Parents not immune from liability after rottweiler attacks their child
The family says the training school that sold them the dog failed to relay how vicious it was.
The doctrine of parental immunity doesn’t protect a dog owner from sharing liability for a vicious attack on his own child, a New Jersey appeals court ruled.
The Appellate Division reinstated a counterclaim for contribution and indemnification against the owners of a Rottweiler by the training school where they purchased the dog.
The ruling clarifies that parental immunity does not apply to claims under the dog-bite statute.
Who’s responsible?
On Jan. 15, 2020, two days after Frank Barkosky Jr. brought home a black and tan Rottweiler named Blaze, the dog attacked his minor son, Frank III, in the family home.
The dog shook Frank III from side to side, attempting to rip off his arm, and did not let go until a police officer arrived and repeatedly struck the dog with his baton, according to court papers. Frank III underwent multiple surgeries for his injuries.
Barkosky sued Weber Training School in Princeton and its owner, David Horowitz, claiming they failed to give the dog a temperament test, failed to disclose the dog’s vicious propensities and falsely represented Blaze as good around children and adults.
Weber and Horowitz denied the allegations, asserted a counterclaim for contribution and indemnification against Barkosky, and asserted under the dog-bite statute that Barkosky was ”primarily and wholly liable for any and all injuries and damages arising from the … dog bite attack upon his son.”
Weber and Horowitz also filed a third-party complaint against Barkosky’s wife, Jessica, claiming that she, too, was liable for her son’s injuries as the dog’s owner.
The Barkoskys contended they were immune from liability for their son’s injuries because defendants did not allege those injuries resulted from their willful and wanton actions. They also argued that plaintiffs did not plead the cause of action under the dog-bite statute, but rather alleged fraudulent misrepresentation and false advertisement related to their adoption of Blaze.
The case for strict liability
Mercer County Superior Court Judge R. Brian McLaughlin granted motions to dismiss the counterclaim against Barkosky and the third-party complaint against his wife.
McLaughlin said, “This is not a dog-bite case despite the fact that a dog bite is part of the subject matter of this litigation.”
Weber and Horowitz filed an interlocutory appeal.
At the Appellate Division, Judges Lisa Firko and Arnold Natali Jr. said McLaughlin erred in dismissing the defendants’ counterclaim and third-party claim based on parental immunity.
The panel cited Dower v. Goldstein, a 1976 Appellate Division ruling in which a minor bitten by his parents’ German Shepherd filed suit through his guardian ad litem for damages. That child’s parents had moved to dismiss, claiming they were entitled to parental immunity.
The trial court in Dower denied the parents’ motion to dismiss, and the Appellate Division affirmed, recognizing “the legislative intent that dog owners will be liable to persons for damages when the injured person” is lawfully on the owner’s property.
The Barkoskys, for their part, claimed that they were entitled to parental immunity under Foldi v. Jeffries, a 1983 decision from the New Jersey Supreme Court.
But Firko and Natali disagreed.
In Foldi, the panel wrote, a minor plaintiff, under her mother’s supervision, wandered into a neighbor’s yard and was bitten by the neighbor’s dog. The plaintiff, by her guardian ad litem, sued the neighbors, who filed a third-party complaint against her parents, alleging contributory negligence and seeking indemnification.
The Supreme Court, in Foldi, said ”the doctrine of parental immunity will continue to preclude liability in cases of negligent supervision, but not for a parent’s willful or wanton failure to supervise his or her children.”
But Firko and Natali said Foldi was inapplicable to the present case.
“Unlike the parents in Foldi, the Barkoskys own the dog that bit their child and are therefore subject to strict liability under the dog-bite statute,” the panel said.
Firko and Natali said the defendants’ counterclaim and third-party claim are thus not precluded by parental immunity.
The Barkoskys’ suit will now proceed to discovery and then trial, said Gaetano Mercogliano of Sweeney & Sheehan in Westmont, who represents Weber and Horowitz.
“The key takeaway from this ruling is that parental immunity did not apply here. The doctrine of parental immunity does not trump, if you will, the statutory liability established by the dog-bite statute against owners of a dog,” Mercogliano said.
Domenic Sanginiti Jr. of Stark & Stark in Hamilton, who represents the Barkoskys, did not respond to a request for comment about the case.
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