Recent Articles from Rosensteel Fleishman, PLLC
I. OVERVIEW
Presently the law in North Carolina divides dog bite claims in three categories, (A) common law negligence See Willains v. Tysinger , 328 N.C. 55, 399 S.E.2d 108(1991) (B) common law strict liability See Sellers v. Morries , 233 N.C. 560, 64 S.E.2 nd 662(1951) and (C) statutory strict liability.
II. COMMON LAW NEGLIGENCE
Hill v. Willaims , 144 N.C.App 45, 547 S.E.2d 472 (2001) (Review denied 354 N.C. 217, 557 S.E.2d 531 N.C. 2001).
In Hill, plaintiff, a tradesmen, was attacked by defendants Rottweiler, Rowdy, while working on defendant's home. The Court stated that:
[i] nitially, we note this Court has observed that "not all actions seeking recovery for damage caused by a domestic animal need involve the vicious propensity rule," Griner v. Smith , 43 N.C. App 400, 259 S.E.2d 383 (1979), generally described as a strict liability type of determination relying upon "proof of vicious propensity and knowledge by the owner." Id. At 406, 259 S.E.2 nd at 387. The negligence of defendants as owners of Rowdy was not premised upon their knowledge of the dog's vicious propensities; that claim was dismissed by the trial court and plaintiffs have not cross- appealed. Rather, for purposes of plaintiffs' negligence claim, defendants, "as owners of [Rowdy], [we]re 'chargeable with the knowledge of the general propensities,' " id. At 60, 399 S.E.2n at 111 (quoting Griner , 43 N.C. App. 400, 407, 259 S.E.2d 383, 388), of the Rottweiler animal." Id , 144 N.C.App at 55-56 547 S.E.2d at 478.
III. COMMON LAW STRICT LIABILITY
The North Carolina Supreme Court has addressed the issue of strict liability for one's domestic animal numerous times over the past century.
Swain v. Tillett , 269 N.C. 46, 152 S.E.2d 297 (1967)
In Swain the plaintiff was injured by the defendants domesticated deer. The Court stated that, "t he gravamen of the cause of action in this event is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness; and thus both viciousness and scienter are indispensable elements to be averred and proved." Id. , 269 N.C. 46, 51, 152 S.E.2d 297 301.
The Court also addressed the issue of notice to and between the owners and keepers. The Court stated, "the custody of a vicious animal is the custody of all joint keepers; and they are all jointly liable for the damage done by it. And, by the same reasoning, notice to one joint keeper is notice to all such." Id. 269 N.C. at 53, 152 S.E.2d at 303.
The Court went on to state "the knowledge required to hold the owner of an animal, possessed of vicious characteristics, responsible for injuries inflicted on another, need not be intimate personal knowledge. Scienter may be sufficiently established by proof of knowledge on the part of those to whose care and management animals are entrusted as such knowledge is in law imputable to the owner." Id. 269 N.C. at 53, 152 S.E.2d at 303.
IV. STATUTORY STRICT LIABILITY
Lee v. Rice 154 N.C.App. 471, 572 S.E.2d 219 (2002)
In Lee Plaintiff was injured by Defendant's pit bull. The Lee Court stated, "n othing else appearing, the keeper of a vicious animal is liable for injuries inflicted by it upon another. Section 67-4.4 of our General Statutes moreover provides that "[t]he owner of a dangerous dog shall be strictly liable in civil damages for any injuries or property damage the dog inflicts upon a person, his property, or another animal." N.C. Gen. Stat §67-4.4 (2001). Under section 67-4.1, an owner is defined as "any person or legal entity that has a possessory property right in a dog." N.C. Gen. Stat. §67-4.1(a)(3) 2001.
§ 67-4.2. Precautions against attacks by dangerous dogs
• It is unlawful for an owner to:
• Leave a dangerous dog unattended on the owner's real property unless the dog is confined indoors, in a securely enclosed and locked pen, or in another structure designed to restrain the dog;
• Permit a dangerous dog to go beyond the owner's real property unless the dog is leashed and muzzled or is otherwise securely restrained and muzzled.
• If the owner of a dangerous dog transfers ownership or possession of the dog to another person (as defined in G.S. 12-3(6) ), the owner shall provide written notice to:
• The authority that made the determination under this Article, stating the name and address of the new owner or possessor of the dog; and
• The person taking ownership or possession of the dog, specifying the dog's dangerous behavior and the authority's determination.
• Violation of this section is a Class 3 misdemeanor.
§ 67-4.4. Strict liability
The owner of a dangerous dog shall be strictly liable in civil damages for any injuries or property damage the dog inflicts upon a person, his property, or another animal.
§ 67-4.1. Definitions and procedures
(a) As used in this Article, unless the context clearly requires otherwise and except as modified in subsection (b) of this section, the term:
• "Dangerous dog" means
• A dog that:
1. Without provocation has killed or inflicted severe injury on a person; or
2. Is determined by the person or Board designated by the county or municipal authority responsible for animal control to be potentially dangerous because the dog has engaged in one or more of the behaviors listed in subdivision (2) of this subsection.
• Any dog owned or harbored primarily or in part for the purpose of dog fighting, or any dog trained for dog fighting.
• "Potentially dangerous dog" means a dog that the person or Board designated by the county or municipal authority responsible for animal control determines to have:
• Inflicted a bite on a person that resulted in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization; or
b. Killed or inflicted severe injury upon a domestic animal when not on the owner's real property; or
c. Approached a person when not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack.
(3) "Owner" means any person or legal entity that has a possessory property right in a dog.
(4) "Owner's real property" means any real property owned or leased by the owner of the dog, but does not include any public right-of-way or a common area of a condominium, apartment complex, or townhouse development.
(5) "Severe injury" means any physical injury that results in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization.
(b) The provisions of this Article do not apply to:
(1) A dog being used by a law enforcement officer to carry out the law enforcement officer's official duties;
(2) A dog being used in a lawful hunt;
(3) A dog where the injury or damage inflicted by the dog was sustained by a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog; or
(4) A dog where the injury inflicted by the dog was sustained by a person who, at the time of the injury, was committing a willful trespass or other tort, was tormenting, abusing, or assaulting the dog, had tormented, abused, or assaulted the dog, or was committing or attempting to commit a crime.
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