JANE M. CICHOSKI VS. RICHARD TURICK (L-2076-15, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0595-17T3
JANE M. CICHOSKI,
Plaintiff-Appellant,
v.
RICHARD TURICK and
CAROL E. TURICK,
Defendants-Respondents.
_________________________________
Argued October 10, 2018 – Decided November 2, 2018
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2076-15.
Scott D. Zucker argued the cause for appellant
(Sciarrillo, Cornell, Merlino, McKeever & Osborne,
LLC, attorneys; Nicholas F. Savio, of counsel and on
the briefs).
Harold H. Thomasson argued the cause for respondents
(Amy F. Loperfido & Associates, attorneys; Harold H.
Thomasson, on the brief).
PER CURIAM
Plaintiff Jane M. Cichoski appeals from an order filed by the Law Division
on July 25, 2017, which granted summary judgment in favor of defendants
Richard Turick and Carol E. Turick (Ms. Turick), and an order filed on
September 29, 2017, which denied plaintiff's motion for reconsideration. We
affirm.
Plaintiff filed a complaint against defendants seeking damages for injuries
she sustained when she was bitten by defendants' dog, a golden retriever named
Harrison. Plaintiff claimed defendants were strictly liable under the so-called
dog-bite statute, N.J.S.A. 4:19-16. Plaintiff also claimed defendants were
negligent in failing to control their dog and allowing the dog to bite her.
Defendants filed an answer denying liability. After the parties engaged in
discovery, defendants filed a motion for summary judgment, which plaintiff
opposed.
The record before the trial court on the summary judgment motion reveals
the following. In June 2010, plaintiff obtained a dog-grooming certificate from
a school in Michigan, and since October 2010, has operated a dog-grooming
business in Long Branch. Beginning in 2011, defendants brought Harrison to
plaintiff to be groomed. When defendants first brought Harrison for grooming,
they informed plaintiff the dog "was a little problematic."
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Plaintiff claims she interpreted this statement to mean Harrison did not
"care to be groomed." Plaintiff placed a muzzle on the dog every time she
groomed him because she did not "want any of [her] employees to get hurt and
[she] felt it was safer." Plaintiff groomed Harrison six or more times before
June 6, 2013, when Ms. Turick brought Harrison to plaintiff's business. On that
date, defendants arranged to have plaintiff bathe the dog, cut his hair, clean his
ears, and trim his nails. As she had done in the past, plaintiff put a muzzle on
the dog.
Plaintiff bathed and dried Harrison, and there was no indication he was
agitated or aggressive. Plaintiff then began to trim the hair around Harrison's
rear when he suddenly pulled the muzzle off with his paw, whipped his head
around, and bit plaintiff once on her left arm. According to plaintiff, the dog
sunk his teeth into her arm and shook it. Plaintiff screamed loudly, after which
Harrison released his grip on plaintiff's arm.
Plaintiff went to the Monmouth Medical Center for treatment. While in
the waiting area, Ms. Turick arrived at the hospital. According to plaintiff, Ms.
Turick was very upset. She apologized and told plaintiff she wanted to pay her
medical bills. Plaintiff was treated for about ten puncture wounds, one of which
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was sutured, and she was given antibiotics. Plaintiff was discharged from the
hospital the same day.
When plaintiff awoke the next day, she noticed her arm was enlarged and
discolored. After consulting her primary care physician, plaintiff returned and
was admitted to the hospital. Plaintiff stayed in the hospital for about six days.
Plaintiff was treated with antibiotics and pain medication. She also was given a
soft cast to wear in the hospital and instructed to wear the cast for five additional
weeks.
After plaintiff was discharged from the hospital, she attended physical
therapy, but ceased attending after four or five sessions because her insurance
did not cover the therapy. Plaintiff continued, however, to do the recommended
exercises at home. She also saw a neurologist for potential nerve damage, but
the test results were negative.
At her deposition, plaintiff testified that due to her injuries, she was unable
to work for approximately six weeks and closed her business on days where no
one was available to replace her. She also stated that, due to the incident, she
still gets occasional pain and swelling in her wrists and no longer likes to groom
big dogs.
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The judge heard oral argument on defendants' summary judgment motion,
and on July 25, 2017, placed a decision on the record. The judge concluded
there were no genuine issues of material fact, and defendants were entitled to
judgment as a matter of law. The judge applied the principles enunciated in
Reynolds v. Lancaster County Prison, 325 N.J. Super. 298 (App. Div. 1999),
where we held that an independent contractor who agrees to care for a dog could
not assert a claim against a dog owner under N.J.S.A. 4:19-16 for a dog bite
unless the dog owner "purposefully or negligently conceals a particular known
hazard from the" independent contractor. Id. at 324 (quoting Nelson v. Hall,
211 Cal. Rptr. 668, 673 n.4 (1985)). The judge found that Reynolds applies to
persons like plaintiff, who are engaged in the commercial dog-grooming
business.
The judge pointed out that it was undisputed that defendants had put
plaintiff on notice that Harrison might bite while being groomed. The judge
stated that plaintiff had knowledge of the risk, not just through her professional
training and experience, but due to her experience with this particular dog. The
judge noted that plaintiff had chosen "to muzzle [Harrison] each and every time
the dog was [brought to] her to be groomed."
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On July 25, 2017, the judge entered an order granting summary judgment
to defendants. Plaintiff then filed a motion for reconsideration. The judge heard
oral argument on the motion and placed a decision on the record, finding there
was no basis to reconsider her decision. On September 29, 2017, the judge filed
an order denying the motion. This appeal followed.
On appeal, plaintiff argues: (1) the trial court erred by concluding that like
a veterinarian, a dog groomer "assumes the risk of a dog bite when working with
a dog with no legal basis o[r] factual testimony that would align the two
professions[;]" (2) the motion judge "did not consider that defendants
purposefully concealed the dog's violent propensity from plaintiff[;]" and (3)
"the trial court failed to properly apply the summary judgment standard."
When reviewing a trial court's order granting summary judgment, we
apply the same standard the trial courts apply in considering a summary
judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.
162, 167 (App. Div. 1998) (citing Antheunisse v. Tiffany & Co., 229 N.J. Super.
399, 402 (App. Div. 1988)). The trial court should grant summary judgment if
"there is no genuine issue as to any material fact challenged and . . . the moving
party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see
also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
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Furthermore, "[a]n issue of fact is genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on the motion,
together with all legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact." R. 4:46-2(c). The
court should "not resolve contested factual issues[,]" but rather "determine[]
from the record whether the alleged factual disputes are genuine." Davidovich
v. Isr. Ice Skating Fed'n, 446 N.J. Super. 127, 158 (App. Div. 2016) (citing
Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005)).
In addition, we must determine "whether the motion judge's application
of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.
Super. 224, 231 (App. Div. 2006) (citing Prudential, 307 N.J. Super. at 167).
We need not defer to the trial court's legal determinations, which we review de
novo. Davidovich, 446 N.J. Super. at 159 (citing W.J.A. v. D.A., 210 N.J. 229,
237-38 (2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995)).
The dog-bite statute states, in relevant part:
[t]he 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
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viciousness of such dog or the owner's knowledge of
such viciousness.
[N.J.S.A. 4:19-16.]
"To recover under [the statute], 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 property." DeRobertis v. Randazzo, 94 N.J.
144, 158 (1983). "Satisfaction of the elements of the statute imposes strict
liability . . . for damages sustained by [the] plaintiff." Pingaro v. Rossi, 322 N.J.
Super. 494, 503 (App. Div. 1999) (citing Jannuzzelli v. Wilkens, 158 N.J. Super.
36, 39 (App. Div. 1978); Tanga v. Tanga, 94 N.J. Super. 5, 12 (App. Div. 1967)).
However, in Reynolds, we recognized an exception to the imposition of
strict liability. We held that:
[w]hen a dog owner turns his dog over to an
independent contractor who has agreed to care for the
dog, the owner is not liable under the dog-bite statute
when the dog bites the independent contractor unless
the owner knew, or had reason to know, the dog was
vicious and withheld that information. Similarly, under
the doctrine of primary assumption of the risk, as
described in Emmons[ v. Stevane, 77 N.J.L. 570, 573-
74 (E. & A. 1908)], it would appear that an owner
would not be liable under the statute to an independent
contractor who undertakes the care of a domestic
animal with knowledge that it is particularly dangerous.
[Reynolds, 325 N.J. Super. at 324.]
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On appeal, plaintiff argues that the motion judge erred by applying
Reynolds to persons engaged in the commercial dog-grooming business.
Plaintiff asserts there was no expert report likening dog groomers to
veterinarians with regard to assumption of the risk of being bitten by a dog.
Plaintiff notes that veterinarians must be licensed, while dog groomers do not
need a license. Plaintiff argues that comparing a veterinarian to a dog groomer
is like comparing a medical doctor to a hairdresser. We disagree.
The principles enunciated in Reynolds are not confined to veterinarians.
The plaintiff in Reynolds worked for a guard dog company as a dog handler and
he was seriously injured when one of the company's dogs attacked him. Id. at
306. The Reynolds court noted that in general, a landowner has the duty to "use
reasonable care to protect independent contractors [from] known or reasonably
discoverable dangers." Id. at 321-22 (citing Kane v. Hartz Mountain Indus., 278
N.J. Super. 129, 140 (App. Div. 1994), aff'd, 143 N.J. 141 (1996); Accardi v.
Enviro-Pak Sys. Co., 317 N.J. Super. 457, 462 (App. Div. 1999)).
The court also relied on Nelson v. Hall, 211 Cal. Rptr. 668 (1985), in
which the California Court of Appeal held that a veterinarian could not recover
under the California dog-bite statute based on assumption of the risk. Reynolds,
325 N.J. Super. at 323-24. The Reynolds court held that "a veterinarian has all
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of the characteristics of an independent contractor" and "the owner [of a dog] is
not liable under the dog-bite statute when the dog bites the independent
contractor unless the owner knew, or had reason to know, the dog was vicious
and withheld that information." Id. at 324.
Thus, Reynolds applies to any independent contractor who "agree[s] to
care for a dog." Ibid. Such persons include individuals like plaintiff, who are
engaged in the business of grooming dogs. These individuals are "aware of the
risk that any dog, regardless of its previous nature, might bite while being"
groomed. Ibid. (quoting Nelson, 211 Cal. Rptr. at 709).
We therefore reject plaintiff's contention that there was insufficient
evidence before the trial court to support the conclusion that dog groomers
assume the risk of a dog bite in the same manner as veterinarians. Expert
testimony comparing the education, training, and experience of veterinarians
and dog groomers was not required. Moreover, Reynolds dealt with a dog
handler, not a veterinarian. Id. at 306.
In denying plaintiff's motion for reconsideration, the judge stated,
"Whether it's as a veterinarian or a guard dog or a dog groomer, someone going
into a business dealing with dogs, as any lay person would know, that dogs are
capable of biting humans." Furthermore, in her deposition testimony, plaintiff
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stated that she is in the commercial dog-grooming business, and being bitten by
dogs "goes with the territory."
Plaintiff further argues that the motion judge erred in her application of
the summary judgment standard. She contends there was a genuine issue of
material fact as to whether defendants concealed the dog's "violent past."
Plaintiff asserts that defendants never told her that Harrison had "violent
propensities."
Plaintiff notes that although Ms. Turick stated in her certification that the
dog had "nipped" her and her sister, she never informed plaintiff of these
incidents. As we noted previously, plaintiff asserts that any warning she
received led her to believe the dog did not like to be groomed. She states she
did not have an "understanding from the warning that the dog might violently
and viciously attack her."
We are convinced, however, that the trial court correctly concluded that,
based on the evidence presented, a reasonable fact-finder could only reach one
conclusion – specifically, that plaintiff had sufficient warning Harrison might
bite her while he was being groomed. As we stated previously, plaintiff muzzled
Harrison on at least six prior occasions when she groomed him, including his
first visit to her business. Plaintiff admitted she muzzled the dog "because [she
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didn't] want any of [her] employees to get hurt and [she] felt it was safer." The
judge determined that "a reasonable fact-finder could . . . only conclude that the
purpose for muzzling a dog was an attempt to prevent a dog bite[.]"
The record supports the judge's decision. The judge correctly found that
there was no genuine issue of material fact as to whether plaintiff was warned
that Harrison might bite while being groomed. The judge correctly determined
that the evidence on this issue was "so one-sided" that defendants were entitled
to "prevail as a matter of law." Brill, 142 N.J. at 540 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
Plaintiff's remaining arguments lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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