Parker v. ColsonÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-145
Filed: 2 July 2019
Anson County, No. 15 CVS 102
TERRY PARKER, Plaintiff,
v.
HENRY COLSON, BARBARA COLSON MYERS, AND VICKIE COLSON,
Defendants.
Appeal by Plaintiff from order entered 31 March 2016 by Judge Mary Ann
Tally in Anson County Superior Court. Heard in the Court of Appeals 22 August
2018.
Hunter & Everage, PLLC, by Charles Ali Everage, for plaintiff-appellant.
McAngus Goudelock & Courie, PLLC, by John P. Barringer and Meredith L.
Cushing, for defendant-appellee.
MURPHY, Judge.
Plaintiff, Terry Parker (“Parker”), challenges the trial court’s order granting
summary judgment to Defendant, Barbara Colson Myers (“Myers”), on Parker’s
negligence per se claim based upon three municipal ordinances and negligence claim
based on a theory of premises liability. We hold the trial court erred in granting
Myers’s motion for summary judgment on Parker’s negligence per se claim based on
Wadesboro Ordinance § 4-4, but affirm the trial court’s order granting Myers’s motion
for summary judgment on the negligence per se claim based on Wadesboro
PARKER V. COLSON
Opinion of the Court
Ordinances §§ 4-7 and 4-31. Additionally, we affirm the trial court’s order granting
Myers’s motion for summary judgment on Parker’s negligence claim based on a theory
of premises liability.
BACKGROUND
Myers is the sole owner of a residential home and the parcel of land upon which
it sits at 914 Dora Street in Wadesboro. Immediately adjacent to Myers’s parcel of
land is a parcel owned by Myers’s sister, Vickie Colson (“Vickie”). On Vickie’s
property at 916 Dora Street sits a little stone house that was uninhabitable and
boarded up, with no running water or electricity. There is no fence separating the
two parcels. Neither property is the primary residence of either sister. Myers’s
primary residence is in Texas, and Vickie’s primary residence is in South Carolina.
However, at all relevant times, the two sisters and their brother, Henry Colson
(“Henry”), all had keys and full access to Myers’s home and both parcels of land.
Henry resided in Charlotte and ran a pitbull breeding “business.” Henry’s
girlfriend told him that he could not continue to board his two pitbulls at her
residence due to insurance concerns. Henry told his sisters that he would be moving
the two dogs to Wadesboro and selling any puppies born on the property. An
enclosure was built to board the two dogs on Vickie’s property. Myers’s home was
used to store the food for the dogs, and, since Vickie’s property had no running water
or electricity, it was also used to provide water and electricity to care for the dogs. In
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2013, none of the siblings resided primarily in Wadesboro, despite the dogs being
boarded there. Henry would drive from Charlotte only twice a week to feed the dogs;
however, when Myers occasionally visited Wadesboro, she would provide the food and
water for the dogs.
During one of Myers’s visits to her home in Wadesboro, Myers let the two dogs
out of their enclosure to roam free in the yard. While the dogs were out of the
enclosure, Parker’s brother, Tommy Parker (“Tommy”), was walking along Dora
Street. Myers yelled at Tommy not to come into the yard because the dogs were
roaming free. Hearing Myers yell, the two dogs “just took off.” The dogs chased
Tommy and “jumped on him,” causing a wound that drew blood.
Approximately one month later on 30 August 2013, the date in question, the
dogs were let out of the enclosure by Henry and were drinking water from the faucet
located on Myers’s property. At this time, Parker was walking down the street where
the properties were located. While walking, Parker observed the two dogs run from
Myers’s property towards him. The dogs attacked, leaving Parker hospitalized for 13
days with severe and permanent injuries to his legs.
Parker subsequently brought a personal injury action against Henry, Vickie,
and Myers in Anson County Superior Court, the procedural history of which we
outlined in Parker v. Colson, ___ N.C. App. ___, 795 S.E.2d 654, 2017 WL 490487(2017) (unpublished):
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In his complaint, [Parker] asserted claims grounded in
strict liability and negligence per se. [Myers] subsequently
filed a motion to dismiss [Parker’s] claims against her
pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure. On 14 October 2015, the trial court
granted [Myers’s] motion as to [Parker’s] claim based on
strict liability but denied the motion as to the claim based
on negligence per se.
On or about 21 January 2016, [Myers] filed a motion for
summary judgment as to the remaining claims against her.
[Parker] subsequently filed a cross-motion for partial
summary judgment against all of the defendants on the
issue of negligence per se. A hearing was held before the
Honorable Mary Ann Tally on 28 March 2016 in connection
with the pending motions. On 31 March 2016, the trial
court issued an order (1) granting [Parker’s] motion for
summary judgment on the issue of negligence per se as to
Henry and Vickie; and (2) granting [Myers’s] motion for
summary judgment, thereby dismissing all remaining
claims against her.
Id. at *1. Parker now appeals the trial court’s order granting Myers’s motion for
summary judgment.
ANALYSIS
A. Standard of Review
Our standard of review for an order granting summary judgment is well
established:
[We] review[] a trial court’s entry of summary judgment de
novo. Summary judgment is proper when 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. When
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Opinion of the Court
considering a motion for summary judgment, the trial
judge must view the presented evidence in a light most
favorable to the nonmoving party. The moving party has
the burden to show the lack of a triable issue of fact and to
show that he is entitled to judgment as a matter of law.
Ron Medlin Constr. v. Harris, 364 N.C. 577, 580, 704 S.E.2d 486, 488 (2010) (citations
and internal quotation marks omitted). Through this filter, we examine the forecast
of evidence and the claims asserted by Parker.
B. Negligence Per Se
Parker contends the trial court erred in granting Myers’s motion for summary
judgment on his claims for negligence per se for violations of §§ 4-4, 4-7, and 4-31 of
Wadesboro Code of Ordinances. We discuss each in turn.
“A public safety statute [or ordinance] is one imposing upon the defendant a
specific duty for the protection of others.” Stein v. Asheville City Bd. of Educ., 360
N.C. 321, 326, 626 S.E.2d 263, 266 (2006) (citation, alteration, and internal quotation
marks omitted). A violation of a public safety statute or ordinance constitutes
negligence per se, unless the statute or ordinance indicates otherwise. Id.Accordingly, “[a] member of the class intended to be protected by a statute or
regulation who suffers harm proximately caused by its violation has a claim against
the violator.” Baldwin v. GTE South, Inc., 335 N.C. 544, 546, 439 S.E.2d 108, 109
(1994). Under such a claim, “[t]he statute prescribes the standard, and the standard
fixed by the statute is absolute. The common law rule of ordinary care does not apply
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– proof of the breach of the statute is proof of negligence.” Carr v. Murrows Transfer,
Inc., 262 N.C. 550, 554, 138 S.E.2d 228, 231 (1964). “But causal connection between
the violation and the injury or damage sustained must be shown; that is to say,
proximate cause must be established.” Id.The rules and canons of construction and interpretation of statutes apply
equally to municipal ordinances. Woodhouse v. Bd. of Comm’rs of Town of Nags Head,
299 N.C. 211, 225, 261 S.E.2d 882, 891 (1980).
1. Wadesboro Ordinance § 4-4
Wadesboro Ordinance § 4-4 states:
It shall be unlawful for any person within the town to keep
or cause to be kept any vicious animal unless such vicious
animal is confined within a secure building or enclosure, or
under restraint.
A “vicious animal” is defined in Wadesboro Ordinance § 4-1 as “any animal
that has made an attack on a human being by biting or in any manner causing
abrasions or cuts of the skin or one which without provocation attacks other pets.”
“Under restraint” is defined under Wadesboro Ordinance § 4-1 as follows:
Restraint. An animal is under restraint if:
(1) It is controlled by means of a chain, leash or other like
device;
(2) It is at a heel position with the custodian and is obedient
to his [or her] commands;
(3) It is in the immediate vicinity of and visible to the
custodian and is under his direct voice control and obedient
to his command;
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(4) It is on or within a vehicle being driven or parked; or
(5) It is within a secure enclosure.
Parker contends there were genuine issues of material fact in that (1) § 4-4 was
a public safety ordinance imposing a special duty upon Myers for the protection of
others, (2) Parker was a member of the class intended to be protected by the
ordinance, and (3) he sustained injuries that were proximately caused by Myers’s
breach of the ordinance. We agree.
In determining whether an ordinance is a public safety ordinance, we look to
whether it is “designed for the protection of life or limb” and “imposes a duty upon
members of society to uphold that protection.” State v. Powell, 336 N.C. 762, 768-69,
446 S.E.2d 26, 29 (1994). This determination is a question of law. In Powell, a
municipal ordinance provided that “no dog shall be left unattended outdoors unless
it is restrained and restricted to the owner’s property by a tether, rope, chain, fence
or other device.” Id. at 769, 446 S.E.2d at 30. Our Supreme Court held that the
ordinance served the dual purpose of protecting persons as well as property, stating,
“the life and limb of pedestrians, joggers, and the public at large are protected by this
ordinance . . . by confining the dogs to the owner’s property while providing, in some
cases, an adequate fence to keep animals and children from accessing the lot and
being exposed to the dogs.” Id. Here, Ordinance § 4-4 is designed for similar
purposes. By making it unlawful for a person to keep or cause to be kept a vicious
animal unless confined or under restraint as designated, the ordinance protects the
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public and passersby from any danger posed by vicious animals. Moreover, it imposes
a special duty to confine or restrain a vicious animal that they keep or cause to be
kept. For these reasons, § 4-4 is a safety ordinance that imposes a special duty upon
persons who keep animals within the town.
Next, we consider whether Parker was a member of the class intended to be
protected by the ordinance. The evidence forecasted at summary judgment showed
that Parker was walking along Dora Street in Wadesboro when the two dogs ran
towards and attacked him, causing severe injuries. Parker was a pedestrian and
member of the general public, so he is within the intended protected class.
Having determined that § 4-4 is a public safety ordinance and that Parker was
a member of the group intended to be protected by the ordinance, we must next
determine whether there was a genuine issue of fact as to Myers’s violation of the
ordinance that proximately caused Parker’s injuries.
Myers does not contest that the two dogs were not confined or under restraint
within the meaning of Ordinances §§ 4-1 and 4-4 and were vicious animals under
Ordinance § 4-1. Rather, she argues that she could not violate the statute, as she
was not “an ‘owner’ or ‘keeper’ of the dogs . . . and therefore could not ‘keep or cause
to be kept’ the dogs in question.” Myers’s argument fails to consider the plain
language of the ordinance. There is no language in § 4-4 to indicate that the
ordinance only applies to owners of a vicious animal. Moreover, the ordinance does
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not limit liability to only “keepers” – it expressly states “it shall be unlawful for any
person . . . to keep or cause to be kept any vicious animal unless . . . .” The ordinance
applies not only to those persons who keep a vicious animal themselves, but also
persons who cause the vicious animal to be kept. To accept Myers’s argument that
the statute only applies to owners or keepers would be to render the phrase “cause to
be kept” redundant and surplusage. See Hall v. Simmons, 329 N.C. 779, 784, 407
S.E.2d 816, 818 (1991) (“The rules of statutory construction require presumptions
that the legislature inserted every part of a provision for a purpose and that no part
is redundant.”).
Taking the evidence in the light most favorable to Parker, there is a genuine
issue of fact as to whether Myers caused the two dogs to be kept. Henry stated that
the food for the dogs was stored in Myers’s house and that the water for the dogs to
drink and the electricity to cool the dogs during the hot summer months came from
Myers’s home with both her knowledge and acquiescence. The food storage, water,
and electricity were critical to the keeping of the dogs, as Vickie’s home on the
property where the dogs were housed was boarded up, with no running water or
electricity. Indeed, when Henry was asked whether he could have kept the dogs in
their kennel at this location without the use of Myers’s home for food storage, water,
and electricity, he stated, “No. I couldn’t.” Additionally, when Myers visited
Wadesboro, she would feed and care for the dogs herself so that Henry did not have
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to drive from Charlotte to Wadesboro. This forecasted evidence, taken in the light
most favorable to Parker, shows that Myers’s role in keeping the dogs went beyond
mere knowledge of their keeping and raises a genuine issue of whether Myers caused
the dogs to be kept under the language of Ordinance § 4-4. Because there was a
genuine issue of fact as to whether Myers violated Ordinance § 4-4 when she caused
to be kept a vicious animal that was not confined within a secure building or enclosure
or under restraint, and whether this violation proximately caused the injuries
inflicted upon Parker, the trial court erred in granting Myers’s motion for summary
judgment on Parker’s negligence per se claim based on Ordinance § 4-4.
2. Wadesboro Ordinance § 4-7
Wadesboro Ordinance § 4-7 states:
It shall be unlawful for any person within the town to
cause, permit, or allow a dog to be away from the premises
of the owner, or to be in a public place, or on any public
property in the town, unless such dog is under restraint.
For the same reasons that we concluded that § 4-4 is a public safety ordinance
and that Parker was a member of the class intended to be protected by the ordinance,
we conclude the same of § 4-7. This ordinance, requiring any dog to be restrained
when away from the premises of the owner, in a public place, or public property in
the town parallels the ordinance in Powell that our Supreme Court concluded
“protects people generally by confining the dogs to the owner's property while
providing, in some cases, an adequate fence to keep animals and children from
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accessing the lot and being exposed to the dogs.” Powell, 336 N.C. at 769, 446 S.E.2d
at 30. Parker, as a passerby, was a member of the class of “pedestrians, joggers, and
the public at large [to be] protected by this ordinance . . . .” Id.Parker, however, fails to forecast evidence that raises a genuine issue of
material fact as to whether Myers violated this ordinance. There is a violation of § 4-
7 where an individual causes, permits, or allows a dog to be away from the owner’s
premises or in any of the listed premises unless under restraint. Therefore, based on
the plain language of the ordinance, it must be the act or failure to act by the alleged
individual that leads to the dog being away from an owner’s premises or in a public
place or public property while unrestrained. Here, even taking the evidence in the
light most favorable to Parker, there was no such act or omission by Myers that
caused, permitted, or allowed the two dogs to be away from Vickie’s property on the
day in question. Henry was the only individual on the premises that day, and he was
the only individual who caused, permitted, or allowed the two dogs to be away from
their enclosure and Vickie’s property without restraint.
The trial court did not err in granting summary judgment in Myers’s favor on
Parker’s negligence per se claim based upon Ordinance § 4-7.
3. Wadesboro Ordinance § 4-31
Wadesboro Ordinance § 4-31 states:
The custodian of every animal shall be responsible for the
care, licensing, vaccination and behavior of such animal.
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Custodian is defined under the Municipal Code as “the person owning, keeping,
having charge of, sheltering, feeding, harboring, or taking care of any animal, or is
otherwise the keeper of an animal. A custodian is not necessarily the owner.”
We need not determine whether there was a genuine issue as to whether Myers
was a custodian within the meaning of the ordinance, as Ordinance § 4-31 cannot
serve as a predicate ordinance upon which a claim of negligence per se is based. To
establish a negligence per se claim, the ordinance must impose a specific duty upon a
defendant for the protection of others. Stein, 360 N.C. at 326, 626 S.E.2d at 266.
However, § 4-31 imposes no duty of care on any alleged custodian. Rather, it merely
makes a statement of liability without respect to a standard of care to which an
individual must abide. Without a standard of care set by the ordinance, there can be
no breach of the ordinance to constitute negligence per se. See Carr, 262 N.C. at 554,
138 S.E.2d at 231 (“The distinction, between a violation of a statute or ordinance
which is negligence per se and a violation which is not, is one of duty. In the former
the duty is to obey the statute, in the latter the duty is due care under the
circumstances.”). There was no evidence presented that Myers breached this
ordinance, and summary judgment based upon this claim was appropriately granted.
B. Premises Liability
Parker also contends the trial court erred in granting Myers’s motion for
summary judgment on his common law negligence claim. We disagree.
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Parker argues that “[c]ommon law has recognized in dog bite cases a negligence
claim under the theory of premises liability against a non-owner of the dogs” and cites
Holcomb v. Colonial Assoc., L.L.C., 358 N.C. 501, 507, 597 S.E.2d 710, 714 (2004), for
this proposition. While Parker is correct that a common law negligence claim may be
brought against a non-owner of a dog who injures a plaintiff, he erroneously asserts
this doctrine’s applicability in the case before us.
In Holcomb, our Supreme Court addressed “the issue of whether a landlord can
be held liable for negligence when his tenant’s dogs injure a third party.” Holcomb,
358 N.C. at 503, 597 S.E.2d at 712. In Holcomb, defendant Olson resided as a tenant
in a home situated on thirteen acres owned by defendant Colonial; Management
Associates managed the property for Colonial. Id. The plaintiff was a demolition
contractor who visited the rental homes on the property to provide Colonial with an
estimate for demolition. Id. at 504, 597 S.E.2d at 713. One of Olson’s two dogs, which
Management permitted Olson to keep, lunged at the plaintiff, causing him injuries.
Id.Our Supreme Court first noted that “[t]he fact that we recognize a strict
liability cause of action against owners and keepers of vicious animals . . . does not
preclude a party from alleging negligence (a different cause of action) against a party
who may or may not be an owner or keeper of an animal.” Id. at 507, 597 S.E.2d at
714 (2004). “Under a premises liability theory, the Holcomb Court [then] held that
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the landlord could be held liable because the ‘lease provision granted [landlord]
sufficient control to remove the danger posed by [tenant]’s dogs.’” Stephens v.
Covington, 232 N.C. App. 497, 499, 754 S.E.2d 253, 255 (2014) (citing Holcomb, 358
N.C. at 508-09, 597 S.E.2d at 715). Thus, Holcomb and the cases following it make
clear that the crux of imposing liability on a landowner for injuries inflicted on a third
person by a dog attack under a theory of premises liability is whether the landlord
had “sufficient control to remove the danger posed by [the tenant’s] dog.” Holcomb,
358 N.C. at 508-09, 597 S.E.2d at 715; Stephens, 232 N.C. App. at 500, 754 S.E.2d at
255 (“[I]t was still clear from [Holcomb] that it was not merely the landlord's control
of the property, but particularly the landlord's sufficient control to remove the danger
posed which resulted in the landlord's liability.” (citation and internal quotation
marks omitted)).
Even taken in the light most favorable to Parker, there is no evidence Myers
exercised sufficient control to remove the danger posed by Henry’s dogs. Vickie owned
the property where the dogs’ enclosure was located, meaning Myers exercised no
control over the manner in which the dogs were housed or enclosed. Moreover, Myers
exercised no control over the manner in which the dogs were released from that
enclosure or whether they were under restraint when released by Henry.
Significantly, the attack did not occur on the property owned by Myers. Such
circumstances are fundamentally different from those cases cited by Holcomb where
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a landlord had the power to control the harboring of a dog on the landlord’s property. 1
Without a forecast of evidence that Myers exercised sufficient control to remove the
danger posed by the two dogs, Parker’s negligence claim based upon a theory of
premises liability fails. The trial court did not err in granting Myers’s summary
judgment on this theory of liability.
CONCLUSION
With respect to Parker’s negligence per se claim based on Ordinance § 4-4,
Myers failed to show that there was no genuine issue of material fact and that she is
entitled to judgment as a matter of law. The trial court erred in granting Myers’s
motion for summary judgment on this claim. The forecasted evidence, however, failed
to raise a genuine issue as to whether Myers violated Ordinance § 4-7, and Ordinance
§ 4-31 fails to establish a standard of care upon which a claim of negligence per se can
be based. The trial court did not err in granting Myers’s motion for summary
judgment on Parker’s negligence per se claim based on these two ordinances. The
trial court also did not err in granting Myers’s motion for summary judgment on
Parker’s negligence claim. We reverse in part and remand and affirm in part.
1 See Batra v. Clark, 110 S.W.3d 126, 129–30 (Tex.App.-Houston 1st Dist. 2003); see also
Uccello v. Laudenslayer, 44 Cal.App.3d 504, 514, 118 Cal.Rptr. 741, 747 (1975) (holding the landowner
had control via the power “to order his tenant to cease harboring the dog under pain of having the
tenancy terminated”); Shields v. Wagman, 350 Md. 666, 684, 714 A.2d 881, 889–90 (1998) (holding the
landowner could exercise control over his tenant's dog by refusing to renew a month-to-month lease
agreement); McCullough v. Bozarth, 232 Neb. 714, 724–25, 442 N.W.2d 201, 208 (1989) (holding
liability may be imposed on a landlord where, “by the terms of the lease, [the landlord] had the power
to control the harboring of a dog by the tenant and neglected to exercise that power”).
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REVERSED IN PART AND REMANDED; AFFIRMED IN PART.
Judges STROUD and ZACHARY concur.
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