We all remember the old common law rule that every dog gets one free bite, with the bite putting the owner on notice of the dog’s anti-social tendencies. In today’s more crowded world, where both dogs and pedestrians have proliferated and frequently mingle, the applicable law has become more complex. While some states still follow the one-bite rule, the North Carolina General Assembly has imposed strict liability on the owner of a “dangerous dog” that injures a person or damages property. N.C.G.S. 67-4.4.
Pertinent to this post, N.C.G.S. 67-4.5 also allows a city or county to set up its own program for dealing with miscreant dogs. The Court of Appeals recently addressed such ordinances in Parker v. Colson, et. al. COA18-145.
In this case, the three defendants are all siblings. Though none of them live in Wadesboro, defendants Barbara and Vickie own adjacent lots in that town. An unoccupied house stood on each lot. The sisters allowed access to their brother Henry, who raised pit bull puppies on the lots. When in town, Barbara would feed and water the dogs being kept on her lot. During one of Barbara’s visits, she let two dogs out of their enclosure on her property. They attacked and bloodied plaintiff’s brother, who was walking nearby.
About a month later, Henry was visiting his dogs when they ran from Barbara’s property and attacked plaintiff Terry Parker, inflicting injuries that required almost two weeks of hospitalization and left his legs permanently injured. Plaintiff brought suit based on strict liability and negligence per se. The trial court allowed summary judgment for plaintiff on his claims of negligence per se as to Henry and Vickie, but also granting summary judgment for defendant Barbara, dismissing all of plaintiff’s claims as to her. Plaintiff appealed.
In part, plaintiff’s suit relied upon three Wadesboro ordinances. The Court of Appeals addressed each. Ordinance 4-4 made it unlawful for anyone to “keep or cause to be kept” any vicious animal unless confined or under restraint. Harking back to the common law rule, Ordinance 4-1 defined a “vicious animal” as one that has made an attack. The Court of Appeals determined as a matter of law that Ordinance 4-4 is a public safety ordinance and that plaintiff was among those intended to be protected by the ordinance.
Although Barbara argued that she was not an owner or keeper of the dogs, the Court of Appeals noted that the Ordinance’s sweep included those who caused the dogs to be kept, then found that there was a genuine issue of fact whether Barbara fell within that language in light of evidence that the dogs’ food was stored in her unoccupied Wadesboro house, the dogs were watered there, and kept cool there during summer months. In addition, Barbara would sometimes tend to the dogs when she was in Wadesboro so that Henry did not have to travel from his Charlotte home to take care of these chores. Accordingly, the Court of Appeals held that the trial court erred when it granted Barbara’s motion for summary judgment as to plaintiff’s negligence per se claim.
Next, the Court of Appeals considered Wadesboro Ordinance 4-7, which requires any dog to be restrained when away from the premises of its owner. Concluding that this Ordinance was also a public safety ordinance, the Court nevertheless found that plaintiff failed to forecast evidence that Barbara violated the Ordinance. The day plaintiff was injured, Henry was tending the dogs and Barbara was nowhere around. Therefore the trial court did not err in allowing summary judgment for Barbara on this issue.
Finally, Ordinance 4-31 requires that the custodian of every animal be responsible for the behavior of the animal. The Court determined that this Ordinance did not impose a specific duty of care on any custodian so, as a result, there could be no breach to constitute negligence per se. Summary judgment for Barbara as to this Ordinance was appropriate.
The Court of Appeals then considered plaintiff’s other theory, whether a landowner could be held responsible on the basis of premises liability for injuries inflicted by a dog. Citing Holcomb v. Colonial Assoc. L.L.C., 538 N.C. 501, 597 S.E.2d 710 (2004), the Court determined that the question raised by such a suit is whether the landlord had sufficient control to remove the danger posed by a tenant’s pet. The dogs escaped from Henry’s custody while on Vickie’s property. No evidence indicated that adjacent landowner Barbara had sufficient control to forestall the dangers presented by Henry’s dogs. As a result, the Court of Appeals concluded that the trial court correctly granted Barbara’s motion to dismiss plaintiff’s premises liability claim.
While this case unleashes no new law regarding liability arising from pets and commerce in domestic animals, it illustrates the responsibilities that owners of animals assume. Henry’s dogs had previously shown their vicious tendencies, depriving him of any viable defense when he failed to prevent them from running away a second time. Pets are great, but in the context of owning one (except maybe a goldfish), the term “caretaker” has multiple meanings.