SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3718-97T3
A-3732-97T3
GLEN CURT REYNOLDS and DIONNA
M. REYNOLDS,
Plaintiffs-Respondents,
and
GUARD DOGS UNLIMITED, INC.,
Plaintiff,
v.
LANCASTER COUNTY PRISON,
Defendant-Appellant,
and
KEN GEIB,
Defendant.
MARTIN ABBOTT,
Plaintiff-Respondent/
Cross-Appellant,
v.
GUARD DOGS UNLIMITED, INC.
and LANCASTER COUNTY PRISON,
Defendants-Appellants/
Cross-Respondents,
and
GLEN REYNOLDS, VINCENT A. GUARINI,
ALAN J. HIMMELSBACH and
KENNETH L. GEIB,
Defendants.
Argued September 21, 1999 - Decided October 27, 1999
Before Judges Petrella, Braithwaite, and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Essex County.
Robert D. Kretzer argued the cause for
appellant (Lamb, Hartung, Kretzer, Reinman &
DePascale, attorneys; Mr. Kretzer, on the
brief).
John R. Knodel argued the cause for appellant
Guard Dogs Unlimited, Inc. (Methfessel &
Werbel, attorneys; Mr. Knodel, on the brief).
Mitchell B. Seidman argued the cause for
respondent/cross-appellant Martin Abbott
(Ravin, Sarasohn, Cook, Baumgarten, Fisch &
Rosen, attorneys; Mr. Seidman, of counsel and
on the brief; Christine Fader, on the brief).
David A. Mazie argued the cause for
respondents Glen Curt Reynolds and Dionna
Reynolds (Nagel, Rice & Dreifuss, attorneys;
Mr. Mazie, of counsel and on the brief; Randee
M. Matloff, on the brief).
The opinion of the court was delivered by
COBURN, J.A.D.
The primary defendant in these consolidated dog-bite cases is
Lancaster County Prison ("LCP"), a Pennsylvania public entity.
During the fourteen months it owned Diesel, a 134-pound Rottweiler
trained as an attack dog for prisoner control, the dog bit prison
guards on five separate occasions. Despite Diesel's demonstrated
propensity for unprovoked attacks on humans, LCP brought Diesel to
New Jersey and gave him to defendant Guard Dogs Unlimited, Inc., a
New Jersey corporation ("Guard Dogs"). LCP did not disclose
Diesel's vicious disposition.
Within a month, Diesel attacked and bit plaintiff Martin
Abbott, an independent contractor working for Guard Dogs in New
Jersey. And less than a month later, again in New Jersey, Diesel
attacked and bit the principal of Guard Dogs, plaintiff Glen Curt
Reynolds. Neither attack was provoked; both were savage, sudden
and unexpected, and the plaintiffs suffered grievous personal
injuries.
The cases were tried together to a jury. The jury rejected a
claim of fraud but found LCP liable to plaintiffs for the tort of
negligent misrepresentation involving risk of physical harm. It
also found Guard Dogs liable to Abbott under the dog-bite statute,
N.J.S.A. 4:19-16, and because Guard Dogs had negligently failed to
discover and disclose to Abbott the dog's history. In Abbott's
case, the jury assessed comparative fault at 85" for LCP and 15" for Guard Dogs. In Reynolds' case, the jury assessed comparative
fault at 75" for LCP and 25" for Mr. Reynolds. The jury assessed
Abbott's damages at $1,500,000, Mr. Reynolds' damages at
$1,400,000, and Mrs. Reynolds' damages for her per quod claim at
$250,000. Following an assortment of post-trial motions, which
were all denied by the trial court, and a molding of the verdicts
to reflect the comparisons of fault, judgment was entered.See footnote 1 We
affirm.
Defendant LCP appealed based on the following contentions: (1)
it was entitled to a directed verdict because plaintiffs failed to
prove the tort of negligent misrepresentation and because of the
immunity allegedly provided by the Political Subdivision Tort
Claims Act of Pennsylvania ("PSTCA"); (2) it was entitled to
application of the $500,000 damages-cap of the PSTCA; and (3) it
was entitled to a new trial because the verdicts were excessive and
because the trial court erred in the admission of certain evidence
and in its charge on that evidence.
Defendant Guard Dogs also appealed. It contends that (1)
Abbott was not entitled to recover because of his status as an
independent contractor; (2) the trial court's charge on the
independent contractor defense was erroneous; (3) the court erred
in failing to charge assumption of the risk; (4) the liability
verdict was against the weight of the evidence; and (5) the damage
award was excessive.
Plaintiff Abbott filed a cross-appeal in which he argues (1)
under the dog-bite statute he was entitled to a judgment permitting
him to seek 100" of his damages from Guard Dogs; and (2) under the
Offer of Judgment Rule, R. 4:58, he was entitled to reimbursement
from Guard Dogs for his attorney's fees and expenses, plus
interest.
As a preliminary matter, we take note of our obligation "to
accept as true all evidence supporting the jury's verdict and to
draw all reasonable inferences in its favor wherever reasonable
minds could differ." Harper-Lawrence, Inc. v. United Merchants &
Mfrs., Inc.,
261 N.J. Super. 554, 559 (App. Div.) certif. denied,
134 N.J. 478 (1993) (citing Dolson v. Anastasia,
55 N.J. 2, 5
(1969). With that principle in mind, these are the facts bearing
on liability.
LCP, a public entity of the Commonwealth of Pennsylvania, is a maximum security prison. In 1994 and 1995, its correction officers used trained attack dogs to assist in controlling the prisoners. By early March 1994, the prison had obtained a 134 pound Rottweiler named Diesel. The dog was assigned for training to Corrections Officer Kenneth Geib. By August, although the dog was still in training, Geib began to use him for prisoner control. Over the next nine months, Geib and Diesel participated in numerous situations involving prisoner violence. In each instance, the dog performed properly, but he was involved in five other incidents in which he bit corrections officers.
The first incident occurred a few days after Diesel arrived at the prison. During a training session, when Geib pulled on the dog's leash to stop him from barking at another dog, he turned and bit Geib on the finger. The second incident occurred in June 1994, when Diesel was being trained by another officer, Robert Barley. When Barley pulled on the leash to correct poor behavior, the dog jumped him, biting the clothing covering his chest and then his arm.
The remaining incidents all involved Geib. On October 6, 1994, Diesel bit Geib on both arms during a training session. On April 20, 1995, Geib noticed that Diesel and another dog were "barking and going nuts on each other" and he "called him to come back in his run . . . ." Diesel jumped on him and "[t]hen he came back up and he bit me in my left arm . . . ." The fifth incident occurred on April 28, 1995. Geib found Diesel facing another dog that was on the other side of a screen. When Geib reached down to pull Diesel away, the dog "spun around and he did immediately bite me in my arm."
After each bite, Geib submitted to his supervisor an "Unusual Activity Report." After the last attack, Geib included within his report a recommendation to get rid of Diesel. He wrote: "Based on my experience as handler, I feel there is an irreversible medical problem with K-9 Diesel and recommend K-9 Diesel be removed from the program." On the bottom of that form, Geib's supervising officer, Sergeant Alan Himmelsbach, wrote that he agreed with Geib and that "K-9 Diesel is a Liability! Suggest K-9 Diesel Be Put Down."
Guard Dogs, a New Jersey corporation, owned about fifty guard dogs which it rented to businesses to secure their premises at night. During the day, the dogs were either kept in kennels at various locations in New Jersey, or were maintained by Guard Dogs in kennels located on customers' premises. At night, the dogs were either brought to the customers' premises or, if kept there, were released for patrol. In the morning, the handlers returned the dogs to their kennels, fed them, and cleaned the premises. Guard Dogs also rented the second floor of a warehouse in Newark where it kept supplies and had a single kennel.
Reynolds, an experienced dog trainer, decided to employ Abbott in early 1994 as an independent contractor to assemble kennels, cover the tops of outdoor kennels with roofing, and to perform other odd jobs. Later in 1994, Reynolds trained Abbott to handle dogs. Soon Abbott became Reynolds' "right-hand man." Confident in Abbott's abilities to run the company's daily operations, Reynolds moved to Maine but kept a residence in New Jersey. Although Reynolds maintained daily contact with Abbott and continued to supervise the business, Abbott took on the responsibility of supervising the other dog handlers and maintaining the kennels and dog houses.
In late April or within the first few days of May 1995, Sergeant Himmelsbach decided to offer Diesel to Guard Dogs. When he spoke to Reynolds by telephone, he said that the prison had a dog that needed to be placed and immediately referred Reynolds to Geib. According to Reynolds' testimony, Geib told him that Diesel had become increasingly aggressive toward other dogs and, as a result, was unsuitable for the prison. Geib added that the dog had been "very well trained. He had been through obedience and protection training as well as agility training" and had been "certified." Reynolds asked for "a rundown on what the problems were and just any details that he thought would be important for us to know." He also asked if the dog had ever bitten anyone. Geib replied that on one occasion, when he was breaking up a dog fight, Diesel "nipped" him. Geib's testimony confirmed Reynolds' description of this conversation.
Shortly thereafter, at Reynolds' direction, Abbott arranged to meet Geib on May 6, 1995, at Exit 6 of the New Jersey Turnpike, to take possession of Diesel. When they met, Geib told Abbott that the dog was tranquilized because he did not "travel well." He said the dog was friendly toward people. He emphasized the point by adding that sometimes the dog was shown to prison visitors, and that on one occasion the dog had approached a woman visitor and had leaned against her leg. Abbott admitted that Geib also told him of an incident in which he was nipped by the dog and showed him a small, stitched wound on his arm. According to Abbott, Geib explained that he received the bite while breaking up a dog fight.
The dog was placed in a crate in Abbott's truck, and Geib concluded the transaction by handing Abbott a sealed manilla envelope containing Diesel's certificates and his veterinary record.
Although Reynolds was unsure about when he looked at the contents of the manilla envelope, it was definitely after the attack on Abbott. The veterinarian's record revealed one of the earlier attacks by Diesel. Reynolds testified that had he known about the five attacks, he would not have accepted the dog. He also said that had he known that the dog had two attacks on people within eight days before the day of the transfer, he absolutely would not have accepted the dog.
Abbott brought Diesel to the Newark warehouse and placed him in the kennel. In accordance with Reynolds' instructions, Abbott began to bond with Diesel in preparation for becoming his handler. During the first two weeks, that process involved feeding, watering, talking to, and just being around the dog. Later, he exercised the dog by walking him around the warehouse floor, and on at least one occasion he took the dog with him for a ride in his truck.
On the morning of May 31, 1995, Abbott cleaned Diesel's kennel, fed and watered him, latched the kennel gate, and left to perform other duties. Around 3:00 p.m., Abbott returned to the warehouse to pick up some tools. As he started gathering the tools, he sensed that something was behind him. Turning, he saw Diesel standing outside his kennel. The dog rushed him, bit down on his arm, and would not let go. Abbott described the attack:
I felt the teeth sink in my arm and I tried to . . . pull my arm out of the dog's mouth, but he just kept biting down harder.
I tried to tighten the collar up enough
to choke him. And that didn't work. . . . [I
thought] I was going to die. . . . I got him
to the edge of the building where I could
stand him in the corner. . . . I was already
covered with blood at that time. And I had a
pair of high boots on and I could feel the
blood squishing between my toes at that time.
So I got him stood up and I leaned
against him. And at that time I tried to
choke him again 'cause I had a better hold and
it didn't bother him.
So I get to the point where I just looked
down and I could just see the jaws going up
and down on my arm . . . . And I could just
feel him crunching on my bone . . . .
I drove my fingers in his eye sockets . .
. [and] squeezed my fingers together in his
head. . . . [H]is jaw had actually let go
enough off my bone. . . . And then I ripped
my arm out of his mouth and I still had a hold
in his eye sockets. At that point I dragged
him to the kennel and dragged him back inside.
Abbott then managed to get down to the loading dock, where he
met a man who called for an ambulance.
Reynolds learned of the attack and immediately returned to New
Jersey. Although he testified that he had only taken Diesel on a
trial basis, reserving the unexpressed option of returning the dog
to LCP, he never called the prison to arrange for the dog's return.
He reinforced the kennel by putting a top on it, by adding or
replacing the latch, and by placing a chain and padlock on the
gate. During the next three weeks, he kept the dog in the kennel,
providing food and water, and cleaning away the dog's droppings.
On June 24, 1995, Reynolds, having decided to bring Diesel to
the ASPCA, entered the warehouse and approached the dog's kennel.
This is his description of the ensuing attack:
I opened the kennel door slightly, about
an inch and a half, just enough to slide the
kennel pole through the crack and gate. And .
. . he was well within reach of the kennel
pole and I just reached in to put it around
his neck. He wasn't growling or barking or,
you know, or going crazy but he moved just
enough to avoid the . . . noose on the kennel
pole and put his head down and he almost
rammed the gate. . . . And he hit hard enough
to . . . push me backwards and force his way
through the kennel.
As he did that, he . . . slipped and went
down. And when he came up, it was obvious
that he had focused on me. And was in an
aggressive approach. And he was . . . coming
up in my groin area. And started to attempt
to bite me in the groin area. And so I used
the kennel pole to deflect his attack.
I started to back up and I trying to pull
my gun. And he jumped and hit me in the chest
and knocked me over backwards.
[He] grabbed me in my biceps area and
just basically swallowed my whole arm here.
And he started to chew. . . . I yelled at
him. I told him out. I told him ous. I gave
him German commands. And it had absolutely no
effect on him. He just continued to hold his
grip.
I then started to talk to him. I tried,
you know, soothe him a little bit so that, you
know, I could maybe, you know, get him to calm
down and so my tone changed and I was saying,
"It's okay, Diesel. It's okay." And then I
could feel that he was chewing on my arm. . .
. And I felt my . . . arteries or muscle snap
. . . . I knew I was in trouble. And I
started to bleed all over the place. Blood
was squirting in my face. It was all over the
floor.
And so I took my left hand and I shoved
it into his eyes as far as I could. . . .
[I]t didn't do any good at all so I took my
fingers out of his eyes.
And I rolled over on top of him and I
grabbed him by the throat and I choked him
until he passed out. . . . I remember
grabbing him by the nose and opening his mouth
so that I could get my arm out of his teeth.
And I stood up and I was able to get my
gun out. And I was trying to shoot him. I
had my gun out and I was trying to squeeze the
trigger. . . .
But I didn't have enough strength in my
right hand to pull the trigger. And so he
woke up and he bit me in the left leg. And he
had a hold of my left leg. And he was trying
to sink his teeth into the top. He had
already gotten his teeth to tear the skin on
the side of my leg. . . .
And so I looked over at my arm and I had
torn skin and my muscles were hanging out and
I was bleeding all over the place. And I knew
that I wasn't going to be able to hold my gun
still enough to shoot him so I switched hands.
And I shot him . . . in the top of the back
with my left hand. And he let go and he bit
me in the right ankle again.
And I shot him a second time and he let
go of my right ankle. And he started to run.
And so I shot him again a third time when he
was about 10 or 15 feet away from me . . . .
Reynolds then followed the dog, found him at the entry door,
sitting, but still alive. When another shot, this time to the
dog's head, did not cause death, Reynolds got a kennel pole, put
the noose around the dog's neck, and dragged him back to the
kennel. He secured the kennel, made his way outside, and entered
his truck. As he was trying to place a 911 call, his wife arrived.
She went next door and called for help. When the ambulance did not
arrive promptly, she drove her husband to the hospital.
LCP was found liable for the tort of negligent misrepresentation involving risk of physical harm. It admitted at trial and concedes here that this tort is recognized as common law by Pennsylvania and New Jersey; however, on appeal it introduced the new contention that the tort was inapplicable because it owed plaintiffs no duty. In the alternative, it argues that even if it breached a common law duty, as a matter of choice-of-law or comity, we should apply the Pennsylvania Public Subdivision Tort Claims Act ("PSTCA"), 42 Pa. Cons. Stat. Ann. §§ 8541 and 8542, which it claims provides immunity. We reject these contentions, and we also reject LCP's further argument that the PSTCA's $500,000 limitation on compensatory damages should be given recognition as a matter of comity.
A. THE TORT OF NEGLIGENT MISREPRESENTATION
LCP claims that plaintiffs' negligence action fails because they did not establish a special relationship giving rise to a duty of care. The tort of negligent misrepresentation involving risk of physical harm is defined in Restatement (Second) of Torts § 311 (1965):
(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results
(a) to the other, or
(b) to such third persons as the
actor should expect to be put in
peril by the action taken.
(2) Such negligence may consist of failure to
exercise reasonable care
(a) in ascertaining the accuracy of
the information, or
(b) in the manner in which it is
communicated.
"Pennsylvania has long recognized the common law tort of
negligent [mis]representation," Gibbs v. Ernst,
647 A.2d 882, 891
(Pa. 1994), and its intermediate appellate courts have specifically
accepted section 311 as law. Rice v. Bell Tel. Co.,
524 A.2d 522,
524 (Pa. Super. Ct. 1987); English v. Lehigh County Auth.,
428 A.2d 1343, 1356-57 (Pa. Super. Ct. 1981).
Although New Jersey has not yet considered section 311, we
have recognized the tort of negligent misrepresentation in other
contexts, see, e.g., Carroll v. Cellco Partnership,
313 N.J. Super. 488, 502 (App. Div. 1998), United Jersey Bank v. Kensey,
306 N.J.
Super. 540, 553-54 (App. Div. 1997), certif. denied,
153 N.J. 402
(1998), and Berry v. Playboy Enters., Inc.,
195 N.J. Super. 520,
529-32 (App. Div. 1984), certif. denied,
99 N.J. 231 (1985).
In deciding whether section 311 should be applied to the gift
of a vicious dog, we are guided by the general principles described
in Dunphy v. Gregor,
136 N.J. 99 (1994):
The imposition of a duty is the conclusion of
a rather complex analysis that considers the
relationship of the parties, the nature of the
risk--that is, its foreseeability and
severity--and the impact the imposition of a
duty would have on public policy. Ultimately,
whether a duty exists is a matter of fairness.
The Court also noted that it had
recognized, in numerous settings, that
traditional principles of tort liability can
be adapted to address areas in which
recognition of a cause of action and the
imposition of a duty of care are both novel
and controversial.
Application of the traditional tort of negligent
misrepresentation to the gift of a vicious dog is neither novel nor
controversial. Apart from section 311's longstanding, though
implicit, recognition of this cause of action, fairness and common
sense dictate endorsement of the principle in this context. LCP
knew of the dog's nature. The risk of attack was unquestionably
foreseeable since the dog had already bitten its handlers on five
occasions. Considering the dog's size, temperament, and training
as an attack dog, there was a grave risk to plaintiffs of severe
personal injury. Finally, imposition of the duties set forth in
section 311 in this instance would enhance the public policy,
recognized by our common law and dog-bite statute, of protecting
the public from vicious dogs. See DeRobertis v. Randazzo,
94 N.J. 144, 150-55 (1983).See footnote 2 Therefore, we hold that section 311 expresses
a common law doctrine applicable to any transfer of a vicious dog
in this state. Under that section, the duty of care arises
whenever the elements of the tort are proven.
B. LCP'S IMMUNITY CLAIMS
Relying on the principles of comity and choice-of-law, LCP
demands full immunity under the PSTCA or, at least, a reduction of
plaintiffs' damage claims to the limits of liability established by
the PSTCA.
"Comity is not a binding obligation on the forum state, but a
courtesy voluntarily extended to another state for reasons of
'practice, convenience and expediency.'" City of Philadelphia v.
Austin,
86 N.J. 55, 64 (1981) (citation omitted). That courtesy
must not be extended to the foreign state when the result "would
contravene the public or judicial policy of the forum state."
Ibid.
Choice-of-law is determined by application of a "flexible
'governmental-interest' standard, which requires application of the
law of the state with the greatest interest in resolving the
particular issue that is raised in the underlying litigation."
Gantes v. Kason Corp.,
145 N.J. 478, 484 (1996) (citations
omitted). Under this standard, the first question to be answered
is whether there is an "actual conflict between the laws of the
respective states, a determination that is made on an issue-by
issue basis." Ibid. If a conflict exists, we are obliged to
"'identify the governmental policies underlying the law of each
state and how those policies are affected by each state's contacts
to the litigation and to the parties.'" Id. at 485 (citation
omitted).
LCP's claim of full immunity is based on the PSTCA. That
statute begins with the proposition that no liability may be
imposed on a local public agency unless the act so permits. 42 Pa.
Cons. Stat. Ann. § 8541. The next section, 8542(a), provides that
a local agency may be held liable if (1) the "damages would be
recoverable under common law or a statute" in an action against a
nongovernmental person or entity; or (2) "[t]he injury was caused
by the negligent acts of the local agency or an employee thereof
acting within the scope of his office or duties with respect to one
of the categories listed in subsection (b)." One of the categories
of activity listed in section 8542(b) is
(8) Care, custody or control of animals.- The
care, custody or control of animals in the
possession or control of a local agency,
including but not limited to police dogs and
horses. Damages shall not be recoverable
under this paragraph on account of any injury
caused by wild animals, including but not
limited to bears and deer, except as otherwise
provided by statute.
LCP argues that since it was not in "possession or control" of
Diesel at the time of the attacks, it is immune from liability
under the PSTCA. This argument overlooks the nature of the tort of
negligent misrepresentation involving risk of physical harm. Under
this tort, LCP's conduct must be evaluated in relation to the time
when the negligent mispresentations were made. Cf. Kelly v.
Gwinnell,
96 N.J. 538, 548 (1984) ("[A] host who serves liquor to
an adult social guest, knowing both that the guest is intoxicated
and will thereafter be operating a motor vehicle, is liable for
injuries inflicted on a third party as a result . . . ."). At that
time, LCP was in possession of the dog.
LCP has provided no Pennsylvania authority suggesting immunity
in these circumstances. On the other hand, a plain reading of the
statute establishes LCP's exposure to liability. In short,
transfer of an animal is an act relating to the custody or control
of that animal. If misrepresentations have been made in that
regard by public employees, acting within the scope of their
employment, and those misrepresentations reasonably induce another
to accept the transfer, there is no immunity when the
misrepresentations are a proximate cause of injury caused by the
animal. Thus, neither comity nor choice-of-law is implicated on
this issue.See footnote 3
LCP's alternative argument is that it should at least receive
the benefit of the PSTCA's $500,000 limitation on damages. 42 Pa.
Cons. Stat. Ann. § 8553. On this issue, the policies of the
respective states conflict. A plaintiff's compensatory damages
against public entities are unlimited under the New Jersey Tort
Claims Act, N.J.S.A. 59:1-1 to 12-3.
In Nevada v. Hall,
440 U.S. 410,
99 S. Ct. 1182,
59 L. Ed.2d 416 (1979), an automobile accident case arising in California, in
which the state of Nevada was a defendant, the Court established
the principle that under the federal constitution a state is not
entitled to immunity from suit in the courts of another state. 440
U.S. at 414, 426-27, 99 S. Ct. at 1185, 1191, 59 L. Ed.
2d at 421,
428-29. It also held that the forum state was not obliged to
accept a limitation on monetary damages created by the legislature
of the foreign state.
In this Nation each sovereign governs
only with the consent of the governed. The
people of Nevada have consented to a system in
which their State is subject only to limited
liability in tort. But the people of
California, who have no voice in Nevada's
decision, have adopted a different system.
Each of these decisions is equally entitled to
our respect.
Concerned about the implications of its decision on our
federal system, the Court added this advice:
It may be wise policy, as a matter of
harmonious interstate relations, for States to
accord each other immunity or to respect any
established limits on liability. They are
free to do so. But if a federal court were to
hold, by inference from the structure of our
Constitution and nothing else, that California
is not free in this case to enforce its policy
of full compensation, that holding would
constitute the real intrusion on the
sovereignty of the States--and the power of
the people--in our Union.
Acceptance of the $500,000 limitation in the circumstances of
this case would substantially reduce the recovery by each
plaintiff. Under section 8553(b), multiple claimants injured in
the same transaction or series of transactions must share the
$500,000. City of Philadelphia v. Nationwide Ins. Co.,
498 A.2d 462, 467-68 (Pa. Commw. Ct. 1985).
Requiring a person injured by the negligence of a public
entity to accept less than full compensation is contrary to the
legislative policy of this state. The subject was addressed in
Chapter 2 of the Report of the Attorney General's Task Force on
Sovereign Immunity (1972), which "'accompanied the [Tort Claims]
Act during its consideration by the Legislature [and] ha[s] the
precedential weight and value of legislative history.'" Thorpe v.
Cohen,
258 N.J. Super. 523, 528-29 (App. Div. 1992) (citation
omitted). The Report states:
There should be no monetary limits upon
recovery against a public entity.
There are several jurisdictions which
provide monetary limits of recovery; in effect
they establish a ceiling above which no
claimant may recover. This approach has been
rejected because it is believed that the
establishment of monetary limits is an
arbitrary and unjust way to limit recovery
against a public entity. By precluding
various types of damage recovery and by
foreclosing double recovery through collateral
sources, it is suggested that sufficient
protection for the public treasury is being
provided on a rational and reasonable basis.
In fact, it has been estimated by an official
in California that at least 50 per cent of the
total damage awards in that State are for pain
and suffering--an estimate which clearly
supports the approach contained in this
report. If there is concern with the
potential large one-shot judgment, then it is
suggested that an appropriate insurance policy
providing for catastrophe coverage be
obtained.
[Report of the Attorney General's Task Force
on Sovereign Immunity (1972) in Margolis and
Novack, Claims Against Public Entities R-9
(1999) (emphasis added).]
Given this legislative history, and mindful that under New
Jersey's choice-of-law principles "the State whose substantive law
controls also governs the question of damages," Marinelli v. K-Mart
Corp.,
318 N.J. Super. 554, 567-68 (App. Div.) certif. granted,
____ N.J. ____ (1999), we reject LCP's claim to the $500,000
limitation contained in the Pennsylvania statute.
In McDonnell v. Illinois,
319 N.J. Super. 324 (App. Div.),
certif. granted, ____ N.J. ____ (1999), we held that Illinois,
which had established an office in New Jersey, was subject to the
New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, for
discriminatory acts committed here. In doing so, we rejected
Illinois' claim to sovereign immunity. We have no lesser interest
in the enforcement of our common law. If the right to full
compensation for tortious conduct is to be limited in cases against
the public entities of other states, that policy determination
should be made by our Legislature.
C. THE ADMISSION OF THE OPINION EVIDENCE
LCP argues that the trial court erred in permitting into
evidence those portions of the Unusual Activity Reports which
contained opinions of its officers. The specific references were
to comments that the dog was a "liability" or had "irreversible
medical problems."
These opinions were not admissible to prove the truth of the
matters asserted. Liptak v. Rite Aid, Inc.,
289 N.J. Super. 199,
221-22 (App. Div. 1996). But they were relevant to the fraud
count. Judson v. Peoples Bank & Trust Co.,
25 N.J. 17, 26 (1957)
(indicating that expressions of opinion given by one who has
secured the confidence of the victim or holds himself out as having
special knowledge of the matter may support a claim of fraud).
Here, the officers indicated that the dog was friendly towards
people, withholding the contrary views expressed in their reports.
The opinions were also relevant to the negligent misrepresentation
claim, since having those views was inconsistent with the decision
to give the dog away instead of killing him, and with the nature of
the officers' communications to plaintiffs.
When evidence is admissible for one purpose but is not
admissible for another purpose, "the judge, upon request, shall
restrict the evidence to its proper scope and shall instruct the
jury accordingly . . . ." N.J.R.E. 105 (emphasis added). Although
the judge had indicated that he would give a limiting instruction,
he did not. However, no limiting instruction was submitted by LCP
and no objection was taken to the failure of the judge to give a
limiting instruction.
The failure to give a limiting charge may be recognized as
plain error only if it had the clear capacity of producing an
unjust result. R. 2:10-2. Officer Geib explained to the jury that
he had no basis for his comment that the dog had "irreversible
medical problems." And, indeed, it was quite apparent that Geib
was not expressing a medical opinion and that, as he said, the
comment simply reflected his anger at having been bitten again.
Himmelsbach was permitted to explain that he had used the word
"liability" only to mean that the dog was of no use to the prison
and could no longer be housed in the kennels. But of overarching
importance is the simple fact that the evidence of Diesel's
viciousness was overwhelmingly established by the uncontested
evidence that he had bitten his handlers on five separate
occasions, two of which were only days before the transfer took
place. In these circumstances, we cannot say that the introduction
of the opinions without a limiting instruction had the clear
capacity to produce an unjust result.
The jury found Guard Dogs liable to Abbott under the dog-bite statute, N.J.S.A. 4:19-16,See footnote 4 and under the common law for negligence. Guard Dogs contends that it was entitled to a directed verdict and judgment n.o.v. because of Abbott's stipulated status as an independent contractor. We are called upon to determine the duty of a dog owner to an independent contractor who is bitten while carrying out his contractual obligation to care for the dog on the owner's property.
Generally, a landowner must use reasonable care to protect independent contractors against "known or reasonably discoverable dangers." 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.) certif. denied, 158 N.J. 685 (1999). But that duty does not extend to protecting the independent contractor "from the very hazard created by doing the contract work." Sanna v. National Sponge Co., 209 N.J. Super. 60, 67 ( App. Div. 1986). The landowner is not obliged to eliminate "operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform." Ibid.
Guard Dog argues that since Abbott had been hired as an independent contractor to care for and train the dog, and since any dog may bite, there should be no liability because the hazard of being bitten was an obvious operational risk of the contract. The problem with that syllogism is that it is based on a mistaken concept of the hazard presented by this dog. This case does not involve the ordinary risk that a dog may bite; it involves the hazard presented by a vicious dog whose nature has not been disclosed. In that context, the analysis becomes more complicated.
In Emmons v. Stevane, 77 N.J.L. 570 (E. & A. 1908), the Court considered the liability of a dog owner to an independent contractor who had agreed to board the dog and was bitten without warning when she placed her hand on the dog's head. The owner had told plaintiff the dog was gentle even though he knew the dog was vicious. The Court held plaintiff was entitled to recover damages from the owner because "the owner of an animal having vicious habits . . . is bound to disclose them (if known to him) to a bailee. Such is the case when a person leaves his horse with a blacksmith to be shod." Id. at 573. The Court, however, also indicated an exception to that rule: proof that the "bailee was chargeable with knowledge of [the animal's] true disposition" would relieve the owner of liability. Id. at 574.
Emmons, decided under the common law doctrine of absolute liability, is not directly implicated here because there is no evidence that Guard Dogs knew or "had reason to know of the dog's abnormally dangerous characteristics." DeRobertis, supra, 94 N.J. at 153. Guard Dogs, like Abbott, was misled by LCP. However, the case is significant because it rejects the notion that an independent contractor who agrees to care for a domestic animal assumes the risk of being attacked when the animal's vicious nature has been concealed.
Since common law absolute liability is not involved here, we turn to plaintiff's cause of action under the dog-bite statute and the contention that primary assumption of the risk bars recovery. To establish liability under the statute, a plaintiff must prove that defendant was the dog owner, that he was bitten, and that the bite occurred while he was in a public place, or lawfully in a private place, including the property of the owner. Id. at 151. The only defense previously recognized is that plaintiff unreasonably and voluntarily exposed himself to a known risk. Pingaro v. Rossi, 322 N.J. Super. 494, 505 (App. Div. 1999).
Guard Dogs recognizes the inapplicability of that defense, since Abbott was bitten while he was picking up tools a substantial distance from the kennel and was completely unaware of the grave risk presented by the dog's presence in the warehouse, but it contends that Abbott's independent contractor status bars recovery since he knew that any dog might bite.
The reliance of Guard Dogs on Abbott's status has some merit. In ordinary circumstances, when a dog is delivered for care to an independent contractor the owner is entitled to rely on the doctrine of primary assumption of the risk. Cf. Del Tufo v. Township of Old Bridge, 147 N.J. 90, 112 (1996). Thus, for example, in Nelson v. Hall, 211 Cal. Rptr. 668 (Cal. Ct. App. 1985), the court held under its dog-bite statute that "a dog owner who does no more than turn his or her dog over to a qualified veterinarian for medical treatment should not be held strictly liable when the dog bites [the] veterinarian . . . ." Id. at 673. The court explained that liability would not be imposed because the veterinarian is "aware of the risk that any dog, regardless of its previous nature, might bite while being treated, . . . determines the method of treatment and handling of the dog . . . and is in the best position to take necessary precautions . . . ." Ibid. But the court also said
[I]f a dog owner purposefully or negligently conceals a particular known hazard from a veterinarian, he or she would not be relieved of liability, for this would expose the injured person to an unknown risk.
The analysis of the Nelson court is sound. And since a
veterinarian has all the characteristics of an independent
contractor, Nelson should apply to other independent contractors,
such as Abbott, who agree to care for a dog. But under Nelson,
Abbott's recovery would be barred because of the lack of evidence
that the unusual hazard presented by Diesel was known to Guard
Dogs. When 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, supra, 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.
Guard Dogs, however, cannot avoid liability because the
judgment was also based on common law negligence. Without
objection, the judge charged that Abbott could prevail on proof
that Guard Dogs was negligent in failing to ascertain the dog's
propensity for violence and in providing an appropriate warning to
Abbott. Although unstated during trial, the premise for the charge
was that Guard Dogs had a duty to its independent contractor to
make a reasonable investigation of the dog's history before turning
the dog over to him.
Ultimately, whether a duty exists is a matter of fairness,
depending on a consideration of the "relationship of the parties,
the nature of the risk--that is, its foreseeability and severity-
and the impact the imposition of a duty would have on public
policy." Dunphy v. Gregor, supra, 136 N.J. at 108.
Those considerations support the imposition of the duty of
reasonable inquiry in the peculiar circumstances of this case.
Although Abbott was an independent contractor, Guard Dogs held the
dominant position and made the decision to accept the dog. Abbott
reasonably relied on his employer's judgment respecting the
amenability of the dog for guard work. Since Guard Dogs knew the
dog was trained to attack humans, had bitten his trainer on one
occasion, and was so aggressive toward other dogs that the prison
had determined him to be undesirable after some fourteen months of
training and use, the imposition of the duty imposed by the trial
court appears reasonable. It gives force in this context to the
landowner's duty to protect an independent contractor against
dangers reasonably discoverable by the landowner. And it is
particularly appropriate since the special hazards presented by
this dog were neither "obvious [nor] visible." Sanna, supra, 209
N.J. Super. at 67.
Guard Dogs takes issue with the judge's charge on Abbott's
contributory negligence and his failure to charge assumption of the
risk. These issues need not be addressed because there was no
evidence to support either defense. Although Abbott assumed the
risk that any dog might bite, he did not assume the risk of working
with a vicious dog, and his mere presence at the warehouse to pick
up his tools did not warrant a charge on contributory negligence.
Therefore, the alleged errors could not have prejudiced the defense.
Guard Dogs also argues that it was entitled to judgment n.o.v.
or a new trial because the liability verdict was against the weight
of the evidence. More particularly, it claims it was not negligent
because its principal, Mr. Reynolds, asked for the dog's history
and was misled. The jury rejected the contention that Reynolds was
justified in relying on the information he received from Geib, a
prison guard and the dog's trainer. Given the dog's history, as
related by Geib, a reasonable jury could well have concluded that
further inquiry was required--that, for example, the accuracy of
Geib's information should have been confirmed with superior
authorities within the prison. Therefore, the judge correctly
denied both motions. See Dolson v. Anastasia,
55 N.J. 2, 5-6
(1969), R. 4:49-1(a).
Both defendants unsuccessfully moved for a new trial on damages on the ground that the damage verdicts were excessive.
The trial court's ruling cannot be reversed on appeal "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Caldwell v. Haynes, 136 N.J. 422, 432 (1994). As in the trial court, we "must consider the evidence in the light most favorable to the prevailing part[ies]." Ibid. With those principles in mind, we turn first to Abbott's damage award.
The dog did not simply bite Abbott's arm and let go; it chewed on his arm, biting down with increasing force, causing Abbott to be covered with blood and to believe that he might die.
The bite damaged about 30" of Abbott's left arm muscles, and 15" of those muscles had to be removed. Abbott spent fourteen days in the hospital and was subjected to four operations. At times, his treatment caused excruciating pain. He has extensive scars, permanent weakness in his left arm and hand, permanent diminished sensation in several fingers, and nerve and muscle damage. His arm "really throbs and hurts in the cold weather" or "after an hour's work." He is self-conscious about his deformity. The experience caused post-traumatic stress disorder, as indicated by his recurring nightmares, depression, alcohol dependency, and a sixty pound weight gain.
Glen Curt Reynolds suffered a sustained and savage attack that resulted in numerous injuries. He spent six days in the hospital and was subjected to three surgeries, which included treatment of severed arteries and reattachment of part of his triceps muscle. He has two scars on his right arm, one that is three and a half inches long, and another that is two inches long. He has a scar that runs from his armpit to his elbow, and a four-inch scar on his left leg. He also has a puncture scar under his right arm and two puncture scars on his right ankle. He lost muscle tissue, and he suffers from some loss of function and decreased sensation in the right arm. From time to time, he continues to experience pain in his elbow, shoulder, and arm. He has difficulty sleeping, experiences nightmares, feels irritable, becomes highly emotional, and is fearful of dogs, all aspects of post-traumatic stress disorder.
Dionna Reynolds testified that the attack on her husband had dramatically affected their relationship. He has become irritable, insensitive to her feelings and needs, and less helpful with household chores. In accordance with a recommendation from her husband's psychologist, they no longer sleep in the same bed.
A jury's assessment of damages may not be set aside unless clearly against the weight of the evidence. Ibid. Moreover, the verdict must stand unless it shocks the judicial conscience. Ibid.
Although the award to Dionna Reynolds may have been generous, it is not so high as to shock the conscience. The severe physical and emotional injuries suffered by Glen Curt Reynolds and Martin Abbott provided adequate support for their damage awards.
Abbott's first point is that the trial court erred in refusing to enter judgment against Guard Dogs for the full amount of his damages despite the jury's determination that Guard Dog's share of the fault was only 15%. He claims entitlement to that result under the dog-bite statute, which he argues overrides the Comparative Negligence Act, N.J.S.A. 2A:15-5.2. This point is clearly without merit. R. 2:11-3(e)(1)(E). Moreover, as we have explained above, Guard Dogs was not liable to Abbott under the dog-bite statute; its liability was based on common law negligence.
Abbott's second point is that he was entitled to recover from Guard Dogs his attorney's fees, expenses, and interest under the offer-of-judgment rule, R. 4:58. Before trial, Abbott had offered to settle with Guard Dogs for $500,000. The offer was refused and Abbott obtained a verdict against Guard Dogs for $225,000. The rule provides, in pertinent part, "In an action for negligence or unliquidated damages, however, no attorney's fee shall be allowed to the offeror unless the amount of the recovery is in excess of 120" of the offer." R. 4:58-2. Since Abbott recovered less than he had demanded, the rule provides no relief.
Affirmed.
Footnote: 1Plaintiffs dismissed their negligence claims against the
individual defendants employed by LCP. Their fraud claims against
those individuals were rejected by the jury. Abbott dismissed his
claim against Reynolds. Thus, the only parties with whom we are
concerned are LCP, Guard Dogs, and the three plaintiffs.
Footnote: 2We note that LCP was not entitled to argue a lack of duty on
appeal since the issue was never raised below. Nieder v. Royal
Indem. Ins. Co.,
62 N.J. 229, 234 (1973). Furthermore, LCP
conceded in the trial court that plaintiffs had presented adequate
proofs to support consideration of this claim by the jury. It
cannot disavow that concession and argue to the contrary on appeal.
Brett v. Great Am. Recreation, Inc.,
144 N.J. 479, 503 (1996);
First Am. Title Ins. Co. v. Vision Mortgage Corp,
298 N.J. Super. 138, 143 (App. Div. 1997). Finally, the judge's charge was
substantially in accord with the principles of section 311 and LCP
expressed no objection.
Footnote: 3If we understood the Pennsylvania statute to provide
immunity, we would reject its application here because our
governmental policies of deterring tortious behavior within our
borders and providing full protection to citizens negligently
injured far outweigh Pennsylvania's interest in protecting its
public purse. Cf. Gantes v. Kason Corp.,
145 N.J. 478 (1996).
Footnote: 4This statute provides:
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.
For the purpose of this section, a person
is lawfully upon the private property of such
owner when he 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
is on such property upon the invitation,
express or implied, of the owner thereof.