SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1829-16T4

ANGELA CARPENTIERO,

Plaintiff-Appellant,

v.

THE ESTATE OF JANE POCKNETT,

Defendant-Respondent.

______________________________

Argued May 9, 2018 – Decided June 28, 2018

Before Judges Koblitz and Manahan.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. 

L-1369-14.

J. Silvio Mascolo argued the cause for 

appellant (Rebenack, Aronow & Mascolo, LLP, 

attorneys; J. Silvio Mascolo, of counsel and 

on the briefs).

David J. Dering argued the cause for 

respondent (Leary, Bride, Tinker & Moran, PC, 

attorneys; David J. Dering, of counsel and on 

the brief).

PER CURIAM

Plaintiff Angela Carpentiero appeals from an order granting 

partial summary judgment on her strict liability claim and from 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1829-16T4

an order dismissing her common law negligence claim, which resulted 

in the dismissal of her complaint. Upon review of the record and 

in consideration of applicable law, we affirm.

On March 16, 2012, plaintiff suffered a dog bite to her face 

by a dog owned by Jane Pocknett.1 At the time, plaintiff was 

working as a part-time groomer at Katie's Pet Depot and was bathing 

the dog. Thereafter, plaintiff filed a two-count complaint. Count 

one of the complaint was based on common law negligence. Count 

two was based on strict liability pursuant to N.J.S.A. 4:19-16.

During her deposition, plaintiff testified that she was an 

employee of Katie's Pet Depot rather than an independent contractor. 

Plaintiff also testified that had she known the dog was old and 

had arthritis, she would have muzzled the dog prior to grooming.

At the conclusion of discovery, defendant filed a motion for 

summary judgment. Following oral argument, the judge granted the 

motion on the strict liability count and denied the motion on the 

common law negligence count. In granting the motion, the judge 

found plaintiff to be an independent contractor. As such, the 

judge held that status qualified as an exception to the imposition 

of strict liability pursuant to our holding in Reynolds v. 

Lancaster County Prison, 325 N.J. Super. 298 (App. Div. 1999).

 

1 Jane Pocknett died before plaintiff filed her complaint and her 

estate was named as a defendant.
3 A-1829-16T4

To the contrary, the judge found common law negligence to be 

an issue which should be determined by the jury:

In this matter, plaintiff has asserted 

that the dogs [sic] physical condition was 

such that, had she been made aware of it, she 

would have muzzled the dog to prevent its 

response to the grooming procedures that 

triggered the dog to bite her. The court on 

summary judgment is not in a position, on this 

record to determine whether the position 

asserted by plaintiff is credible or not. 

Credibility determinations are the sole 

province of the jury.

On September 30, 2016, the judge entered an order 

memorializing the decision. Neither party filed a motion seeking 

reconsideration of the order.

On November 28, 2016, during a pre-trial conference before 

the judge assigned to the trial of the case, the judge sua sponte 

dismissed the common law negligence count. In reaching that 

determination, the judge held the existence of a duty is one of 

law.

Juries don’t' decide whether she should or 

shouldn’t have done this; juries decide 

whether or not they breached the duty, by not 

doing something that they were required to do, 

or doing something they were not supposed to 

do. So I decide the duty, or the appeals 

court.

. . . . 

Under the circumstances of this case, I'm 

satisfied that the defendant-homeowner did not 

violate any duty. The only duty that would 
4 A-1829-16T4

have made a difference in this particular case, 

based on the evidence that is achievable, is 

the dog's age and the claim, unsubstantiated 

claim, that somehow the age of the dog is 

sufficiently related to propensities to be 

dangerous, bite, or otherwise act out to the 

detriment of a groomer or veterinarian or 

somebody else; that there was a duty that 

would be imposed upon the owner to disclose 

that fact. 

I accept, as I must, for the purposes of 

this context, the plaintiff's statement that, 

had she known that, that she would have 

muzzled the dog; and, therefore, prevented the 

injury from occurring. So I'm not altogether 

unconvinced that there's a proximate cause 

link here.

But I'm still satisfied that the 

plaintiff – the defendant in this case did not 

have an affirmative duty which was violated; 

that is, they had no duty to disclose 

information about the age of the dog.

The other issues about the dog's medical 

or physical condition are pure speculation; 

that it had bad hips or back or was otherwise 

infirm, and that contributed to the happening 

of this incident. As I understand it, there's 

no proffer that the plaintiff was an expert, 

had any medical training, was told anything 

about the medical condition about the dog, nor 

did she see any x-rays or diagnostic tests or 

medical or veterinary reports that would 

indicate that these things were so, after the 

fact, even to demonstrate that that was 

potentially a cause of the way this dog acted 

out.

The judge entered an order dismissing the complaint. On 

appeal, plaintiff raises the following points:
5 A-1829-16T4

POINT I

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S 

MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF 

STRICT LIABILITY UNDER THE DOG BITE STATUTE 

AS THE ONLY CASE RELIED UPON BY DFENDANT, 

REYNOLDS [], IS DISTINGUISHABLE FROM THE FACTS 

OF THE PRESENT CASE.

A. THERE IS A GENUINE ISSUE OF MATERIAL 

FACT REGARDING WHETHER OR NOT 

PLAINTIFF WAS AN EMPLOYEE OR 

INDEPENDENT CONTRACTOR AT THE TIME OF 

THE ACCIDENT.

B. THERE IS A GENUINE ISSUE OF MATERIAL 

FACT AS TO WHETHER THE NATURE OF 

PLAINTIFF'S JOB FALLS WITHIN THE 

EXCEPTION TO STRICT LIABILITY UNDER 

THE DOG BITE STATUE AS CREATED IN 

REYNOLDS [].

POINT II

THE TRIAL COURT ERRED IN DISMISSING 

PLAINTIFF'S COMPLAINT AS IT RELATES TO COMMON 

LAW NEGLIGENCE.

A. [THE SECOND JUDGE] ERRED IN DISMISSING 

PLAINTIFF'S COMMON LAW NEGLIGENCE 

COUNT IN THE COMPLAINT AS [THE FIRST 

JUDGE] HAD PREVIOUSLY HELD THAT 

DEFENDANT'S MOTION FOR SUMMARY 

JUDGMENT ON PLAINTIFF'S COMMON LAW 

NEGLIGENCE COUNT WAS DENIED.

B. [THE SECOND JUDGE] ERRED IN DISMISSING 

PLAINTIFF'S COMMON LAW NEGLIGENCE 

COUNT IN THE COMPLAINT AS THE MATTER 

WAS LISTED FOR TRIAL AND A SUMMARY 

JUDGMENT MOTION WAS NOT PENDING.

We first address plaintiff's argument that the motion judge 

improperly granted partial summary judgment. In ruling on a 
6 A-1829-16T4

summary judgment motion, the motion judge must decide whether 

there is a genuine issue of fact or, instead, whether the moving 

party is entitled to judgment as a matter of law. R. 4:46-2(c). 

The motion judge must "consider 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." Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 540 (1995). The court must give the non-moving party 

the benefit of all favorable inferences. Id. at 536. However, 

"when the evidence 'is so one-sided that one party must prevail 

as a matter of law,' . . . the trial court should not hesitate to 

grant summary judgment." Id. at 540 (quoting Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 252 (1986)). 

An appellate court reviews a grant of summary judgment de 

novo, using the same standard as the trial court. Turner v. Wong, 

363 N.J. Super. 186, 198-99 (App. Div. 2003). Thus, the appellate 

court must determine whether a genuine issue of material fact is 

present and, if not, evaluate whether the court's ruling on the 

law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 

N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 

(1998). 

Pursuant to N.J.S.A. 4:19-16:
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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.

To establish a right of recovery under the this statute, a 

plaintiff must prove that (1) the defendant is the dog's owner, 

(2) the dog bit the plaintiff, and (3) the plaintiff was either 

bitten in a public place or was lawfully present in a private 

place. De Robertis v. Randazzo, 94 N.J. 144, 151 (1983). This 

rule of liability is subject to a limitation, one which has been 

raised here, allowing dog owners to assert a defense of 

contributory negligence when "plaintiff kn[ows] the dog ha[s] 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." Pingaro v. Rossi, 322 N.J. Super. 494, 504-05 (App. 

Div. 1999) (internal quotations omitted).

The statute was construed in a limiting fashion in Reynolds, 

325 N.J. Super. at 323-25, in which we held that an "assumption 

of the risk" defense may be available to negate absolute liability 

under the statue, in a situation where the plaintiff is or is 

employed by an independent contractor caring for the dog. The 

facts in Reynolds involved a Rottweiler, trained as an attack dog 
8 A-1829-16T4

for prisoner control, which had been donated by a Pennsylvania 

prison to a commercial enterprise, defendant Guard Dogs Unlimited, 

Inc. (Guard Dogs). Id. at 306-09. Guard Dogs owned about fifty 

dogs, which were rented to businesses for private security at 

night. Id. at 309. The dogs were kept in kennels in a warehouse 

or maintained by Guard Dogs in kennels on the customer's premises. 

Ibid. One day, while in the kennel, the dog attacked and bit an 

independent contractor of Guard Dogs, Abbott, and then a few weeks 

later attacked and bit Guard Dogs' principal, Reynolds. Id. at 

306. Both men were seriously injured. Abbott filed a suit against 

Guard Dogs and the prison. Reynolds sued the prison but not his 

employer, Guard Dogs. In a consolidated jury trial, both Reynolds 

and Abbott obtained sizeable money judgments based upon the jury's 

findings of the defendants' negligence. Ibid.

After analyzing the facts and applicable legal principles, 

including case law from California, the panel in Reynolds concluded 

that the absolute liability provisions of the New Jersey statute 

did not apply to independent contractors such as Abbott. Reynolds, 

325 N.J. Super. at 323-24. In the course of its analysis, Reynolds

pointed out by analogy how a veterinarian, for example, should not 

be entitled to take advantage of the absolute liability provisions 

of N.J.S.A. 4:19-16, because a veterinarian is in the profession 

of caring for dogs. Ibid. (citing Nelson v. Hall, 154 Cal. App. 
9 A-1829-16T4

3d 709 (1985)). As such, a veterinarian has special skills and 

experience to recognize whether dogs are vicious or prone to bite 

and thus is "in the best position to take necessary precautions." 

Ibid. (internal quotation marks omitted).

The circumstances presented here are similar to Reynolds in 

that plaintiff was an experienced dog groomer. Prior to the 

incident, she worked in that capacity for a number of years. 

Plaintiff undertook the grooming of defendant's dog with the work 

experience to recognize the risk of a bite and to take 

precautionary measures. As she acknowledged implicitly during her 

deposition, she could have muzzled the dog as a precautionary 

measure but did not. We conclude that there was no proof that 

defendant was aware of a dangerous propensity of her dog, which 

she intentionally or negligently concealed. This failure of proof, 

coupled with plaintiff's status, caused the judge to properly 

apply the exception. 

We next turn to plaintiff's argument that it was error for 

the second judge to dismiss the common law negligence count in 

disregard of the "law of the case." The "law of the case" doctrine 

prohibits a second judge on the same level, in the absence of 

additional developments or proofs, from differing with an earlier 

ruling. It is a non-binding rule intended to prevent re-litigation 

of a previously resolved issue. Lombardi v. Masso, 207 N.J. 517, 
10 A-1829-16T4

538 (2011). A hallmark of the "law of the case" doctrine is its 

discretionary nature, calling upon the deciding judge to balance 

the value of judicial deference for the rulings of a coordinate 

judge against those factors that bear on the pursuit of justice 

and, particularly, the search for truth. See Little v. KIA Motors 

Am., Inc., 425 N.J. Super. 82, 91-92 (App. Div. 2012) (citations 

omitted).

Here, the second judge dismissed the common law negligence 

count after finding that the issue of duty was a question of law 

and not a question of fact. We agree as "[t]he determination of 

the existence of a duty is a question of law for the court." 

Petrillo v. Brachenberg, 139 N.J. 472,479 (1995).

Predicated upon the unrefuted facts from the discovery record: 

that the dog was old, but not that it had a propensity to bite, 

the judge held that defendant owed no duty to plaintiff as a matter 

of law. The second judge properly exercised discretion in 

reevaluating the legal issue. 

Finally, we find no basis for error in the procedure employed 

by the second judge. As noted, the motion was raised sua sponte 

and resulted in a dispositive ruling. Notwithstanding, from our 

review of the record, plaintiff's counsel who was well versed with 

the discovery record, was provided a fair opportunity to be heard. 

Affirmed.