Holcomb v. Colonial Associates, L.L.C. ( 2004 )

Justice PARKER

dissenting.

Until today this Court has not applied premises liability principles to allow recovery for injuries inflicted by an animal. The requirements for liability have been that the person be the keeper of the animal and have knowledge of the animal’s vicious propensity. In Swain v. Tillet, 269 N.C. 46, 152 S.E.2d 297 (1967), this Court stated:

To recover for injuries inflicted by a domestic animal, domitae naturae, plaintiff must allege and prove: “(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.” (Emphasis added.) Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663; Plumidies v. Smith, 222 N.C. 326, 22 S.E.2d 713; Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676. See also Sink v. Moore and Hall v. Moore, 267 N.C. 344, 148 S.E.2d 265. “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; and thus both viciousness and scienter are indispensable elements to be averred and proved.” Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458, 460; 2 Strong, N.C. Index, Animals § 2 (1959).

Id. at 51, 152 S.E.2d at 301. Thus, North Carolina jurisprudence has wisely had a separate cause of action which recognized the special nature of animals and that responsibility for an injury caused by an animal must be placed on the person who maintains the animal and is in the best position to control the creature.

Unlike a hole that can be filled or a broken step that can be repaired, an animal is not a condition of the premises. Animals are mobile and have moods and personalities. Thus, to hold that a landlord can be liable in negligence for an attack by a tenant’s animal on account of the landlord’s failure, pursuant to the terms of a lease, to order removal of an animal places an undue burden on the landlord. In my opinion the control is too remote to hold that the landlord breached its duty of care. Notwithstanding the majority’s overture to dogs, today is, I fear, a sad day for Fido and Rover. Accordingly, I respectfully dissent.

Justice WAINWRIGHT joins in this dissent.