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Mayer v. Mascarehas

August 4, 2009

PATRICIA MAYER, PLAINTIFF,
v.
CARLOS MASCAREHAS, DEFENDANT.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

Plaintiff Patricia Mayer brings this action against Defendant Carlos Mascarehas to recover for injuries she sustained when Defendant's dog bit her on November 28, 2006. Currently before the Court is Plaintiff's motion for partial summary judgment on the issue of Defendant's liability. For the following reasons, Plaintiff's motion is granted.

I. BACKGROUND

On November 28, 2006, Defendant's roommate, Rob Summers, invited Plaintiff to Defendant's house to watch a movie. (Pl.'s Statement of Undisputed Facts [hereinafter "Pl.'s SOF"] ¶ 3; Def.'s Resp. to Pl.'s Statement of Undisputed Facts [hereinafter "Def.'s Resp."] ¶ 3.) When Mayer and Summers arrived at the house, Summers introduced her to Defendant. (Pl.'s SOF ¶ 6; Def.'s Resp. ¶ 6.) Defendant did nothing to indicate that Plaintiff should not be on the premises nor to suggest that she was not welcome on his property. (Pl.'s SOF ¶ 6; Def.'s Resp. ¶ 6.)

Shortly after Mayer and Summers entered the residence, Defendant's English Mastiff neared Plaintiff. (Pl.'s SOF ¶¶ 2, 7; Def.'s Resp. ¶¶ 2, 7.) Plaintiff approached the dog to pet it. (Pl.'s SOF ¶ 8; Def.'s Resp. ¶ 8.) According to Plaintiff, while she was petting the dog, it jumped up and bit her nose. (Pl.'s SOF ¶¶ 9, 11.) According to Defendant, who did not see the incident, Plaintiff told Defendant that the dog bit her after she had grabbed and shaken the dog's face while saying "he's so cute." (Pl.'s Ex. 5 [Pl.'s Interrogs.] at No. 8 & Ex. 6 [Def.'s Resps. to Pl.'s Interrogs.] at No. 8; Def.'s Ex. A [Excerpts from Mascaheras Dep.] at 13-14.)

It is undisputed that this was the first time that Plaintiff had contact with Defendant's dog. (Pl.'s SOF ¶¶ 4-5; Def.'s Resp. ¶¶ 4-5.) It is also undisputed that no one warned Plaintiff that the dog had a tendency to bite. (Pl.'s SOF ¶ 12(e); Def.'s Resp. ¶ 12(e).)

Plaintiff's Complaint asserted claims of strict liability, pursuant to New Jersey's "dog bite" statute, and negligence and sought damages for the injuries Plaintiff sustained as a result of the dog bite. Plaintiff has dropped her negligence claim and now moves for summary judgment on the issue of liability on her statutory claim. (Pl.'s Mot. for Partial Summ. J. ¶ 3.) The parties have stipulated that this case is governed by New Jersey law.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "Where the record taken as a whole would not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted). In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000).

III. DISCUSSION

New Jersey's dog bite statute states:

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.

N.J. STAT. ANN. § 4:19-16 (West 2009).

Plaintiff must prove three elements to establish liability under the statute: (1) that Defendant owns the dog; (2) that the dog bit Plaintiff; and (3) that the bite occurred while Plaintiff was lawfully on Defendant's property. DeRobertis ex. rel. DeRobertis v. McCarthy, 462 A.2d 1260, 1264 (N.J. 1983). The statute specifies that "a person is lawfully upon the property of such owner . . . when he is on such property upon the invitation, express or implied, of the owner thereof." N.J. STAT. ANN. ยง 4:19-16. In this context, the word "invitation" should be ...


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