prison to a commercial enterprise, defendant Guard Dogs Unlimited, Inc. ("Guard Dogs"). Id. at 306-09. Guard Dogs owned about fifty dogs, which were rented to businesses for private security at night. Id. at 309. The dogs were kept in kennels in a warehouse or maintained by Guard Dogs in kennels on the customer's premises. Ibid. One day, while in the kennel, the dog attacked and bit an independent contractor of Guard Dogs, Abbott, and then a few weeks later attacked and bit Guard Dogs' principal, Reynolds. Id. at 306. Both men were seriously injured. Abbott filed suit against both Guard Dogs and the prison. Reynolds sued the prison but not his employer, Guard Dogs. In a consolidated jury trial, both Reynolds and Abbott obtained sizeable money judgments based upon the jury's findings of the respective defendants' negligence. Ibid.

After analyzing the facts and the applicable legal principles, including case law from California, the panel in Reynolds concluded that the absolute liability provisions of the New Jersey statute did not apply to independent contractors such as Abbott. Id. at 323-24. In the course of its analysis, Reynolds pointed out by analogy how a veterinarian, for example, should not be entitled to take advantage of the absolute liability provisions of N.J.S.A. 4:19-16, because a veterinarian is in the profession of caring for dogs. Ibid. (citing Nelson v. Hall, 211 Cal. Rptr. 3d 668, 673 (1985)). As such, a veterinarian has special skills and experience to recognize whether dogs are vicious or prone to bite and thus is "in the best position to take necessary precautions." Ibid. (internal quotation marks omitted). However, even in the case of an independent contractor caring for a dog, Reynolds acknowledged that when "a dog owner purposefully or negligently conceals a particular known hazard from a veterinarian [or independent contractor], he or she would not be relieved of liability, for this would expose the injured person to an unknown risk."3 Ibid. (internal quotation marks omitted). We further acknowledged that a dog owner can be liable to an independent contractor under principles of ordinary negligence. Id. at 325-26. Consequently, we affirmed plaintiff's recovery of damages from Guard Dogs based upon such common-law negligence because the record supported a finding that Guard Dogs had not conducted a reasonable investigation into the dog's history. Ibid.

The circumstances here are markedly dissimilar from those in Reynolds. Plaintiff was not in a full-time business like Guard Dogs that involved caring for dogs. She performed dog-sitting only on a part-time basis out of her own home. Although plaintiff was affiliated with a pet-sitting agency, she did not develop her relationship with defendants through that firm. Instead, the parties were neighbors, who had known one another and their respective dogs. The arrangement had an aspect of reciprocity, as defendants' son had apparently walked plaintiff's own dogs in the past after school. The parties' arrangements were unwritten and informal.

Although we recognize that plaintiff was paid a fee for caring for defendants' dog, her receipt of that fee alone is not dispositive of the independent contractor analysis. Indeed, teenagers and neighbors commonly earn modest sums as dog-walkers and dog-sitters, and we discern no intent of the Legislature to exclude such persons from the protection of the statute.

The trial court's determination of the dog-bite statute's inapplicability to plaintiff is therefore reversed, and the matter is remanded for trial.

1 We recognize that plaintiff also moved for summary judgment, but the judge's motion decision ultimately proved to be adverse to plaintiff, in determining that her lawsuit could not proceed without proof of defendants' actual or constructive knowledge of the dog's dangerousness. Defendants have not cross-appealed any aspect of the court's determination.

2 According to Mrs. Fuccillo's deposition testimony, she had first called the agency that plaintiff is affiliated with and, coincidentally, the agency identified plaintiff as a local dog-sitter.

3 We acknowledge that such concealment was not alleged in the plaintiff's motion for summary judgment.