JUSTIN D. JOSLYN, a minor, by and through his GUARDIAN AD LITEM,
CAROL JOSLYN,
Plaintiff,
v
.
DELMER BLANCHARD and wife, UNA MAY BLANCHARD, WILLIAM LEWIS and
wife, BARBARA LEWIS,
Defendants.
Ayers & Haidt, P.A., by James M. Ayers, II, for plaintiff
appellee.
Wallace, Morris & Barwick, P.A., by P.C. Barwick, Jr., and
Elizabeth A. Heath, for defendant appellants William and
Barbara Lewis.
TIMMONS-GOODSON, Judge.
Plaintiff appeals from the order of the trial court granting
summary judgment in favor of defendants William and Barbara Lewis.
For the reasons set forth herein, we affirm the judgment of the
trial court.
The facts pertinent to the present appeal are as follows: On
8 March 2000, Carol Joslyn filed a complaint in Craven County
Superior Court on behalf of her minor son, Justin D. Joslyn
(plaintiff). The complaint alleged that plaintiff suffered
serious injury when he was bitten in the face by a dog belonging to
Delmer and Una May Blanchard (the Blanchards). According to the
complaint, the injury occurred when the seven-year-old plaintiffaccompanied his father to the Blanchard residence. Plaintiff
entered the back yard of the Blanchard residence through an open
gate in the fence surrounding the property. Plaintiff approached
the Blanchard's dog, which was chained within the fence, and was
bitten.
At the time of the incident, the Blanchards rented their
residence from William and Barbara Lewis (defendants). The
complaint alleged negligence on defendants' part in that they were
aware of the violent nature of Defendant Blanchard's dog and w[ere]
very cautious when around the dog[,] but nevertheless allowed the
Blanchards to keep the dog on the property.
Defendants thereafter filed a motion for summary judgment,
which was heard by the trial court on 6 November 2000. Finding no
genuine issues as to any material fact, the trial court concluded
that defendants were entitled to judgment as a matter of law and
therefore granted summary judgment in favor of defendants. From
this order, plaintiff appeals.
___________________________________________________
The sole issue on appeal is whether the trial court properly
granted summary judgment in favor of defendants. For the reasons
stated herein, we conclude that summary judgment was properly
granted, and we therefore affirm the trial court.
We note initially that plaintiff's appeal is interlocutory, as
it does not dispose of the case, but instead leaves it for further
action by the trial court in order to settle and determine the
entire controversy. See Veazey v. Durham, 231 N.C. 357, 361-62, 57S.E.2d 377, 381 (1950); see also Cook v. Bankers Life and Casualty
Co., 329 N.C. 488, 490-91, 406 S.E.2d 848, 850 (1991) (noting that
the granting of summary judgment in favor of one defendant does not
finally determine all of the claims in the case and is thus an
interlocutory order). We do not generally review interlocutory
appeals. See Veazey, 231 N.C. at 362, 57 S.E.2d at 382. Under the
provisions of sections 1-277(a) and 7A-27(d) of the North Carolina
General Statutes, however, an appeal of right lies from an
interlocutory order affecting a substantial right of the parties.
N.C. Gen. Stat. §§ 1-277(a), 7A-27(d) (1999). In Green v. Duke
Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982), our Supreme Court
stated that 'the right to avoid the possibility of two trials on
the same issues can be such a substantial right.' Id. at 606, 290
S.E.2d at 595 (quoting Survey of Developments in North Carolina
Law, 1978, 57 N.C.L. Rev. 827, 907-08 (1979)).
This general proposition is based on the
following rationale: when common fact issues
overlap the claim appealed and any remaining
claims, delaying the appeal until all claims
have been adjudicated creates the possibility
the appellant will undergo a second trial of
the same fact issues if the appeal is
eventually successful. This possibility in
turn creat[es] the possibility that a party
will be prejudiced by different juries in
separate trials rendering inconsistent
verdicts on the same factual issue.
Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25, 376 S.E.2d
488, 491 (quoting Green, 305 N.C. at 608, 290 S.E.2d at 596), disc.
review denied, 324 N.C. 577, 381 S.E.2d 772 (1989).
In the instant case, we conclude that plaintiff's appeal
affects a substantial right because of the possibility ofinconsistent verdicts. Plaintiff's claims arise over possible
negligence by the Blanchards and by defendants. In their answer to
plaintiff's complaint, defendants have reserved the defense of
contributory negligence by plaintiff. It is conceivable that in a
proceeding against the Blanchards alone, the jury could find that
plaintiff was contributorily negligent. If, in an appeal from that
verdict, plaintiff renews his appeal of the dismissal of
defendants, and we were to conclude that the dismissal was
improperly granted, then a second trial would be required as
against defendants. It is possible that at the second trial, a
jury could find that plaintiff was not contributorily negligent,
thus resulting in inconsistent verdicts on the same factual issue.
See Hoots v. Pryor, 106 N.C. App. 397, 402, 417 S.E.2d 269, 273
(concluding that an appeal from summary judgment granted in favor
of one defendant in a negligence suit involving multiple defendants
implicated plaintiff's substantial right to avoid the possibility
of two trials on the same issue where contributory negligence on
the part of plaintiff was alleged), disc. review denied, 332 N.C.
345, 421 S.E.2d 148 (1992).
As we determine that there is a possibility of inconsistent
verdicts if the case at bar were to be tried in two separate
proceedings, we conclude that plaintiff's appeal of summary
judgment in favor of defendants is not premature and should not be
dismissed. We therefore address the merits of plaintiff's appeal.
Plaintiff argues that the trial court improperly granted
summary judgment in favor of defendants. Plaintiff asserts thatthere exists a genuine issue of material fact as to defendants'
knowledge of the vicious propensities of the dog and the degree of
control defendants exercised over the property.
Summary judgment is proper where 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) (1999);
Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615
(1980). Where the pleadings and proof disclose that no cause of
action exists, summary judgment is properly granted. See Kessing
v. Mortgage Corp., 278 N.C. 523, 534-35, 180 S.E.2d 823, 830
(1971).
In order to recover at common law for injuries inflicted by a
domestic animal, a plaintiff must show both (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 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[.]' Swain
v. Tillett, 269 N.C. 46, 51, 152 S.E.2d 297, 301 (1967) (quoting
Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458, 460
(1947)). Thus, liability for injuries inflicted by animals does
not depend upon the ownership of the animal, 'but the keeping andharboring of an animal, knowing it to be vicious.' Id. at 52, 152
S.E.2d at 302 (quoting Hunt v. Hazen, 197 Ore. 637, 639, 254 P.2d
210, 211 (1953)).
The owner of an animal is the person to whom it belongs. See
id. at 51, 152 S.E.2d at 302. A keeper is one who, either with or
without the owner's permission, undertakes to manage, control, or
care for the animal as owners in general are accustomed to do.
Id. Nothing else appearing, the keeper of a vicious animal is
liable for injuries inflicted by it upon another. See id. at 52,
152 S.E.2d at 302.
In Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1 (1970),
the minor plaintiff filed suit against a landlord and his wife in
order to recover for injuries she sustained after being thrown from
a horse owned by the defendants' tenant. In her complaint, the
plaintiff alleged that the horse was cared for, stabled and used
as a riding horse by the defendants . . . ; that the horse was
dangerous and vicious and these traits were known to defendants;
that defendants failed to exercise due care by allowing the horse
to be wrongfully kept on their premises . . . ; and that
plaintiff's injuries were proximately caused by defendants'
negligence. Id. at 23-24, 178 S.E.2d at 2. The trial court
subsequently denied the defendants' motion for summary judgment,
and the defendants appealed to this Court.
Reversing the trial court, the Patterson Court concluded that
the plaintiff had failed to show that she can offer any competent
evidence to prove that the defendants were the 'keepers' of theanimal here involved. Id. at 29, 178 S.E.2d at 6. Because the
defendants did not manage, control, or care for the horse, the
plaintiff had failed to prove an essential element of her claim.
The Court also concluded that the plaintiff had failed to show that
the defendants knew or should have known of any vicious
propensities of the animal. The Court therefore held that the
trial court erred in denying the defendants' motion for summary
judgment.
In the case sub judice, plaintiff has produced even less
evidence than the plaintiff in Patterson that defendants managed,
controlled or cared for the dog that injured plaintiff.
Plaintiff's complaint and supporting affidavits contain no
allegations whatsoever to support any connection between defendants
and the dog, beyond the fact that they permitted the Blanchards to
keep the dog on the property. As such, plaintiff has failed to
prove that defendants were the keepers of the animal here
involved, as defined by our Supreme Court in Swain. See Swain, 269
N.C. at 51, 152 S.E.2d at 302.
Plaintiff further argues that defendants are strictly liable
under section 67-4.4 of our General Statutes, which 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 (1999). 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) (1999). Plaintiff hasproduced no evidence that defendants have any type of possessory
property right in the dog that injured plaintiff. Plaintiff's
argument that defendants are strictly liable under the North
Carolina General Statutes is therefore without merit.
Plaintiff having failed to show that there is a genuine issue
of material fact, we hold that the trial court correctly granted
defendants' motion for summary judgment. The order of the trial
court is hereby
Affirmed.
Judges MARTIN and BRYANT concur.
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