NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1829-16T4
THE ESTATE OF JANE POCKNETT,
Argued May 9, 2018 – Decided June 28, 2018
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
J. Silvio Mascolo argued the cause for
appellant (Rebenack, Aronow & Mascolo, LLP,
attorneys; J. Silvio Mascolo, of counsel and
on the briefs).
David J. Dering argued the cause for
respondent (Leary, Bride, Tinker & Moran, PC,
attorneys; David J. Dering, of counsel and on
Plaintiff Angela Carpentiero appeals from an order granting
partial summary judgment on her strict liability claim and from
an order dismissing her common law negligence claim, which resulted
in the dismissal of her complaint. Upon review of the record and
in consideration of applicable law, we affirm.
On March 16, 2012, plaintiff suffered a dog bite to her face
by a dog owned by Jane Pocknett.1 At the time, plaintiff was
working as a part-time groomer at Katie's Pet Depot and was bathing
the dog. Thereafter, plaintiff filed a two-count complaint. Count
one of the complaint was based on common law negligence. Count
two was based on strict liability pursuant to
During her deposition, plaintiff testified that she was an
employee of Katie's Pet Depot rather than an independent contractor.
Plaintiff also testified that had she known the dog was old and
had arthritis, she would have muzzled the dog prior to grooming.
At the conclusion of discovery, defendant filed a motion for
summary judgment. Following oral argument, the judge granted the
motion on the strict liability count and denied the motion on the
common law negligence count. In granting the motion, the judge
found plaintiff to be an independent contractor. As such, the
judge held that status qualified as an exception to the imposition
of strict liability pursuant to our holding in Reynolds v.
Lancaster County Prison,
325 N.J. Super. 298 (App. Div. 1999).
Jane Pocknett died before plaintiff filed her complaint and her
estate was named as a defendant.
To the contrary, the judge found common law negligence to be
an issue which should be determined by the jury:
In this matter, plaintiff has asserted
that the dogs [sic] physical condition was
such that, had she been made aware of it, she
would have muzzled the dog to prevent its
response to the grooming procedures that
triggered the dog to bite her. The court on
summary judgment is not in a position, on this
record to determine whether the position
asserted by plaintiff is credible or not.
Credibility determinations are the sole
province of the jury.
On September 30, 2016, the judge entered an order
memorializing the decision. Neither party filed a motion seeking
reconsideration of the order.
On November 28, 2016, during a pre-trial conference before
the judge assigned to the trial of the case, the judge sua sponte
dismissed the common law negligence count. In reaching that
determination, the judge held the existence of a duty is one of
Juries don’t' decide whether she should or
shouldn’t have done this; juries decide
whether or not they breached the duty, by not
doing something that they were required to do,
or doing something they were not supposed to
do. So I decide the duty, or the appeals
. . . .
Under the circumstances of this case, I'm
satisfied that the defendant-homeowner did not
violate any duty. The only duty that would
have made a difference in this particular case,
based on the evidence that is achievable, is
the dog's age and the claim, unsubstantiated
claim, that somehow the age of the dog is
sufficiently related to propensities to be
dangerous, bite, or otherwise act out to the
detriment of a groomer or veterinarian or
somebody else; that there was a duty that
would be imposed upon the owner to disclose
I accept, as I must, for the purposes of
this context, the plaintiff's statement that,
had she known that, that she would have
muzzled the dog; and, therefore, prevented the
injury from occurring. So I'm not altogether
unconvinced that there's a proximate cause
But I'm still satisfied that the
plaintiff – the defendant in this case did not
have an affirmative duty which was violated;
that is, they had no duty to disclose
information about the age of the dog.
The other issues about the dog's medical
or physical condition are pure speculation;
that it had bad hips or back or was otherwise
infirm, and that contributed to the happening
of this incident. As I understand it, there's
no proffer that the plaintiff was an expert,
had any medical training, was told anything
about the medical condition about the dog, nor
did she see any x-rays or diagnostic tests or
medical or veterinary reports that would
indicate that these things were so, after the
fact, even to demonstrate that that was
potentially a cause of the way this dog acted
The judge entered an order dismissing the complaint. On
appeal, plaintiff raises the following points:
THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF
STRICT LIABILITY UNDER THE DOG BITE STATUTE
AS THE ONLY CASE RELIED UPON BY DFENDANT,
REYNOLDS , IS DISTINGUISHABLE FROM THE FACTS
OF THE PRESENT CASE.
A. THERE IS A GENUINE ISSUE OF MATERIAL
FACT REGARDING WHETHER OR NOT
PLAINTIFF WAS AN EMPLOYEE OR
INDEPENDENT CONTRACTOR AT THE TIME OF
B. THERE IS A GENUINE ISSUE OF MATERIAL
FACT AS TO WHETHER THE NATURE OF
PLAINTIFF'S JOB FALLS WITHIN THE
EXCEPTION TO STRICT LIABILITY UNDER
THE DOG BITE STATUE AS CREATED IN
THE TRIAL COURT ERRED IN DISMISSING
PLAINTIFF'S COMPLAINT AS IT RELATES TO COMMON
A. [THE SECOND JUDGE] ERRED IN DISMISSING
PLAINTIFF'S COMMON LAW NEGLIGENCE
COUNT IN THE COMPLAINT AS [THE FIRST
JUDGE] HAD PREVIOUSLY HELD THAT
DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF'S COMMON LAW
NEGLIGENCE COUNT WAS DENIED.
B. [THE SECOND JUDGE] ERRED IN DISMISSING
PLAINTIFF'S COMMON LAW NEGLIGENCE
COUNT IN THE COMPLAINT AS THE MATTER
WAS LISTED FOR TRIAL AND A SUMMARY
JUDGMENT MOTION WAS NOT PENDING.
We first address plaintiff's argument that the motion judge
improperly granted partial summary judgment. In ruling on a
summary judgment motion, the motion judge must decide whether
there is a genuine issue of fact or, instead, whether the moving
party is entitled to judgment as a matter of law. R. 4:46-2(c).
The motion judge must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). The court must give the non-moving party
the benefit of all favorable inferences. Id. at 536. However,
"when the evidence 'is so one-sided that one party must prevail
as a matter of law,' . . . the trial court should not hesitate to
grant summary judgment." Id. at 540 (quoting Anderson v. Liberty
477 U.S. 242, 252 (1986)).
An appellate court reviews a grant of summary judgment de
novo, using the same standard as the trial court. Turner v. Wong,
363 N.J. Super. 186, 198-99 (App. Div. 2003). Thus, the appellate
court must determine whether a genuine issue of material fact is
present and, if not, evaluate whether the court's ruling on the
law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan,
307 N.J. Super. 162, 167 (App. Div.), certif. denied,
154 N.J. 608
Pursuant to N.J.S.A. 4:19-16:
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.
To establish a right of recovery under the 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 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 quotations omitted).
The statute was construed in a limiting fashion in Reynolds,
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 statue, 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 a suit against
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 defendants' negligence. Ibid.
After analyzing the facts and 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. Reynolds,
325 N.J. Super. 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
N.J.S.A. 4:19-16, because a veterinarian is in the profession
of caring for dogs. Ibid. (citing Nelson v. Hall, 154 Cal. App. 8 A-1829-16T4
3d 709 (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).
The circumstances presented here are similar to Reynolds in
that plaintiff was an experienced dog groomer. Prior to the
incident, she worked in that capacity for a number of years.
Plaintiff undertook the grooming of defendant's dog with the work
experience to recognize the risk of a bite and to take
precautionary measures. As she acknowledged implicitly during her
deposition, she could have muzzled the dog as a precautionary
measure but did not. We conclude that there was no proof that
defendant was aware of a dangerous propensity of her dog, which
she intentionally or negligently concealed. This failure of proof,
coupled with plaintiff's status, caused the judge to properly
apply the exception.
We next turn to plaintiff's argument that it was error for
the second judge to dismiss the common law negligence count in
disregard of the "law of the case." The "law of the case" doctrine
prohibits a second judge on the same level, in the absence of
additional developments or proofs, from differing with an earlier
ruling. It is a non-binding rule intended to prevent re-litigation
of a previously resolved issue. Lombardi v. Masso,
207 N.J. 517,
538 (2011). A hallmark of the "law of the case" doctrine is its
discretionary nature, calling upon the deciding judge to balance
the value of judicial deference for the rulings of a coordinate
judge against those factors that bear on the pursuit of justice
and, particularly, the search for truth. See Little v. KIA Motors
425 N.J. Super. 82, 91-92 (App. Div. 2012) (citations
Here, the second judge dismissed the common law negligence
count after finding that the issue of duty was a question of law
and not a question of fact. We agree as "[t]he determination of
the existence of a duty is a question of law for the court."
Petrillo v. Brachenberg,
139 N.J. 472,479 (1995).
Predicated upon the unrefuted facts from the discovery record:
that the dog was old, but not that it had a propensity to bite,
the judge held that defendant owed no duty to plaintiff as a matter
of law. The second judge properly exercised discretion in
reevaluating the legal issue.
Finally, we find no basis for error in the procedure employed
by the second judge. As noted, the motion was raised sua sponte
and resulted in a dispositive ruling. Notwithstanding, from our
review of the record, plaintiff's counsel who was well versed with
the discovery record, was provided a fair opportunity to be heard.