JOSEPH M. PALLIPURATH VS. NEW JERSEY DEPARTMENT OFCORRECTIONS(NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1761-15T3
TERRI L. HACKETT,
Plaintiff-Appellant,
v.
WILLIAM MUSEY and JOAN
MUSEY,
Defendants-Respondents.
_________________________________
Submitted February 27, 2017 – Decided March 24, 2017
Before Judges Sabatino and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County, Docket
No. L-1125-14.
Glen L. Schemanski, attorney for appellant.
Green, Lundgren & Ryan, P.C., attorneys for
respondents (Francis X. Ryan, on the brief).
PER CURIAM
In this action where plaintiff Terri L. Hackett was knocked
to the ground by a neighbor's dog, we address plaintiff's appeal
from the November 16, 2015 order granting summary judgment in
favor of defendant neighbors William and Joan Musey. After a
review of the contentions in light of the applicable principles
of law, we are satisfied that the trial judge correctly held that
plaintiff had failed to present a genuine factual issue that
defendants possessed the requisite scienter to hold them liable
for the actions of their dog and therefore summary judgment was
appropriate. We affirm.
We derive the facts from the summary judgment record, viewing
them in a light most favorable to the non-movant plaintiff. In
March 2012, plaintiff brought her rat terrier, Chancellor, to
defendants' property for a social visit. Chancellor and Molly,
defendants' sixty-pound Labrador, were permitted to run around the
backyard without leashes while plaintiff observed them from a
wooden swing. Plaintiff stated that she got up from the swing and
started walking across the backyard with her dog Chancellor in
front of her, when Molly suddenly knocked her down from behind,
causing her to sustain injury.
Defendants moved for summary judgment, and after oral
argument, Judge Robert G. Millenky granted the motion. Relying
on Jannuzzelli v. Wilkins, 158 N.J. Super. 36 (App. Div. 1978),
the judge found that defendants had no liability for the injury
caused by their dog because plaintiff could not prove defendants
knew or should have known their dog would have acted in a way that
would cause harm to another. This appeal followed.
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We review a grant of summary judgment under the same standard
as the trial court. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41
(2012). Summary judgment is proper where there is no genuine
issue of material fact, when the evidence is viewed in the light
most favorable to the non-moving party, and the moving party is
entitled to prevail as a matter of law. Id. at 38, 41; R. 4:46-2
(c).
Plaintiff argues on appeal that defendants were negligent in
allowing their sixty-pound dog to run freely on their property in
the presence of guests and contends that the trial judge's reliance
on Jannuzzelli was erroneous. We disagree.
In the case of a dog bite, the New Jersey dog bite statute,
N.J.S.A. 4:19-16, imposes absolute liability on the dog owner for
resulting damages. In Jannuzzelli, we explained that absent such
a dog bite, a common law cause of action for absolute liability
is available to a plaintiff injured by the actions of a dog if a
plaintiff can prove the defendant had "scienter" – knowledge - of
the dog's "vicious or mischievous propensities." Jannuzzelli,
supra, 158 N.J. Super. at 41. Scienter is not limited to malicious
behavior; any prior knowledge by 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, is
sufficient to maintain the action." Id. at 41-42. Without
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scienter, an injured plaintiff is limited to bringing a negligence
action. DeRobertis v. Randazzo, 94 N.J. 144, 156 (1983).
In applying these principles, we are satisfied the grant of
summary judgment was appropriate. Plaintiff did not present any
evidence that defendants had any knowledge, actual or
constructive, that Molly possessed mischievous, excitable or
vicious propensities. The judge concluded that Molly
inadvertently bumped into plaintiff while chasing her dog; her
movement was not directed at plaintiff. Plaintiff knew the dogs
were running around the backyard unleashed and declined to either
insist that defendants' dog be placed on a leash or remove her own
dog from the situation.
Judge Millenky correctly found that plaintiff had presented
no proof of scienter or negligent conduct on the part of
defendants. He stated: "Given the absence of scienter and the
absence of any suggestion of scienter, this Court cannot find a
manner in which a reasonable fact finder would conclude that the
defendants knew of, and nonetheless allowed, their dog to act in
a way that would cause harm to another."
We briefly address plaintiff's contention that the summary
judgment motion was premature as the discovery period had not
ended. During oral argument, the trial judge asked plaintiff's
counsel whether there was any pending discovery that would address
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the issue of scienter, to which counsel acknowledged there was
none. We are satisfied that additional discovery would not have
supplied "'necessary information' to establish a missing element
in the case." See Mohamed v. Iglesia Evangelica Oasis De
Salvacion, 424 N.J. Super. 489, 498 (App. Div. 2012) (citation
omitted); see also R. 4:46-5.
Affirmed.
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