                                NOT FOR PUBLICATION WITHOUT THE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-3430-18T4

BONAY GOLDHAGEN,

          Plaintiff-Appellant,

v.

SUSAN PASMOWITZ,

         Defendant-Respondent,

and

BERNICE BROOKS,

     Defendant.
_______________________

                   Submitted March 30, 2020 – Decided June 8, 2020

                   Before Judges Sumners and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Docket No. L-1240-17.

                   Kane & Silverman, PC, attorneys for appellant (Joseph
                   Monaco, of counsel and on the brief).
            Sweeney & Sheehan, PC, attorneys for respondent
            (Andrew Siegeltuch, of counsel; Neal A. Thakkar, on
            the brief).

PER CURIAM

      In this negligence action arising from a dog bite at a dog hotel and

grooming salon ("the dog hotel"), plaintiff Bonay Goldhagen appeals the Law

Division's order granting defendants Susan Pasmowitz and Bernice Brooks's1

motion for summary judgment and denying her cross-motion for summary

judgment on liability. We affirm.

      We review a ruling on a summary judgment motion de novo, applying the

same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016)). Thus, we consider, as the motion judge

did, "whether 'the competent evidential materials presented, when viewed in the

light most favorable to the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the non-moving

party.'" Holmes v. Jersey City Police Dep't, 449 N.J. Super. 600, 602-03 (App.

Div. 2017) (citation omitted) (quoting Brill v. Guardian Life Ins. Co. of Am.,



1
   Bernice Brooks was dismissed as a defendant based upon the parties'
agreement.
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                                       2
142 N.J. 520, 540 (1995)). "If there is no genuine issue of material fact, we

must then 'decide whether the trial court correctly interpreted the law.'"

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J.

Super. 486, 494 (App. Div. 2007)). We review issues of law de novo and accord

no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213

N.J. 463, 478 (2013).

        The record before the trial court on defendant's summary judgment motion

when viewed in the light most favorable to plaintiff, reveals the following. In

July 2015, defendant boarded her two dogs – Louie, an approximately 120-

pound Rottweiler mix, and Otis, a smaller dog – at a dog hotel in Atlantic City.

Plaintiff was employed as a dog groomer and kennel assistant at the dog hotel.

She had twenty years' experience in the business and was fully aware that dogs

bite.

        Defendant informed plaintiff that Louie previously bit her son. Defendant

claimed when she advised plaintiff that Louie was a very strong dog, not to trust

him, and that he was going to throw his weight around, plaintiff conveyed a

dismissive response that she knew how to handle dogs. Defendant noted on the

kennel's intake form Louie must "eat separately from Otis" and be "muzzle[d]


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                                        3
for nail clippings." Plaintiff, however, was not made aware that Louie had bitten

defendant, requiring defendant to receive about thirty stitches, four years earlier

when defendant removed a tick from his ear.

      On the first day of the dogs' boarding, plaintiff was feeding the two dogs

together when she was bitten by Louie. At her deposition, plaintiff described

the incident as follows:

            I had to give them their pills, so I had gone into the
            kennel and put the bowls down, put the pill in each
            bowl. First[,] I put the one in Louie’s. Then I walked
            over to the little dog[], Otis, put one in Otis’s, sat down,
            looked at Louie, turned around, looked at Otis just to
            make sure they were getting their noses into their food,
            and I was sitting down next to Otis, and I was looking
            at them. When I turned around to look at Louie, he was
            in my face biting my lip.

Plaintiff filed suit, and following completion of discovery, defendant moved for

summary judgment dismissal of the action and plaintiff crossed-moved for

partial summary judgment on liability. The motion judge reserved decision

following oral argument.

      A month later, the judge entered an order and oral decision granting

defendant summary judgment and denying plaintiff partial summary judgment.

The judge relied primarily on the principles enunciated in Reynolds v. Lancaster

Cty. Prison, where we limited the absolute liability of dog owners under N.J.S.A.


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                                         4
4:19-16, by holding an independent contractor who agrees to care for a dog

could not assert a claim against a dog owner for a dog bite unless the dog owner

"purposefully or negligently conceal[ed] a particular known hazard from the"

independent contractor. 325 N.J. Super. 298, 323-44 (App. Div. 1999) (quoting

Nelson v. Hall, 211 Cal. Rptr. 668, 673 n.4 (1985)).

      The judge reasoned:

            In this matter[,] the plaintiff claims the defendant
            withheld or failed to disclose the specific fact that
            defendant herself was previously bit by Louie in the
            face requiring 30 stitches to close the wound. Based
            upon defendant withholding that specific fact, aside
            from the fact that plaintiff was an experienced dog
            handler, knew dogs sometimes bite, knew the dog bit a
            child, had a history of nipping, needed muzzling for nail
            clipping, and saw co-workers bit by dogs, was the one
            piece of evidence sufficient to create a genuine issue of
            material fact to defeat defendant’s motion. This [c]ourt
            does not find that is sufficient. The [c]ourt agrees with
            the defense['s] position, and the [c]ourt finds
            specifically that the plaintiff possessed adequate
            information from the defendant regarding Louie’s
            history. The [c]ourt finds the plaintiff had sufficient
            knowledge based upon the fact that Louie bit a child
            and that fact was revealed specifically by the defendant
            to the plaintiff.

            This [c]ourt finds that the quality or consequences . . .
            of the dog bite, is not relevant or a material inquiry in
            this instance to defeat the summary judgment motion
            filed by the defendant. Knowing the dog previously bit
            a child in this instance and the fact that that was
            specifically told to the plaintiff by defendant, that fact

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                                        5
            was revealed and is enough in this [c]ourt’s opinion to
            have the defendants prevail.          In fact, plaintiff
            disregarded the specific instruction to feed the dog
            separately and was, in fact, bitten when both dogs were
            being fed at the same time when she was sitting with
            Otis.

            This [c]ourt finds plaintiff was a long-time professional
            in this industry, in this field, to know and appreciate
            this dog’s history and to take the necessary
            precautionary measures to safely address the needs of a
            dog, as well as her own, while working at [the pet
            hotel]. This [c]ourt finds that the facts are very similar
            to those in the Reynolds case.

            Based upon this record the [c]ourt finds there is no
            genuine issue as to any material fact challenge, and the
            [c]ourt finds that the defendant . . . is entitled to
            summary judgment as a matter of law. The [c]ourt
            grants the defendant’s motion for summary judgment,
            dismissing the case with prejudice. This [c]ourt
            dismisses the plaintiff’s cross motion.

      Plaintiff appeals, arguing her assumption of risk and comparative

negligence in caring for defendant's dogs does not apply under N.J.S.A. 4:19-16

and she was entitled to partial summary judgment on liability against defendant

under the statute.

      N.J.S.A. 4:19-16 states, in relevant part:

            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

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                                        6
             viciousness of such dog or the owner's knowledge of
             such viciousness.

"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 pub lic 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, recognizing 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.

             [325 N.J. Super. at 324.]




                                                                              A-3430-18T4
                                          7
      The principles articulated in Reynolds apply here.         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. We 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)). We found persuasive the decision in Nelson v. Hall, 211

Cal. Rptr. 668, 673 (1985), in which the California Court of Appeal held 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. We held that "a

veterinarian has all 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.

      Like the dog handler in Reynolds, plaintiff was an independent contractor

who "agree[d] to care for a dog." Ibid. She was "aware of the risk that any dog,

regardless of its previous nature, might bite while being" cared for. Ibid.

(quoting Nelson, 211 Cal. Rptr. at 715). And as the motion judge determined,

even though defendant did not mention Louie had bit her, there was no dispute


                                                                          A-3430-18T4
                                        8
plaintiff was made aware of Louie's aggressive nature; he had bitten defendant's

son; he had to be muzzled during nail clippings; and he should not be fed with

Otis. The latter being the precise situation when plaintiff was bitten.

       Accordingly, we are satisfied the motion judge correctly concluded, based

on the evidence presented, a reasonable factfinder could only reach one

conclusion: that plaintiff had sufficient warning Louie might bite her while she

was caring for him. The judge correctly found there was no genuine issue of

material fact, thus, as a matter of law, defendant was entitled to summary

judgment dismissal and plaintiff was not entitled to summary judgment for

liability.

       Any of plaintiff's arguments we did not specifically address lack sufficient

merit to warrant discussion. R. 2:11-3(e)(1)(E).

       Affirmed.




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