We were at the vet and my dog was getting his nails clipped. He was muzzled and visibly stressed. After the nail clipping the vet tech took the muzzle off while standing over his back and looked over the dogs head. In self defense, my dog jumped up and bit the techs face. Am I liable, if he decides to sue?
General Practice Lawyer
Anytime a dog bites, it is prudent to put your homeowner's insurance carrier on notice.
In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.
Criminal Defense Attorney
New Jersey is among the majority of American states that makes a dog owner legally liable for all of the damages inflicted upon a dog bite victim, even if the dog had never previously exhibited the propensity to bite humans. This liability results from New Jersey Statutes, section 4:19-16, which reads as follows:
4:19-16. Liability of owner regardless of viciousness of dog
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.
For the purpose of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof.
To recover under N.J.S.A. 4:19-16, a plaintiff must prove only that the defendant owned the dog, that the dog bit the plaintiff, and that the plaintiff was in a public place or lawfully on the owner's property. The statute does not apply if the victim was trespassing without criminal intent, or the injury was not caused by a bite, or the target defendant was not the dog's owner. However, a cause of action also can be based upon common law strict liability for scienter, negligence, and negligence per se. De Robertis v. Randazzo, 94 N.J. 144 (1983). For more about those causes of action, see Legal Rights of Dog Bite Victims in the USA.
There are generally two types of dog bite claims in which the defendant may appear liable without having to pay the victim at all, or without the responsibility of paying all of the victim's losses. The first involves a victim who was trespassing. The dog bite statute permits a defense based upon trespass, but only if the trespasser had criminal intent. De Robertis, supra.
The second is a claim based upon an accident that was caused by more than one person. For example, the victim's conduct might have been wrongful and therefore negligent, or the dog might have been in the process of being walked by a professional dog walker who was inattentive and therefore negligent. In such cases, the dog owner's liability is not truly "strict," but "almost strict," in that the plaintiff cannot recover if his responsibility for the accident is greater than the responsibility of whoever else may be held responsible, and furthermore, he can recover from each defendant only the amount that corresponds to that person's fault. For example, if the victim was not looking where he was going, and the jury believed that the victim was negligent, the jury could attribute 50% of the fault to the victim, in which event the victim would receive 50% of his losses. Another example would involve the dog walker: if the jury believed that the victim was not negligent, the jury might attribute 50% of the loss to the dog walker and 50% to the dog owner. This results from the operation of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1.
Not all persons can be held comparatively negligent, however. Bush v. New Jersey and New York Transit Company, 30 N.J. 345 (1959). Under the age of seven, a victim is presumed to have not been negligent. At four years or younger, the presumption is almost irrebuttable. Ibid.
New Jersey has partially eliminated the joint and several rule, meaning that a defendant who is less than 60% responsible for any accident can be required to pay all of the economic expenses but only that portion of the noneconomic losses (such as pain and suffering) which equals his actual percentage of fault.
Call your insurance company and hire an attorney.
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If he does sue you, turn the claim over to your home owner's insurance company who shold provide you with counsel. In the event you do not have insurance retain an attorney if you can. You do have several defenses available, provocation, and negligence on the part of the vet tech. You might even have an argument that you were not in possession of the dog at the time of the bite, but that may be stretching it a little.