SONYA RAY,
Plaintiff,
v
.
CECELIA WHITLEY YOUNG and RANDALL YOUNG,
Defendants.
Anderson Korzen & Associates, P.C., by John J. Korzen, and
Hardison & Leone, L.L.P., by Elizabeth A. Leone, for plaintiff
appellant.
Bailey & Dixon, L.L.P., by Patricia P. Kerner, for defendant
appellees.
TIMMONS-GOODSON, Judge.
Sonya Ray (“plaintiff”) appeals from an order of the trial
court granting summary judgment in favor of plaintiff's sister,
Cecelia Whitley Young, and her husband, Randall Young
(“defendants”). For the reasons stated herein, we affirm the order
of the trial court.
On 15 September 2000, plaintiff filed a complaint in Johnston
County Superior Court seeking compensation for injuries inflicted
by defendants' cat, “Charlie.” The complaint alleged that Charlie
exhibited vicious propensities, and that defendants were aware of
such propensities. Plaintiff charged defendants with negligence in
failing to take adequate precautions to ensure plaintiff's safety
while she was a lawful visitor at defendants' residence. Defendants thereafter filed a motion for summary judgment pursuant
to Rule 56 of the North Carolina Rules of Civil Procedure, which
motion came before the trial court on 13 August 2001.
At the summary judgment hearing, the evidence before the trial
court tended to show the following: In early December 1998,
plaintiff cared for defendants' dog at her home while defendants
were out of town. Defendants did not ask plaintiff to take care of
Charlie. On the evening of 6 December 1998, plaintiff returned the
dog to defendants' residence. After entering the residence,
plaintiff noticed Charlie behind her, “hissing with his back
hunched up.” Charlie then growled and bit plaintiff on the back of
her left ankle. When plaintiff reached down to assess the damage
to her ankle, the cat bit her left hand. Because the cat would not
release plaintiff's hand, plaintiff “knocked [Charlie] up against
the wall with [her] hand in his mouth,” whereupon Charlie initially
released his grip, but immediately bit plaintiff in the hand once
more. Plaintiff knocked the cat against the wall twice more, and
Charlie ended his attack. As a result of this attack, plaintiff
suffered considerable injury to her left hand.
Plaintiff presented further evidence tending to show that
Charlie had bitten both defendants on past occasions, as well as a
third individual, Mr. J. D. Denson. Plaintiff also testified that
Charlie acted aggressively towards defendants' dog and other large
dogs. Finally, plaintiff asserted that Charlie suffered from a
“compulsive behavioral disorder” for which he had previously been
medicated. Defendants denied plaintiff's characterization of Charlie as
a vicious cat, asserting that his attack upon plaintiff was
completely unprecedented and therefore unforeseeable. Defendants
presented evidence tending to show that, although Charlie
occasionally bit or scratched them while playing, he had never
exhibited aggressive behavior of the magnitude experienced by
plaintiff. Mr. Denson, the individual identified by plaintiff as
having been scratched by Charlie on one occasion, submitted an
affidavit asserting that the scratch was superficial and occurred
in the course of playing with Charlie.
Defendants also submitted testimony by Charlie's treating
veterinarian, Dr. Betsy Sigmon. Dr. Sigmon testified that
Charlie's medical records revealed no history of aggression. Dr.
Sigmon further described Charlie's history of compulsive behavioral
disorder, which had caused him to ingest foreign objects on several
occasions, requiring surgery. Dr. Sigmon noted that cats with
compulsive disorders “just have to have a lot of attention, a lot
of activity. Without that, without [having] constantly something
to do, very commonly they're seen for obstructions of their
intestines from eating stuff they shouldn't.” Dr. Sigmon initially
prescribed an antidepressant for Charlie's behavior, but later
approved of his removal from the medication because a high-fiber
diet appeared to effectively control Charlie's symptoms.
After considering all of the evidence and arguments by
counsel, the trial court granted summary judgment in favor of
defendants and dismissed plaintiff's action with prejudice. Fromthis order, plaintiff appeals.
___________________________________________________
The sole issue on appeal is whether the trial court erred in
granting summary judgment to defendants. 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) (2001); Joslyn
v. Blanchard, 149 N.C. App. 625, 628, 561 S.E.2d 534, 536 (2002).
Summary judgment is properly granted where the pleadings and proof
disclose that no cause of action exists. See Joslyn, 149 N.C. App.
at 628, 561 S.E.2d at 536.
In order to recover at common law for injuries inflicted by a
domestic animal, a 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 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)).
If the plaintiff establishes that an animal is in factvicious, the plaintiff must then demonstrate that the owner knew or
should have known of the animal's dangerous propensities. See Sink
v. Moore and Hall v. Moore, 267 N.C. 344, 350, 148 S.E.2d 265, 270
(1966).
The test of the liability of the owner of the
[animal] is . . . not the motive of the
[animal] but whether the owner should know
from the [animal'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.
Id. In order to determine whether the owner of the animal is
negligent, the size, nature, and habits of the animal are taken
into account. See id.
In the instant case, plaintiff failed to establish that
Charlie exhibited vicious propensities in the past, or that
defendants had any reason to suspect that their cat might attack
plaintiff. Although plaintiff presented some evidence tending to
show that Charlie had bitten or scratched people in play, plaintiff
offered no evidence of any previous behavior by Charlie that would
indicate his propensity to attack plaintiff. Regarding a cat's
tendency to scratch or bite while playing, Dr. Sigmon verified the
common knowledge that, “Cats have claws. Cats have teeth. [The
fact that a cat may scratch or bite during play] is one of the
possibilities whenever you have a mammal in your possession.”
Moreover, although plaintiff argues that defendants had a duty
to inform her that Charlie was no longer taking his antidepressant
medication at the time he attacked plaintiff, she failed to presentany evidence linking the cessation of the medication, or Charlie's
compulsive disorder, with the attack. All of the evidence tended
to show that the cat's behavioral disorder caused him to ingest
foreign objects, and that the medication was aimed at preventing
this behavior. There was no credible evidence to suggest that
Charlie's disorder made him aggressive, or that ending the
medication would cause Charlie to attack someone. Dr. Sigmon
furthermore testified that Charlie's condition was being
effectively treated through a high-fiber diet.
Because there were no genuine issues of material fact
concerning the cat's vicious propensity and defendants' knowledge
thereof, the trial court properly granted summary judgment in favor
of defendants. The order of the trial court is hereby
Affirmed.
Judges HUDSON and CAMPBELL concur.
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