NOT FOR PUBLICATION

PER CURIAM.

After being run into and injured by defendants' dog, plaintiff brought this personal injury action, asserting claims of negligence and absolute liability. The trial court granted defendants summary judgment, finding the record insufficient to establish that they had reason to know that their dog posed a danger to plaintiff as it ran about their yard. Giving plaintiff all favorable inferences from that record, we conclude that the entry of summary judgment was erroneous. Consequently, we reverse and remand the case for a jury trial.

Discovery in this matter has revealed the following facts, many of which are undisputed. We consider them in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On June 22, 2008, plaintiff Jacqueline Conrad was present as a social guest in defendant Susan Catapano's backyard in Port Monmouth. Susan's son, defendant Jim Catapano, was also present. At defendant's invitation, plaintiff and her husband1 brought their two dogs, a Jack Russell Terrier and a Beagle-Dachshund mix, to the Catapano residence that afternoon. They had done so for the express purpose of having a "doggie play date" with defendant Jim Catapano's dog, "Blaze." Although Susan Catapano considered Blaze to be a Pit Bull, her son Jim clarified in his deposition that Blaze is a Staffordshire Terrier. During the play date, the three dogs were off-leash, running around, and playing freely in defendants' fenced-in backyard.

The exact sequence of events that ensued is the subject of disagreement. According to plaintiff, about an hour or so into the play date, Blaze ran into her left knee while chasing after the two other dogs. As plaintiff described it at her deposition, "I was standing there in a conversation with [other guests] talking. I had my head turned. Next thing I notice [sic] I see my two little dogs running by me and then next thing I know I was hit in my left leg." Defendants, meanwhile, contend that plaintiff was not paying attention to what was making the two guest dogs run by her, and that she was merely "jostled" by Blaze.

The impact by Blaze was not strong enough to knock plaintiff down to the ground. However, plaintiff recalled she was "jolted two feet to the right." Plaintiff stated that Blaze did not make any noises, such as growling or barking sounds, before he ran into her. Following this blow, plaintiff sat down in a chair with her left leg elevated for fifteen or twenty minutes. After resting her leg, plaintiff, her husband, and their two dogs left defendants' residence and went home.

The following morning, June 23, 2008, plaintiff sought emergency treatment at a local hospital. She was eventually diagnosed with a tear of her left anterior cruciate ligament, possible nerve entrapment, and other injuries to her left leg and knee. The leg did not fully heal, and consequently plaintiff underwent arthroscopic anterior cruciate ligament reconstruction on her left knee in October 2008. In August 2009, plaintiff underwent a second arthroscopy on her left knee. She contends that these knee and leg injuries, and the two surgeries, were proximately caused by the impact from Blaze.

In 2010,2 plaintiff filed a complaint against the Catapanos in the Law Division, seeking compensation for her personal injuries caused by Blaze. The matter was initially scheduled for trial on March 5, 2012, and then rescheduled for trial on June 11, 2012.

On April 5, 2012, defendants filed a motion for summary judgment on the issue of liability. The motion was returnable on April 27, 2012, which was after the initial trial date listing.3 Plaintiff filed a cross-motion for partial summary judgment on the issue of liability.

Upon hearing oral argument, the trial court issued an order on May 11, 2012 granting summary judgment in favor of defendants and dismissing plaintiff's complaint with prejudice. Among other things, the motion judge found in her oral ruling that defendants could not be liable for injuries caused by Blaze in their backyard because there was no proof that defendants had "prior knowledge... of the dog, Blaze, running into people." The judge also concluded that the fact that the dogs would be running around in the backyard was "a readily observable condition," and that defendants had no duty to warn plaintiff of that condition.

Plaintiff now appeals. She argues that the trial court failed to grant her all favorable inferences, and that a jury could rationally find from the evidence that defendants were liable to her for the injuries caused by their rambunctious dog. We concur.

The early common law differentiated between wild animals and domesticated animals, such as dogs, for the purpose of imposing liability on an owner for injuries caused by such animals. Emmons v. Stevane, 77 N.J.L. 570, 572 (E. & A. 1909). While an owner of a wild animal was absolutely liable under the common law for harm caused to others by the animal, the owner of a domesticated animal was only liable if the animal was vicious and the owner had scienter, or knowledge, of the animal's vicious propensities. Ibid.; see also Barber v. Hochstrasser, 136 N.J.L. 76, 79 (Sup. Ct. 1947) (treating "both viciousness and scienter" as indispensable elements). The justification for imposing absolute liability lies in the wrong of harboring an animal while having knowledge of its viciousness. Emmons, supra, 77 N.J.L. at 572.

In 1933, N.J.S.A. 4:19-16 was enacted, imposing absolute liability on a dog owner, even if the owner did not have the requisite scienter, in certain situations where the dog has bitten another person. See DeRobertis v. Randazzo, 94 N.J. 144, 151 (1983) (explaining the effect of the statute). In cases where a dog injures a person without inflicting a bite, the statute does not apply.4 However, a common law cause of action for absolute liability remains if viciousness and scienter can be established. Id. at 156; see also Jannuzzelli v. Wilkens, 158 N.J.Super. 36, 41 (App. Div. 1978). If the dog is not vicious, or if the owner does not know of the dog's vicious propensities, then negligence, not absolute liability, applies. DeRobertis, supra, 94 N.J. at 156. Since absolute liability is based on the premise that those who knowingly harbor dangerous animals owe a greater responsibility to the public, "the rationale for absolute liability disappears in the absence of scienter." Ibid.

Scienter in this context has routinely been defined as the dog owner's knowledge that the disposition of the dog "is such that it is likely to commit a similar injury to that being complained of[.]" Emmons, supra, 77 N.J.L. at 572. However, the dog need not have previously committed the same injury for the owner to possess scienter of the dog's vicious propensities. Ibid. The reported cases have generally found scienter to exist where the plaintiff was able to establish proof that the dog had acted dangerously in the past, such that the owner knew or should have known, that the dog exhibited such dangerous propensities.

For example, in Emmons, supra, the plaintiff was severely bitten by defendant's dog. 77 N.J.L. at 571. Although that case involved a dog bite, the current dog bite statute had not yet been enacted, and as such, common law absolute liability still governed. Id. at 572-74. At trial, evidence was given that the dog had previously jumped for, growled at, and bared his teeth to strangers in several instances, and that some of these behaviors had been brought to the attention of the dog's owner. Id. at 571. Additionally, there was testimony that the defendant had admitted that he knew the dog to be "vicious" after a witness had expressed her concerns to the defendant over his dog's tendency to jump on her. Id. at 571. The trial judge directed the jury to find a verdict for the defendant; however, the Court of Errors and Appeals reversed. Id. at 571.

The Court in Emmons noted that it is not necessary for the dog to have committed the same injury in the past, and that substantially similar acts will suffice to establish scienter. Id. at 572-73. The Court went on to say that where

The Court thus concluded that the evidence of the dog's previous acts, as well as the defendant's prior knowledge of such acts, was sufficient to raise a question of fact for the case to have been submitted to the jury. Ibid.

Similarly, in Barber v. Hochstrasser, 136 N.J.L. 76, 78 (Sup. Ct. 1947), the plaintiff, while walking her dogs on a public street, was struck and knocked down by the defendants' dog. There was evidence that the dog had vicious propensities and that the defendant wife, who was the dog's owner, had previous knowledge of such viciousness. Id. at 78, 80. The jury found both the defendant husband and wife liable for the plaintiff's injuries. Id. at 78. The defendant husband appealed the decision, and the Supreme Court affirmed. Ibid. As part of its opinion, the Court noted that a local board of health record had shown that the defendants' son had reported that the dog had previously bit a man on the right forearm. Id. at 81. The record was part of the factual basis that the plaintiff successfully presented at trial to establish the defendants' requisite prior knowledge of the dog's viciousness. Id. at 81-82.

Significantly for the present case, we have held that scienter can exist where a dog owner is aware of his dog's overly aggressive actions that are exhibited not only in anger, but also in play. In Jannuzzelli, supra, 158 N.J. Super. at 42, the defendants' dog, while secured by a chain attached to his doghouse, jumped up and scratched the plaintiffs' child with his paws. Id. at 39-40. The defendant testified that his dog had a propensity to jump up on people in an attempt to get them to pet him, and in the course of such action would scratch them with his paws. Id. at 40. The defendant went on to say that on two previous occasions, the dog had injured small children by jumping up and scratching them on the face with his paws. Ibid.

In analyzing those circumstances in Jannuzzelli, we noted that an owner's knowledge of his dog's "overly demonstrative affection or playfulness, with a propensity for enthusiastically jumping up on visitors," is sufficient to establish scienter. Id. at 42 (emphasis added) (citing 3 Restatement (Second) of Torts § 509 at 16-19 (1977) (explaining that the usual situation to which common law absolute liability is applicable is when the animal is "vicious, that is, has a tendency to attack human beings or other animals," however, this rule is also applicable in the situation where "the animal is not vicious but has a dangerous tendency that is unusual and not necessary for the purposes for which such animals are usually kept") (emphasis added)). Given that evidence of the owner's prior knowledge of the dog's mischievous propensities to jump and scratch, we agreed with the plaintiff that there was a triable issue of fact on the question of absolute liability. Id. at 42, 47.

An opposite conclusion was reached in Hayes v. Mongiovi, 125 N.J.Super. 413, 414 (App. Div. 1973), where this court found that the plaintiff did not sufficiently establish that the defendant possessed the requisite scienter of his dog's vicious propensities for absolute liability purposes. In that case, defendant's 150-pound Great Dane broke free from his leash, ran across the street to the plaintiff, and knocked her down. Hayes v. Mongiovi, 121 N.J.Super. 272, 273 (Law Div. 1972), aff'd, 125 N.J.Super. 413 (App. Div. 1973). Absent sufficient evidence that the dog had exhibited vicious propensities prior to this incident, the trial court held that the dog owner could not be found liable to the plaintiff. Ibid. We sustained that ruling. Hayes, supra, 125 N.J. Super. at 414.

In considering plaintiffs' appeal here, we not only consider these concepts relating to the potential liability of dog owners, but we also must abide by certain fundamental principles applicable to summary judgment motions. The court 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, supra, 142 N.J. at 540; see also R. 4:46-2(c). The court cannot resolve contested factual issues but instead must determine whether there are any genuine factual disputes. Agurto v. Guhr, 381 N.J.Super. 519, 525 (App. Div. 2005). If there are materially disputed facts, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, supra, 142 N.J. at 540. To grant the motion, the court must find that the evidence in the record "`is so one-sided that one party must prevail as a matter of law[.]'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Our review of an order granting summary judgment observes the same standards, including our obligation to view the record in a light most favorable to the non-moving parties, here plaintiff. See Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We accord no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations).

Affording plaintiff all reasonable inferences from the record, we conclude that the trial court erred in dismissing her lawsuit. There are genuine issues of material fact as to defendants' prior knowledge of Blaze's proclivities that could rationally lead a factfinder to hold defendants liable under theories of absolute liability or, in the alternative, negligence.

During her deposition, Susan Catapano repeatedly acknowledged her awareness of Blaze's tendency, as she put it, to become "hyper" in the presence of other dogs. She agreed that Blaze can get "excited" in those circumstances, causing him to bark and run. She also acknowledged that if Blaze sees a familiar person, he can get excited and run towards him or her. In addition, Jim Catapano stated at his deposition that he was aware that, since Blaze weighs about eighty pounds, "if that dog even walks past you slowly you are going to fall, it's going to knock you over."

Although we agree with the motion judge that many dogs naturally get excited by the presence of other dogs or humans, viewing the record, as we must, in a light most favorable to plaintiff, the jury should have been provided an opportunity to evaluate whether defendants' prior knowledge of Blaze's characteristics amounted to scienter for purposes of absolute liability, or, alternatively, satisfied the lesser standard of negligence. Plaintiff did not have to show that Blaze had injured or run into another person in the past in order to establish defendants' culpability. A rational juror conceivably could find that defendants' awareness of Blaze's propensity to become "hyper" and his capacity to "knock you over" was sufficient to meet the tests for liability. In making its assessment, the jury could evaluate the credibility of defendants' position that they had no reason to believe that Blaze was unduly animated or otherwise posed a danger to persons standing nearby. If plaintiff is accorded all reasonable factual inferences, the circumstances here are arguably more comparable to those in Jannuzzelli, where the potential for liability existed, than those in Hayes, where a triable issue of fact did not exist.

We share the motion judge's observation that plaintiff may well be comparatively at fault here for choosing to stand in the backyard while the three unleashed dogs ran around. However, that discrete question is for the jury's ultimate assessment.

Reversed and remanded for trial.