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

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

2 A-1761-15T3 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

3 A-1761-15T3 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

4 A-1761-15T3 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.

5 A-1761-15T3