Not Reported in A.2d, 2010 WL 771954 (N.J.Super.A.D.)
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
*1 Plaintiff, State of New Jersey, through the Borough of Haddonfield, appeals from the final judgment of the Law Division reversing the finding of the municipal court that defendant Robert Taffet's dog “Rocky” is a potentially dangerous dog under N.J.S.A. 4:19-23(a) and its imposition of certain measures to mitigate any future attacks. For reasons that follow, we reverse and reinstate the municipal court's judgment.
The following facts were adduced at the municipal court trial. Defendant, a resident of Haddonfield, owns, breeds, and shows four Rhodesian Ridgebacks that are kept at his home in a residential neighborhood. Rhodesian Ridgebacks were originally bred to hunt lions in packs and are “defined, muscular, stocky-type dogs.” Rocky is one of defendant's Rhodesian Ridgebacks that weighs approximately 100 pounds and stands twenty-nine-and-one-half inches measured from floor to shoulder blade, which is approximately the height of a standard table top. Over a two-year period, Rocky has caused harm to five individuals-one adult and four children-three of whom have been bitten and two others scraped.
The first of five incidents occurred in October 2002 when defendant was walking two of his dogs, Rocky and Pluto, off leash and on a paved road near a soccer field sometime after 9 p.m. At the same time, Dr. Michael Harkins was walking his Golden Retriever, also off leash, some fifty yards ahead of defendant. Defendant's dogs charged toward Harkins and his Golden Retriever, who took flight and was pursued by the Ridgebacks. At the soccer field, the two Ridgebacks overcame and attacked Harkins' Golden Retriever.FN1 Harkins, who ran after the dogs in an attempt to prevent injury to his dog, found that defendant's dogs had pinned his Golden Retriever to the ground. Harkins then attempted to pull the Ridgebacks off his dog and in doing so, Rocky bit Harkins on one arm and the other dog, Pluto, who has since died, bit his other arm. Taffet had to kick one of the Ridgebacks away to separate them from Harkins and his dog. Harkins sustained bodily injury requiring 20 stitches in one arm and 10 stitches in the other, which resulted in permanent scarring.
FN1. According to Harkins, “I saw the two Rhodesian Ridgebacks attacking my Golden Retriever.” Even defendant acknowledged that “there was some growling, barking, and it looked like things could be escalating towards a fight.”
Another incident, in November 2004, involved then fourteen-year old Jacqueline Castorino, who was bitten by Rocky when she was petting him while kneeling in the bedroom of her friend, defendant's daughter, Elizabeth Taffet. According to Jacqueline:
I was in Liz's room, and I was on my knees, and I was petting the dog on the head. And Liz and her little sister were in there with me. And Liz left the room to get something, I don't remember, ... and the dog just pounced on my shoulder and it just like bit me, and then I pushed it off.
Jacqueline insisted she did nothing to provoke Rocky:
No. I have been an animal-lover my whole life ... if I did anything wrong to the dog, I don't know what it was. I just pet it-I was petting it on its head, and it was perfectly fine for an extended period of time before, and then just all of a sudden he jumped on me.
*2 Jacqueline also denied ever touching the dog's paws or hearing him growling or bark.
Although not in the room at the time of the attack, Elizabeth offered a different version of the events leading up to the incident:
[I told Jackie] not to do what she had been doing as she had crouched down and was eye level with the dog and was beginning to pick up his paws as if to lift him up. And I said I would not do that if I were you. And she said it's okay, I do it with my dog all the time. And I, therefore, continued to walk out of the bedroom and had heard like commotion in the bedroom. And I turned around, and I had not ... seen the dog, Rocky, bite her at all. But when I had turned back around the dog had backed off of her and walked out of the room, and that was that.
At defendant's request, Jacqueline never reported the attack to authorities for fear of having Rocky put to sleep since defendant told her there were previous incidents with the dogs. Defendant, an orthopedic surgeon, treated Jacqueline for her dog bite at his medical office and attended to her for several days thereafter, making a number of house visits to dress and squeeze the fluid from the wound. Rocky's bite resulted in a scarring depression in Jacqueline's left shoulder, causing her embarrassment, and requiring scar reduction surgery and injections from a dermatologist due to deep irritation of the wound site.
Yet another incident, occurring sometime in either 2001 or 2003, involved a child named Jonathan Erdy who was bitten on the ear apparently by Rocky while he was hugging the dog at a T-ball game in Haddonfield. Defendant said that Jonathan only “sustained a superficial bite,” and was not sure which dog, Rocky or Pluto, both of whom had been on a leash, had bit him. According to defendant, he had asked Jonathan's parents at least three times to have their child stop hugging the dogs, which, defendant claimed, they did not do.
The fourth incident involved Dominic D'Orazio who was at the Taffet home for a sleepover. While Dominic was running and playing with one of defendant's children, Rocky, who was then only four months old, scraped Dominic's right arm and left buttock. According to defendant's wife, Dominic was taken to the pediatrician by his mother and due to the incident, county authorities required defendant to take Rocky to the veterinarian where he was quarantined for three days.
Finally, defendant's son, Sam, was scraped when both he and Rocky went after food the boy dropped on the floor soon after the Castorino incident in November 2004. According to Jacqueline's mother, three or four days after her daughter was bitten:
Mrs. Taffet came to my house ... with her son ... and he had a scratch across his face. And she said that Rocky attacked her son and lunged at the son while he was in the room with him. And his face was healing very nicely because she had a cream that she was using on the scar. And she was hoping to use the medicine, lotion, on [Jacqueline] too to see if that would help with her scar to make it go away like her son's face did.
*3 None of these incidents resulted in the issuance of a municipal summons at the time of occurrence. However, there were a number of municipal complaints filed by neighbors thereafter. For instance, on September 11, 2007, while Dr. Robert Principato was walking his small dog with his young son in the neighborhood, Rocky came charging off the Taffet property in a menacing way, circling the three. In an attempt to protect his child and dog, he picked them both up. According to Principato, Rocky was “menacing” and his son was “very terrified” by the dog's actions as it stood about the same height as his child. As a result of this incident, Principato filed a municipal complaint against defendant.
At another time, while walking in the neighborhood with his wife and children, Principato bent down to pet Rocky, who was being walked by defendant, and “Rocky growled and barked and snapped at him.” Defendant told the Principatos that Rocky “has anxiety, so I am giving him Saint John's Wort,” a fact confirmed by defendant's wife. On yet another occasion, Principato intervened during an incident wherein Joann Thomas was walking her two small dogs near defendant's property and one of Taffet's dogs came off the property and charged at them.
Principato's wife, Suzanne, observed three of defendant's Ridgebacks come onto a neighbor's property, and when the neighbor, Julie Hughes, attempted to scoot them off, one of the dogs “started to bark violently and come towards [Hughes] .... And it started to lunge towards her.” Suzanne was so fearful of defendant's dogs that she was afraid to have her young children play on their own property. She has filed four municipal complaints since July 2006, regarding the Taffet dogs being off leash and running at large in the neighborhood.
On the basis of these complaints, on November 26, 2007, Haddonfield's animal control officer, Lisa Ricigliano, issued and served upon defendant two summonses for his four Rhodesian Ridgeback dogs, one under N.J.S.A. 4:19-22 (Vicious Dogs) and another under N.J.S.A. 4:19-23 (Dangerous Dogs). Following a three day trial in the municipal court, the judge declared only one of defendant's four Rhodesian Ridgebacks, Rocky, to be a potentially dangerous dog; dismissed the vicious dog claim against Rocky; dismissed all other claims against the other three dogs; and imposed measures to mitigate any future attacks by Rocky. These measures, consistent with N.J.S.A. 4:19-24, included erecting a six-foot high fence enclosing the property where Rocky is to be confined; muzzling and restraining Rocky with a tether whenever Rocky is taken out of his enclosure; and maintaining liability insurance in the amount of $1 million to cover any damage or injury caused by Rocky.
The municipal court judge's finding that Rocky is a “potentially dangerous dog” under N.J.S.A. 4:19-23(a) was based on only the Harkins and Castorino incidents. As to both, the judge concluded:
*4 Based on the testimony and the credible and believable testimony, I find, by clear and convincing evidence, that Dr. Taffet's dog, Rocky, ... did, in fact, bite Dr. Ha[r]kins at the Crows Woods event which occurred in October of 2002.
I find, by clear and convincing evidence, that Dr. Ha[r]kins sustained bodily injury to both arms as defined by 2C:11-1A.... I find that those injuries were a result of a bite by the dog, Rocky. I find, by clear and convincing evidence, that the State has proved that the attack and bite by Rocky was unprovoked.
I also find, by clear and convincing evidence, that the Taffet dog, identified as Rocky, did, in fact, bite the minor, Jacqueline Castorino, in the Taffet home at the time of the November, 2004 event.
I find by clear and convincing evidence, that Ms. Castorino sustained a bodily injury as a result of the bite by Rocky, as defined by 2C:11-1A.1. And that those injuries resulted from that bite.
I also find, by clear and convincing evidence, that the attack and bite sustained by Ms. Jacqueline Castorino was unprovoked, as outlined in the statute.
I also find, by clear and convincing evidence, that ... Rocky is a potentially dangerous dog, specifically within the meaning of N.J.S.A. 4:19-23.
[ (emphasis added).]
On its de novo review of the record, the Law Division reversed the municipal court judgment and subsequent orders that adjudicated Rocky a potentially dangerous dog under N.J.S.A. 4:19-23(a). As to the Harkins incident, the judge essentially found that Harkins overreacted to the two Rhodesian Ridgebacks and in doing so, unreasonably provoked Rocky into attacking him:
I had a Golden Retriever. I've been in the company of many Golden Retrievers. I don't think I've ever seen one that was anything but totally submissive. They're like big puppies, very docile. It seems to me that what may have actually happened here was that ... the dog wasn't really pinned down, but the dog may have laid down in a totally submissive way responding to the two larger dogs, ... the Ridgebacks owned by the Taffet's.
But those ... aspects [are] really not critical here. What's critical is that the dog wasn't hurt. His dog wasn't hurt. He-to quote his words, I grabbed one of the dogs-one of the Ridgebacks. I pulled the other dog off. Exact details of those maneuvers, on his part, were not developed in the transcript. So ... I don't know what he did exactly. Maybe he grabbed their collars. Maybe he got them around the head. Maybe he grabbed them around their body.
So, what happened here, and again, I emphasize both dogs reacted the same because they were highly agitated. They were excited. They're playing with another dog. They didn't do any damage to the other dog. Somebody grabs them, and immediately it's a turn, and react with your mouth.
Based on the actual circumstances that existed that night has developed before the municipal court. I find that this conclusion by [the municipal court judge] was clearly wrong. He seems to have totally ignored the context in which the bites occurred. Given the actual factual circumstances, the Taffet dogs were clearly provoked. It was an intentional provocation, obviously, and I emphasize that phrase. it was an intentional provocation, obviously.
*5 He was trying to protect his dog, but the incident didn't occur in a vacuum. As so many situations in life, the analysis must be fact sensitive. At that time, in the dark, the dogs were in an excited, aroused state. The bites occurred in that setting.
The statute, I point out, doesn't say that the provocation must be intentional. That's a very, very important distinction. Provocation is a ... somewhat, amorphous term. It is directly related to the factual circumstances, and it did not seem to be, in my review, that [the municipal court judge] paid proper attention ... to the context.
[ (emphasis added).]
As to the Castorino incident, the Law Division judge noted that it occurred “more than four years ago” and that “[c]learly the young lady was bitten [,]” but that as to whether Rocky was provoked, “it is relatively impossible for this Court to make credibility determinations, and I'm not going to do so. If anybody is lying in this case, shame on them.... So, therefore, I just accept the testimony in the way it's set forth in the transcript.” Accordingly, the judge concluded:
I don't know, and I'm not going to speculate.
I will note, and observe, however, that if a person picks up a dog's front paws, the dog obviously loses the ability to back off, and run, and that could cause a reaction. Whether that happened in this case, I don't have a clue, and, again, I will not speculate, once again. The testimony of the two young ladies, who are friends, and, by the way, I should mention, apparently remained friends after the incident, because I observed the other day that Jacqueline testified that she's been back in the Taffet household at least a few times after the incident.
So, once again, to state the obvious from the dates that the incident took place, this incident involving Jacqueline occurred more than four years ago. From the record, there has been no biting incident since.
I cannot find that there was anything but totally innocent provocation. If there was any provocation at all, based on the concept, and the testimony between Jacqueline, and Elizabeth. But, by the same token, I cannot find that Rocky poses a serious threat of bodily injury.
This appeal by the State follows.
The function of the Law Division on an appeal from municipal court is not to search the record for error by the municipal court, not to decide if there was sufficient credible evidence to support the municipal court conviction, but “to determine the case completely anew on the record made before the trial judge, giving due, although not necessarily controlling, regard to the opportunity of the judge” to evaluate witness credibility. State v. Cerefice, 335 N.J.Super. 374, 382-83, 762 A.2d 668 (App.Div.2000) (citing State v. Johnson, 42 N.J. 146, 157, 199 A.2d 809 (1964)); see also R. 3:23-8(a). In other words, the judge in a trial de novo must make his or her own independent findings of fact, State v. Avena, 281 N.J.Super. 327, 333, 657 A.2d 883 (App.Div.1995) (quoting State v. Ross, 189 N.J.Super. 67, 75, 458 A.2d 1299 (App.Div.), certif. denied, 95 N.J. 197, 470 A.2d 419 (1983)), but giving “deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.” Johnson, supra, 42 N.J. at 161, 199 A.2d 809. Even if the municipal judge has failed to make findings with respect to an issue, the Law Division may do so, as long as there is evidence in the record to support those findings. See State v. Sisti, 209 N.J.Super. 148, 151, 506 A.2d 1307 (App.Div.1986).
*6 On the other hand, “[w]hen the municipal court has resolved conflicting testimony by making a credibility assessment, [ ] the Law Division's ability to reject the lower court's findings is more limited.” Richmond & Burns, New Jersey Municipal Court Practice, Chapter 21:1-3 at 452 (Gann 2008). Even where the municipal court has failed to articulate specific reasons for its credibility findings, the Law Division should grant the deference contemplated by Johnson, when the reasons for the municipal court's assessments of the witnesses' relative credibility can be inferred from its decision. Id. at 453, 199 A.2d 809. See also State v. Locurto, 157 N.J. 463, 473-74, 724 A.2d 234 (1999); State v. Oliveri, 336 N.J.Super. 244, 251-52, 764 A.2d 489 (App.Div.2001) (“Implicit in both adjudications was a finding that the arresting officer's testimony was credible.”); State v. Lazarchick, 314 N.J.Super. 500, 524-26, 715 A.2d 365 (App.Div.), certif. denied, 157 N.J. 546, 724 A.2d 804 (1998), rev'd on other grounds by, Flagg v. Essex County Prosecutor, 171 N.J. 561, 796 A.2d 182 (2002). Indeed, in State v. Hodgson, 44 N.J. 151, 163, 207 A.2d 542 (1965), cert. denied, 384 U.S. 1021, 86 S.Ct. 1929, 16 L. Ed.2d 1022 (1966), the Court found it unnecessary for a trial court to enunciate credibility findings when the record as a whole made the findings clear:
In view of the trial judge's overall remarks in the record, there is no doubt that he believed the detective's denial and disbelieved the defendant and no purpose would be served by seeking a further expression from the trial judge on this score. The matter is strictly one of credibility and there is no reason for our now rejecting the testimony credited by the trial judge before whom it was given.
“To require judges in our municipal courts with extremely voluminous case loads to articulate detailed, subjective analyses of factors such as demeanor and appearance to support credibility determinations on each and every witness presented before them would unnecessarily tax a system that is already overburdened.” Locurto, supra, 157 N.J. at 475, 724 A.2d 234.
In contrast to the role of the Law Division, the scope of our review is limited. State v. Clarksburg Inn, 375 N.J.Super. 624, 639, 868 A.2d 1120 (App.Div.2005). Our function as a reviewing court is governed by the “substantial evidence” rule, namely to determine whether the findings of the Law Division could reasonably have been reached on sufficient credible evidence present in the record. Johnson, supra, 42 N.J. at 162, 199 A.2d 809; Clarksburg Inn, supra, 375 N.J.Super. at 639, 868 A.2d 1120 (“Our review is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court.”); Oliveri, supra, 336 N.J.Super. at 252, 764 A.2d 489 (review by the Appellate Division is of the de novo review, not of the municipal court trial, provided the de novo court paid required deference to the credibility findings of the municipal court). However, even though our review is limited,
*7 [I]f the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, ... then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. While this feeling of “wrongness” is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of “wrongness” can arise in numerous ways-from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others.
[ Johnson, supra, 41 N.J. at 162 (internal quotations and citations omitted).]
Governed by these standards, we conclude the Law Division's findings failed to properly defer to the trial court's credibility determinations and are not supported by sufficient credible evidence. Moreover, its conclusions do not comport with applicable law.
Pursuant to the Vicious and Potentially Dangerous Dog Act (Act), N.J.S.A. 4:19-17 to -37:
(a) The municipal court shall declare a dog to be potentially dangerous if it finds by clear and convincing evidence that the dog:
(1) caused bodily injury as defined in N.J.S. 2C:11-1 (a) to a person during an unprovoked attack, and poses a serious threat of bodily injury or death to a person
[ N.J.S.A. 4:19-23(a)(1).]
N.J.S.A. 2C:11-1(a) provides that bodily injury “means physical pain, illness or any impairment of physical condition[.]” However, a dog shall not be declared potentially dangerous if provoked. N.J.S.A. 4:19-23(b)(1). The municipality bears the “burden of proof to demonstrate that the dog was not provoked.” N.J.S.A. 4:19-23. The Act, however, does not define “provocation.” Additionally, the Act does not impose a temporal requirement within which an attack must be considered under N.J.S.A. 4:19-23.
In its absence, the State asserts we adopt the standard used in the “dog bite” statute, N.J.S.A. 4:19-16, imposing strict civil liability on owners for injuries caused by their dogs. In those cases, an owner's liability is reduced only where a plaintiff's conduct adds to his injuries, namely where plaintiff's “deliberate acts are intended to incite the animal.” See, e.g., Pingaro v. Rossi, 322 N.J.Super. 494, 499, 731 A.2d 523 (App.Div.1999) (when there exists an absence of evidence that the plaintiff excited the dog or unreasonably exposed herself to a known risk, there is “no basis in law to submit the issue of plaintiff's negligence to [a] jury”); Budai v. Teague, 212 N.J.Super. 522, 525, 515 A.2d 822 (Law Div.1986) (“In light of the ‘dog-bite’ statute, this must mean that plaintiff knew the dog had 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. Such a ruling would preserve the intent of the statute in imposing liability while providing a defense against the plaintiff who torments a dog and then sues its owner.”); see also Model Jury Charges (Civil), Statutory Owner-Dog Bite Liability 5.60A (December 2009). Defendant, on the other hand, advocates a broader, more generous construction, extending “provocation” to include the ordinary negligence standard of careless or “unreasonable” human conduct. We need not determine which interpretation more closely approximates the legislative intent because the evidence in this case does not support a defense of provocation under either version.
*8 The Law Division judge found that Harkins overreacted when he intervened because the dogs were merely playing as dogs do, with the Golden Retriever lying down in a submissive and docile manner, and that the bite was simply a self-defense move on Rocky's part to being pulled apart, in the dark, from the friendly ‘roll around in the hay’ between the dogs. These findings, perhaps reflective of the judge's own personal experiences, are entirely unsupported by the record. Harkins clearly testified that defendant's dogs were “attacking” his dog, and defendant himself concluded that it looked like a “fight.” There was no conflicting evidence contradicting Harkins' account that his dog was pinned by Rocky and Pluto. And the fact that Harkins' dog may not have been injured is hardly dispositive of whether the dog had been attacked.
The Law Division also failed to defer to the credibility determinations of the municipal judge. In finding that defendant's dogs, including Rocky, initiated the attack on the Golden Retriever, the trial judge impliedly found Harkins more credible than defendant, who admittedly was about seventy-five yards away from the site of the attack when it started, and unlike Harkins who responded immediately, could not run to the site due to medical problems.
Under the circumstances, given the undisputed fact that Harkins' dog was attacked by Rocky and another Rhodesian Ridgeback, Harkins' rescue effort in attempting to get the pair off of his Golden Retriever, lest the dog be seriously wounded, was neither unreasonable nor “provocative” under any plausible definition of the term. Harkins' action was certainly not the “obvious[ ],” “intentional provocation” found by the Law Division judge, who failed to buttress this conclusion with anything other than subjective opinion, bereft of factual support in the record.
We find a similar lack of provocation in the Castorino incident. Unlike the Harkins' event, the Law Division judge made no credibility determinations even though there was a clear factual conflict between the accounts of Jacqueline and Elizabeth, which the municipal court implicitly resolved in Jacqueline's favor. But even crediting Elizabeth, who admitted to not being present during the attack, there is still no record evidence that Jacqueline was looking into Rocky's eyes for an extended term, so as to provoke the dog, rather only evidence that she was at eye level. And on this score, we decline to hold that the mere act of looking at Rocky at eye level is unreasonable or sufficiently provocative, as anyone of a similar height to Rocky, with face level to the dog's, would fall outside the protective shield of N.J.S.A. 4:19-23(a).
In sum, we find the evidence of Rocky's dual attacks causing bodily injury to Harkins and Jacqueline to be undisputed, as is the evidence that, because of these and other attacks, as well as more recent intimidating activity in the neighborhood, Rocky poses a serious threat to cause bodily injury to another. We further conclude that the Law Division's finding of provocation to excuse Rocky's actions is based neither in law nor the facts of record. As such, the Law Division erred in finding no violation of N.J.S.A. 4:19-23(a).
*9 The judgment of the Law Division is reversed. We remand to the Law Division for reinstatement of the judgment imposed by the municipal court.