June 17, 2009 

Written By Attorneys John M. Clark and Ashley Lauren Farnschlader

Note: This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.

In a decision issued on April 22, 2009, the Superior Court of New Jersey, Law Division, broadened the imposition of strict liability upon dog owners under New Jersey's dog bite statute. With this opinion of first impression in New Jersey, a Plaintiff may now recover damages from a dog owner without a showing of broken skin. Previously, the law required physical evidence to establish that a bite had in fact occurred.

In DeVivo v. Anderson, the Plaintiff was injured when the Defendant's German Shepherd bit her arm. Although the Plaintiff's skin was not punctured by the dog's bite, she did sustain injuries to her shoulder. The Defendant's dog was not leashed at the time the bite occurred.

Under N.J.S.A. 4:19-16, more commonly known as the "dog bite statute," strict liability is imposed upon an owner whose dog bites another without a finding of proof of the owner's knowledge of the dog's vicious propensities. In order to recover under the statute, a Plaintiff must prove the following: (1) the Defendant is the owner of the dog, (2) the dog bit the Plaintiff, and, (3) the bite occurred while the Plaintiff was either in a public place or lawfully in a private place.

The issue addressed by the Superior Court in DeVivo was whether the Plaintiff's injuries satisfied the second prong of the statute; namely, whether there must be broken skin or evidence of injury to the Plaintiff's skin in order to establish that the bite occurred. The Plaintiff argued that although the skin on her arm was not broken as a result of the bite, her shoulder was injured and there was documented evidence of swelling at the alleged bite location. The Plaintiff's injuries were supported by a medical expert and a witness who observed the dog bite the Plaintiff's arm.

The Defendant argued that because the skin on the Plaintiff's arm remained intact, no evidence existed that the Defendant's dog had bitten the Plaintiff. Therefore, the Plaintiff had failed to meet her burden of proof under the statute.

In deciding whether the Plaintiff had established the occurrence of a dog bite, the Court looked to the legislature's intent in adopting N.J.S.A. 4:19-16. The Court found that the legislature contemplated that all dogs have a potential to bite and that dog owners should compensate those innocently sustaining an injury from the dog as the social price of dog ownership. The Court also noted that there is no explicit requirement in N.J.S.A. 4:19-16 that the injuries from the dog bite must result in broken skin to be actionable under the statute.

The Superior Court's opinion in DeVivo v. Anderson has truly taken a "bite" out the defenses available to New Jersey's dog owners, limiting their available defenses to allegations of animal-related injuries solely to medical testimony in contravention to claims of injury. NLdH will continue to monitor this matter for any appellate activity.