Opinion
No. COA01-932
Filed 18 June 2002
Animals — domestic animal — motion for directed verdict — motion for judgment notwithstanding verdict
The trial court erred in a negligence case arising out of alleged injuries caused by defendants' dog by denying defendants' motions for a directed verdict and judgment notwithstanding the verdict, and by awarding plaintiff $20,000 in damages, because although plaintiff presented evidence that upon entering defendants' greenhouse defendants' dog jumped on her, knocked her down, and then proceeded to lick her face, plaintiff presented no evidence regarding either the dog's breed, its general habits, character or propensities, or any past similar conduct by the dog.
Judge TIMMONS-GOODSON dissenting.
Appeal by defendants from judgment filed 28 February 2001 by Judge Ronald L. Stephens in Alamance County Superior Court. Heard in the Court of Appeals 23 April 2002.
Hemric, Lambeth, Champion Moseley, P.A., by W. Phillip Moseley, for plaintiff-appellee. Teague, Rotenstreich Stanaland, L.L.P., by Stephen G. Teague, for defendant-appellants.
James A. Stadler, individually, and James A. Stadler d/b/a Stadler Greenhouses (collectively, Defendants) appeal a judgment filed 28 February 2001 denying Defendants' motions for a directed verdict and judgment notwithstanding the verdict and awarding Pauline T. Slade (Plaintiff) $20,000.00 in damages.
On 8 October 1999, Plaintiff filed a complaint alleging Defendants were negligent in failing to restrain their dog and warn of its dangerous propensities. The complaint sought compensatory and punitive damages for injuries caused by Defendants' dog. Plaintiff stated in her complaint that upon arriving at Defendants' greenhouse to buy flowers, a "large dog" owned by Defendants "jumped onto her," knocked her down, and then "stood over Plaintiff growling at her." The evidence at trial, however, revealed that although the dog jumped on Plaintiff and knocked her down, the dog did not growl, bark, bare its teeth, or try to bite Plaintiff. Instead, it simply licked her face. While the evidence indicated the dog had white and black spots, there was no testimony regarding the dog's breed. Furthermore, the evidence was silent as to the dog's general character, habits or propensities, any prior similar conduct by the dog, the length of time it had been owned by Defendants, or whether Defendants had any reason to know that the dog posed a danger to others.
At the close of Plaintiff's evidence, Defendants moved for a directed verdict. The trial court denied this motion. Defendants presented no evidence and renewed their motion for a directed verdict at the close of all the evidence, which the trial court again denied. The issue of damages was submitted to the jury and Plaintiff was awarded $20,000.00. Defendants moved for a judgment notwithstanding the verdict, and the trial court denied their motion.
The dispositive issue is whether Plaintiff's evidence was insufficient as a matter of law to support a verdict in her favor.
In a negligence action against an owner of a domestic animal, the test for liability is whether the owner knew or should have known from the animal's past conduct, including acts evidencing a vicious propensity, or the general propensities exhibited by this type of animal "that [the animal] 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." Hunnicutt v. Lundberg, 94 N.C. App. 210, 211, 379 S.E.2d 710, 711-12 (1989); see Hill v. Williams, 144 N.C. App. 45, 54, 547 S.E.2d 472, 478 ("`owner of a domestic animal is chargeable with knowledge of the general propensities of certain animals and he must exercise due care to prevent injury from reasonably anticipated conduct'"), disc. review denied, 354 N.C. 217, 557 S.E.2d 531 (2001); Griner v. Smith, 43 N.C. App. 400, 406-07, 259 S.E.2d 383, 388 (1979) (discussing vicious propensity rule). In other words, the liability of the owner depends upon his negligence in failing to confine or restrain his animal or otherwise warn of its propensities. See Hunnicutt, 94 N.C. App. at 211, 379 S.E.2d at 712. The type, "size, nature, and habits of the [animal], known to the owner, are all circumstances to be taken into account in determining whether the owner was negligent." Id.
In this case, Plaintiff presented evidence that upon entering Defendants' greenhouse, Defendants' dog jumped on her, knocked her down and then proceeded to lick her face. Plaintiff, however, presented no evidence regarding either the dog's breed, its general habits, character or propensities, or any past similar conduct by the dog. Accordingly, Plaintiff's evidence was insufficient as a matter of law to support a verdict in her favor, see Hill, 144 N.C. App. at 54, 547 S.E.2d at 477, and a directed verdict should have been entered for Defendants. Accordingly, the judgment in favor of Plaintiff is vacated and a judgment for Defendants is entered.
We note that the dissent's analysis is based on a characterization of Defendants' dog as "an untrained puppy." There is, however, no evidence in the record that the dog was untrained. Furthermore, even if this characterization were substantiated by the evidence, it is of no legal significance.
Reversed.
Judge HUNTER concurs.
Judge TIMMONS-GOODSON dissents.