5.60A STATUTORY OWNER ‑ DOG BITE LIABILITY
Plaintiff,
___________________, alleges that he/she was injured as a result of a bite from
a dog owned by the defendant, __________________.
The liability of an owner of a dog is
one imposed by statute, namely N.J.S.A.
4:19‑16, which in its pertinent parts reads as follows:
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.
[The remaining part or parts of the statute
should be charged where applicable.]
For the purpose of this
section, a person is lawfully upon the private property of such owner when
he/she is on the property in the performance of any duty imposed upon him by
the laws of this state or the laws or postal regulations of the United States,
or when he/she is on such property upon the invitation, express or implied, of
the owner thereof.
In order for you to find the
defendant, _____________ liable, the plaintiff, ______________, must establish
by a preponderance of the evidence the following elements:
1. That the defendant, ___________________,
was the owner of the dog in question;
2. That the plaintiff, ___________________,
was on or in a public place or lawfully on or in a private place, including the
property of the defendant, and finally
3. That the dog did bite the plaintiff while
in such a place.[2]
If you find that the plaintiff,
__________________, has failed to establish any of the foregoing elements, your
verdict will be in favor of the defendant,[3]
_____________.
In deciding whether the
plaintiff was on or in a public place or lawfully on or in a private place,
including the property of the defendant, you should note that anyone whose
presence is expressly or impliedly permitted on the property is entitled to the
protection of the statute I have just read; the permission extends to all areas
which the plaintiff may reasonably believe to be included within its scope.[4]
If you find that the plaintiff,
___________________, has established each of the foregoing elements, your
verdict will be in favor of the plaintiff,[5]
_________________.
NOTE
TO JUDGE
You will note that the statute imposes liability on an owner,
regardless of the former viciousness of such dog or the owner’s knowledge of
such viciousness.
If you conclude in favor of the
plaintiff, ___________, you must then proceed to the question of damages.
A. Dog
Bite Liability — Plaintiff’s Comparative Negligence/Burden of Proof
In a case such as this where the
defendant has raised the negligence of the
plaintiff as a
defense, the defendant has the burden of proof.
This means that the defendant has the burden to prove plaintiff’s
“unreasonable and voluntary exposure to a known risk.” This means that the plaintiff “knew” the dog
had 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. For example, one who beats or torments a dog
has no call upon the owner if in self-defense the dog bites back.[6]
Source: https://njcourts.gov/attorneys/civilcharges.html
[2] See DeVivo
v. Anderson, 410 N.J. Super. 175
(Law Div. 2009), where the trial court granted summary judgment to the
plaintiff finding that all elements of the cause of action were established
even where the skin was not broken by the bite.
The court reasoned that there is no explicit requirement in N.J.S.A. 4:19-16 that the injury result
in broken skin.
[3] Where an
issue of fact exists as to whether defendant is the owner of the dog involved
or as to whether the plaintiff was unlawfully on or in a private place when the
biting occurred, it may be necessary to supplement this charge with additional
instructions as to absolute liability of owners and keepers of vicious animals
and/or the duty, under ordinary negligence theories, of the owner of premises
to invitees, licensees, infant trespassers, and other trespassers who come upon
the premises where the dog is kept, see DeRobertis
v. Randazzo, 94 N.J. 144 (1983); Mascola v. Mascola, 168 N.J. Super.
122 (App. Div. 1979); Nakhla v. Singer‑Shoprite,
205 N.J. Super. 184 (App. Div. 1985), certif.
denied, 102 N.J. 399 (1986).
[5] Where
there is an issue of comparative negligence, that charge should be
inserted. See Foy v. Dayko, 82 N.J.
Super. 8, 14 (App. Div. 1964) “[T]he Legislature did not intend to abolish
the defense of contributory negligence in enacting [the dog bite statute].”
[6] Budai v. Teague,
212 N.J. Super. 522 (Law Div. 1986); see also Dranow v. Kolmar , 92 N.J.L. 114,
116‑17 (1918).
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