Barkosky v. Weber’s Training Sch.
Docket No. A-3142-21
Decided June 23, 2023
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Court of New Jersey decided defendants’ appeal from a Law Division order dismissing their counterclaim and third-party claim for failure to state a claim pursuant to Rule 4:6-2(e).
The Barkoskys adopted a rottweiler named “Blaze” from Weber’s, a dog training school located in Princeton. Weber’s boarded and trained Blaze for ten months. Two days after Blaze left Weber’s after it was adopted by plaintiffs, the dog attacked the plaintiffs’ minor son. The child was at the Barkosky’s home at the time of this event, being supervised by his grandmother. Plaintiffs stated the dog shook their minor child from side to side attempting to rip his arm off and did not let go of his arm until a police officer arrived and repeatedly struck Blaze with his baton. The minor child was medevacked to a hospital and underwent multiple surgeries for his injuries.
Frank III (minor child), by his guardian ad litem, Frank Jr., and Frank Jr., individually, filed a complaint in the Law Division against Weber’s and its owner, defendant David A. Horowitz, alleging negligence, misrepresentation, and violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -227, which they later amended. Plaintiff’s alleged in their amended complaint that defendants falsely represented to them “that Blaze was good with children and adults and that Blaze’s previous owners had children.” They also alleged defendants were aware “Blaze had previously exhibited dangerous behavior” and intentionally failed to disclose Blaze’s “vicious propensities” or that they “had not given Blaze a professional temperament test.”
Defendants responded to the complaint and asserted a counterclaim for contribution and indemnification against Frank Jr. Relying on the dog bite statute, N.J.S.A. 4:19-16, defendants claimed Frank Jr., as Blaze’s owner, was “primarily and wholly liable for any and all injuries and damages arising from the . . . dog bite attack upon his son.” Additionally, defendants filed a third-party complaint against Jessica, alleging she too was liable for her son’s injuries as Blaze’s owner.
Plaintiffs moved to dismiss defendants’ counterclaim and third-party complaint pursuant to Rule 4:6-2(e), arguing defendants’ claims were precluded by the parental-immunity doctrine. After considering oral argument and both parties’ submissions, the court granted plaintiffs’ motion and dismissed defendants’ counterclaim and third-party complaint with prejudice. The court articulated that the authority relied upon by defendants did not provide a basis to abrogate “parental immunity, which would defeat any claim for contribution.” Defendants subsequently filed an interlocutory appeal.
On appeal, defendants contended that the court erred in concluding their claims for contribution and indemnification were precluded by parental immunity. Defendants argued that pursuant to New Jersey’s dog bite statute, the victim’s parents, plaintiff Frank Barkosky, Jr., and third-party defendant Jessica Barkosky, are liable for the injuries suffered by their son after he was attacked by Blaze because the Barkoskys owned the dog and the dog bit Frank III while he was lawfully present on their property.
Ultimately, the Appellate Court disagreed with the trial court and reversed its decision. Relying on Dower v. Goldstein, the court noted that the parental-immunity doctrine is inapplicable to claims for liability under the dog bite statute. Furthermore, nothing in the dog bite statute’s plain language suggested legislature intended to exclude any category of dog owner from statutory liability. Thus, since the parents owned the dog that bit their child, they were subject to strict liability under the dog bite statute. Accordingly, it was premature for the trial court to dismiss defendants’ claims at the pleading stage.
At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining to personal injury matters regarding dog bites. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.
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