Opinion
No. COA11–601.
2012-07-17
Hazel Mae STARCHER, Plaintiff v. Wilma Lee KEA, Defendant.
Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Brett Dressler, for plaintiff-appellant. S. Reginald Kenan, for defendant-appellee.
Appeal by plaintiff from order entered 7 January 2011 by Judge W. Allen Cobb, Jr. in Duplin County Superior Court. Heard in the Court of Appeals 24 May 2012. Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Brett Dressler, for plaintiff-appellant. S. Reginald Kenan, for defendant-appellee.
CALABRIA, Judge.
Hazel Mae Starcher (“plaintiff”) appeals from an order granting Wilma Lee Kea's (“defendant”) motion for summary judgment. We affirm.
I. Background
On 22 February 2007, plaintiff was attacked by three dogs while riding her bicycle on Pope Road in Rose Hill, North Carolina. The dogs came across the road, pulled her from her bicycle, and bit her legs multiple times.
The dogs approached plaintiff from a field near defendant's property. Plaintiff had never met defendant or seen the dogs before, despite previously biking on this road. Defendant's father transferred the property located at 449 Pope Road, along with two or three dogs who lived on the property, to defendant in 2006. Although defendant fed the dogs, she did not know their breed. In deposition testimony, defendant claimed that she had never personally owned a dog. She additionally testified that she considered her father's dogs to be wild animals and thus, did not keep the dogs in her house. Defendant also testified that she did not believe the dogs that attacked plaintiff were her father's dogs.
On 10 October 2008, plaintiff initiated a negligence action against defendant in Duplin County Superior Court alleging that she had sustained serious physical injuries, which required medical treatment, from three Labrador Retrievers. On 25 May 2010, defendant filed a motion for summary judgment. After a hearing, the trial court entered an order on 7 January 2011 granting defendant's motion for summary judgment. Plaintiff appeals.
II. Summary Judgment
Plaintiff argues that the trial court erred in granting defendant's motion for summary judgment. We disagree.
When reviewing an order of summary judgment, the standard of review is de novo. Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2011). “All facts asserted by the adverse party are taken as true, and their inferences must be viewed in the light most favorable to that party.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citations omitted).
In a negligence action, the plaintiff must demonstrate “(1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff's injury; and (3) a person of ordinary prudence should have foreseen that plaintiff's injury was probable under the circumstances.” Lavelle v. Schultz, 120 N.C.App. 857, 859–60, 463 S.E.2d 567, 569 (1995) (citations omitted). In order to recover for injuries from a domestic animal, the plaintiff must show “(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal's vicious propensity, character, and habits.” Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663 (1951).
The test of the liability of the owner of the dog is, therefore, not the motive of the dog but whether the owner should know from the dog's past conduct that he is likely, if not restrained, to do an act from which a reasonable person, in the position of the owner, could foresee that an injury to the person or property of another would be likely to result.
Sink v. Moore, 267 N.C. 344, 350, 148 S.E.2d 265, 270 (1966).
Plaintiff contends that defendant's reference in her deposition to the dogs as “wild” and the fact that the dogs were kept outdoors demonstrated defendant's knowledge that the animals had dangerous propensities. However, even assuming, arguendo, that plaintiff's evidence established that the dogs which attacked her belonged to defendant and that these dogs possessed a vicious propensity, defendant's testimony was insufficient to show that defendant knew or should have known of the dogs' viciousness.
In Ray v. Young, the plaintiff filed a complaint against the defendants for injuries inflicted by the defendants' cat. 154 N.C.App. 492, 494, 572 S.E.2d 216, 218 (2002). The cat had previously bitten the defendants as well as a third party. Id. at 493, 572 S.E.2d at 218. This Court affirmed the trial court's grant of summary judgment in favor of the defendants, stating that “[a]lthough plaintiff presented some evidence tending to show that [the cat] had bitten or scratched people in play, plaintiff offered no evidence of any previous behavior by [the cat] that would indicate his propensity to attack plaintiff.” Id. at 495, 572 S.E.2d at 219.
In Harris v. Barefoot, the plaintiff was delivering mail when she was attacked by two dogs that came from the defendants' house. 206 N.C.App. 308, 309, 704 S.E.2d 282, 282–83 (2010). The trial court granted the defendants' motion for summary judgment, and the plaintiff appealed. Id. The plaintiff presented expert testimony that tethering a dog for a long period, as the defendants had done, often results in a dog being “more aggressive than it otherwise would have been.” Id. at 311, 704 S.E.2d at 284. The expert, however, did not examine the actual dog that attacked the plaintiff or speak to anyone who had firsthand knowledge about the dog. Id. Therefore, this Court held that “this evidence does not tend to show that [the dog] possessed a vicious propensity.” Id.
In the instant case, plaintiff presented even less evidence than the evidence found to be insufficient in Ray and Harris. Plaintiff presented no evidence that the dogs which attacked plaintiff had previously attacked anyone else. Furthermore, plaintiff offered no evidence that keeping the dogs outdoors caused any aggression or indicated any prior aggression. Ultimately, a single reference to the dogs as “wild” in defendant's deposition does not indicate knowledge of the dogs' viciousness without evidence of any prior instances of vicious conduct. Defendant's testimony shows, at best, that defendant did not know the dispositions of the dogs. Therefore, the trial court did not err in granting defendant's motion for summary judgment. This argument is overruled.
III. Conclusion
The trial court did not err in granting defendant's motion for summary judgment because plaintiff did not present any evidence that defendant knew that the dogs which attacked plaintiff possessed dangerous propensities. The trial court's order is affirmed.
Affirmed. Judges STROUD and MCCULLOUGH concur.
Report per Rule 30(e).