ANGELA CARPENTIERO v. THE ESTATE OF JANE POCKNETT

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE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
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1829-16T4

ANGELA CARPENTIERO,

        Plaintiff-Appellant,

v.

THE ESTATE OF JANE POCKNETT,

     Defendant-Respondent.
______________________________

              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.
              L-1369-14.

              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
              the brief).

PER CURIAM

        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 
N.J.S.A. 4:19-16.

      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).


1
  Jane Pocknett died before plaintiff filed her complaint and her
estate was named as a defendant.

                                     2                               A-1829-16T4
       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

law.

            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
            court.

                 . . . .

                 Under the circumstances of this case, I'm
            satisfied that the defendant-homeowner did not
            violate any duty. The only duty that would

                                      3                                A-1829-16T4
         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
         that fact.

              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
         link here.

              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
         out.

    The judge entered an order dismissing the complaint.          On

appeal, plaintiff raises the following points:



                               4                           A-1829-16T4
         POINT I

         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
                 THE ACCIDENT.

              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
                 REYNOLDS [].

         POINT II

         THE   TRIAL   COURT   ERRED   IN   DISMISSING
         PLAINTIFF'S COMPLAINT AS IT RELATES TO COMMON
         LAW NEGLIGENCE.

              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

                               5                          A-1829-16T4
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

Lobby, Inc., 
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

(1998).

      Pursuant to N.J.S.A. 4:19-16:

                                     6                             A-1829-16T4
               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


                                    7                             A-1829-16T4
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

of 
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,

                                    9                             A-1829-16T4
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

Am., Inc., 
425 N.J. Super. 82, 91-92 (App. Div. 2012) (citations

omitted).

      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.

      Affirmed.

                                       10                            A-1829-16T4