SHERRY LEE,
Plaintiff,
v
.
EARL RICE and MARTHA RICE, CYNTHIA MEADOWS and MICHAEL LANDIS
a/k/a BOBBY LANDIS,
Defendants.
Cogburn, Goosmann, Brazil & Rose, P.A., by Patricia L. Arcuri,
for plaintiff appellee.
Frank J. Contrivo, P.A., by Andrew J. Santaniello, for
defendant appellants.
TIMMONS-GOODSON, Judge.
Earl Rice (“Rice”) and his wife, Martha Rice (collectively,
“defendants”), appeal from judgment entered upon a jury verdict
finding them liable for injuries inflicted upon Sherry Lee
(“plaintiff”) by a pit bull dog. Defendants also appeal an order
of the trial court denying their motions for a new trial and for
judgment notwithstanding the verdict. For the reasons set forth
herein, we vacate the judgment of the trial court.
On 28 January 2000, plaintiff filed a complaint in Buncombe
County Superior Court, alleging that a pit bull dog known as
“Blockhead” had attacked plaintiff and her dog on plaintiff's
property. The complaint averred that defendants were the owners orkeepers of the pit bull, and that the dog exhibited vicious
propensities which were known to defendants. The complaint further
alleged that Blockhead was a dangerous dog as defined by the North
Carolina General Statutes, and that defendants failed to take
adequate steps to ensure plaintiff's safety. On 6 June 2000,
plaintiff amended her complaint to include as defendants Rice's
adult son, Michael Landis (“Landis”) and his girlfriend, Cynthia
Meadows (“Meadows”). According to the amended complaint, the pit
bull belonged to Meadows and Landis, who lived in a house owned by
defendants. As neither Landis nor Meadows ever responded to the
complaint in any manner, default judgment was entered against them.
Plaintiff's case came before a jury on 17 and 18 April 2001,
at which time the following evidence was presented: Rice testified
that he and his wife Martha lived at 16 Mildred Avenue in
Asheville, North Carolina. They also owned the adjacent house and
property located at 20 Mildred Avenue, where Landis lived with his
girlfriend, Meadows. A single fence enclosed both properties.
Landis and Meadows owned three dogs, including Blockhead. The dogs
were normally kept inside a smaller kennel located on the side of
the property occupied by Landis and Meadows, but they occasionally
ran freely within the larger fenced area. Rice testified that he
was aware that Blockhead had escaped from the property on several
occasions, and that the dog had been involved in several
altercations with other dogs in the neighborhood. Although Rice
told his son that “he needed to get rid of the dogs,” Landis
disregarded this advice. Defendant Martha Rice gave similartestimony.
Plaintiff testified that she lived at 31 Mildred Avenue in
Asheville, and that she owned a mixed breed dog named “Shorty.” On
10 October 1999, plaintiff was in her backyard when she “heard what
sounded like a car wreck” in her front yard. Plaintiff ran to the
front of her yard, where she “saw this man on top of this huge dog,
and [the dog] had Shorty by the throat.” Plaintiff identified
Blockhead as the attacking dog. Plaintiff then “grabbed a stick
and . . . just started hitting the dog.” As plaintiff attempted to
rescue her dog, Blockhead bit her ankle and hand, resulting in the
eventual amputation of the tip of her finger. Responding officers
from the police and fire departments managed to release Shorty from
Blockhead's grip. As a result of the attack, Shorty sustained
serious injuries requiring intensive veterinary treatment,
including surgery. Plaintiff testified that, because of this
incident, she was now “deathly afraid of dogs[.]” Upon the close
of plaintiff's evidence, defendants moved for a directed verdict,
which the trial court denied.
Upon considering the evidence, the jury found that plaintiff
had been injured by a vicious animal wrongfully kept by defendants,
and that plaintiff was entitled to recovery for personal injuries
in the amount of five thousand dollars. The trial court entered
judgment against defendants accordingly on 25 April 2001.
Defendants thereafter filed motions for a new trial and,
alternatively, for judgment notwithstanding the verdict. By order
entered 19 July 2001, the trial court denied defendants' motions.Defendants now appeal from the judgment and order of the trial
court.
__________________________________________________
The dispositive issue on appeal is whether plaintiff's
evidence was insufficient as a matter of law to support the jury's
verdict. Under Rule 50 of the North Carolina Rules of Civil
Procedure, a party may move for a directed verdict and for judgment
notwithstanding the verdict in a jury trial. See N.C. Gen. Stat.
§ 1A-1, Rule 50 (2001). A motion for a directed verdict tests the
legal sufficiency of the evidence. See Holcomb v. Colonial
Associates, __ N.C. App. ___, 570 S.E.2d 248, 250 (2002). In
considering a motion for directed verdict, the trial court must
view the evidence in the light most favorable to the non-movant.
See Williams v. Tysinger, 328 N.C. 55, 58, 399 S.E.2d 108, 110
(1991). A motion for directed verdict is properly granted where,
as a matter of law, the evidence is insufficient to justify a
verdict for the plaintiff. See Sibbett v. Livestock, Inc., 37 N.C.
App. 704, 706, 247 S.E.2d 2, 4, disc. review denied, 295 N.C. 735,
248 S.E.2d 864 (1978).
A plaintiff seeking to recover for injuries inflicted by a
domestic animal 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). In such cases, “'[t]he gravamen of thecause of action . . . 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 and
harboring 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.
“The word 'keep' as applied to animals, has a
peculiar signification. It means 'to tend; to
feed; to pasture; to board; to maintain; to
supply with necessaries of life.'” To keep
implies “the exercise of a substantial number
of the incidents of ownership by one who,
though not the owner, assumes to act in his
stead.”
Id. at 51, 152 S.E.2d at 302 (citations omitted) (quoting Allen v.
Ham, 63 Me. 532, 536 (1874) and Raymond v. Bujold, 89 N.H. 380,
382, 199 A. 91, 92 (1938), respectively). 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.
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 upona 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).
We have recently addressed the liability of landowners for
injuries inflicted by dogs owned by tenants. In Joslyn v.
Blanchard, 149 N.C. App. 625, 561 S.E.2d 534 (2002), and again in
Holcomb v. Colonial Associates, __ N.C. App. __, 570 S.E.2d 248
(2002), this Court reaffirmed the general principle that, in order
to recover for injuries inflicted by a domestic animal under the
vicious propensity rule, a plaintiff must demonstrate that the
defendant was either the owner or the keeper of the vicious animal.
See Joslyn, 149 N.C. App. at 630, 561 S.E.2d at 537 (affirming
summary judgment for the defendant property owner where the
plaintiff presented no evidence that the defendant was a keeper of
the dog that injured plaintiff); Holcomb, __ N.C. App. at __, 570
S.E.2d at 251 (reversing the jury verdict against the defendant
property owners because there was no evidence to suggest that the
defendants “kept” the Rottweiler dogs that attacked the plaintiff).
In the instant case, plaintiff presented insufficient evidence
that defendants owned or were the keepers of the pit bull that
injured plaintiff and her dog. The uncontroverted evidence in this
case was that defendants Landis and Meadows owned Blockhead and
generally kept him in a fenced kennel located on one side of their
house. Landis and Meadows erected the fenced kennel in order to
keep their dogs out of defendants' yard. Rice testified thatneither he nor his wife had ever fed, watered, walked, or cared for
Blockhead in any manner. Plaintiff presented no evidence tending
to show that defendants contributed, either personally or
financially, to the dog's care. There was also no evidence to
suggest that defendants held any type of “possessory property
right” in the dog as provided under section 67-4.1(a)(3). At best,
plaintiff's evidence tended to show that defendants allowed their
son to keep the dog on property owned by them, despite the fact
that they were aware of previous incidents involving the dog.
Given the lack of evidence that defendants “under[took] to manage,
control, or care for the animal as owners in general are accustomed
to do,” plaintiff failed to establish the essential element of her
prima facie case that defendants were the owners or keepers of the
dog. Swain, 269 N.C. at 51, 152 S.E.2d at 302; see also Holcomb,
__ N.C. App. at __, 570 S.E.2d at 251; Joslyn, 149 N.C. App. at
630, 561 S.E.2d at 537.
Plaintiff argues that, as owners of the property, defendants
had the ability to “evict” Blockhead, thereby establishing
“control” over him. We are unpersuaded by this argument. In both
Joslyn and Holcomb, the defendants were landlords who had prior
knowledge of the potential viciousness of their tenants' dogs. As
landlords, the defendants in those cases could have required
removal of the animals from their property. Nevertheless, this
Court held in both cases that the property owners could not be held
liable as “keepers” of the dogs without further evidence of
appropriate incidents of ownership. Indeed, the Court in Holcombspecifically rejected this ground as a basis for liability. We
note that, if plaintiff's position were adopted, every landlord in
North Carolina could be deemed the “keeper” of their tenants' pets
and accordingly held liable for any injuries caused by such
animals.
As plaintiff failed to present sufficient evidence to support
the jury verdict against defendants, the trial court erred in
denying defendants' motion for directed verdict at the close of
plaintiff's evidence and in denying defendants' motion for judgment
notwithstanding the verdict after the trial. We therefore vacate
the judgment against defendants and remand this case to the trial
court for entry of an order consistent with this opinion.
Vacated and remanded.
Judges HUDSON and CAMPBELL concur.
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