DeRobertis v. Randazzo

Supreme Court of New Jersey · 1983 · Torts

Tortsdog-bite liabilitystrict liabilitytrespassersinfant trespasserscomparative negligenceN.J.S.A. 4:19-16dog bite

Facts

Five-year-old Peter DeRobertis was bitten on the head by defendant Randazzo's chained German Shepherd while at Randazzo's auto body shop. Peter often accompanied his father, who did towing work for Randazzo, and he had roamed around the shop and sometimes performed small tasks. On the day of the accident, after being left at the shop, Peter approached the barking dog in the area near where it was chained and was bitten when he bent down to tie his shoelace. Randazzo was not present that day, and the trial court did not ask the jury to decide whether Peter had express or implied permission to be in that particular area.

Issue

Whether liability for the bite could be imposed under New Jersey's dog-bite statute without a jury finding that the child was lawfully on the part of the owner's property where the dog was chained. Also, if the child was not lawfully there, what common-law standards govern the owner's liability.

Rule

Under N.J.S.A. 4:19-16, a plaintiff must prove that the defendant owned the dog, that the dog bit the plaintiff, and that the plaintiff was in a public place or lawfully on the owner's private property. Lawful presence on private property means express or implied permission to be on the property, and the plaintiff must reasonably believe that the permission extended to the place of the accident; invitees and licensees are covered, but trespassers are not. Independently of the statute, if the owner knew or should have known of the dog's dangerous characteristics, the owner is subject to common-law absolute liability for injuries caused by that dangerous characteristic unless the owner proves the plaintiff's contributory negligence, with comparative negligence governing the effect of that fault; absent scienter, liability depends on negligence. The owner of an abnormally dangerous dog also owes a duty of ordinary care to an infant trespasser.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Newark, Lena Ortiz regularly visited her uncle's machine shop after school and was allowed to wait in the front office and main work bay. One afternoon, while her uncle was away, Lena opened a latched side gate marked "Employees Only" and walked into a storage yard where a chained dog bit her leg.

If Lena sues the dog's owner under New Jersey's dog-bite statute, which issue is most critical to statutory liability?

Explanation. Under the majority rule, statutory liability requires proof that the plaintiff was lawfully on the private property. Lawful presence means express or implied permission, and the plaintiff must reasonably believe that the permission extended to the specific place of the accident. The statute does not turn on negligence, prior bites, or an automatic infant exception.