Stephens v. Covington

NO. COA13-431
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
JOSHUA STEPHENS,
Plaintiff
v. New Hanover County
No. 11 CVS 356
SHELBY COVINGTON, JAMES HEWETT,
and GLENDA HEWETT,
Defendants
Appeal by plaintiff from order entered 3 October 2012 by Judge
Gary E. Trawick in New Hanover County Superior Court. Heard in
the Court of Appeals 9 October 2013.
Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, and The
Kirby Law Firm, by Albert D. Kirby, Jr., for plaintiff-
appellant.
Culbreth Law Firm, LLP, by Stephen E. Culbreth, for defendant-
appellee.
CALABRIA, Judge.
Joshua Stephens (“plaintiff”) appeals from an order granting
summary judgment in favor of Shelby Covington (“defendant”).
Defendants James and Glenda Hewett (collectively, “the Hewetts”)
are not parties to this appeal. Plaintiff only appeals the 3
October 2012 order granting summary judgment in defendant’s favor.
We affirm.
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I. Background
In the early 1990s, the Hewetts leased a home located on
Louisiana Avenue in Wilmington, North Carolina (“the property”)
from defendant’s husband, John Covington (“Mr. Covington”)
(collectively with defendant, “the Covingtons”). Mr. Covington
knew that the Hewetts owned a Rottweiler (“Rocky”), and since the
houses in the neighborhood were close together, Mr. Covington and
the Hewetts contacted Animal Control regarding safety measures for
keeping a dog. As a precaution and at the direction of Animal
Control, the Hewetts created a fenced area in the backyard with
two gates and posted “Beware of Dog” and “No Trespassing” signs on
each gate.
Shortly after the Hewetts leased the property, but prior to
purchasing it, Rocky grew so large that the Hewetts began keeping
Rocky exclusively in the fenced area. At the time the incident in
the instant case occurred, plaintiff was eight years old.
Plaintiff visited his friend Jeremy Hewett (“Jeremy”), the
Hewetts’ nine-year-old son. During plaintiff’s visit, plaintiff
followed Jeremy when he entered the fenced area to refill Rocky’s
water dish. While the boys stood in the fenced area, Rocky bit
plaintiff’s lower leg. Jeremy hit Rocky with a stick to make him
release plaintiff. When Jeremy was unsuccessful, he ran to get
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his mother. Rocky briefly released plaintiff, but then bit him
again, catching plaintiff’s shoulder in his teeth. Eventually
Glenda Hewett managed to release plaintiff from Rocky, and a
neighbor pulled plaintiff over the fence, safely away from Rocky.
Plaintiff sustained “extremely severe” injuries to both his leg
and shoulder. Animal Control officers investigated and took
statements from witnesses. After Rocky remained at the animal
shelter for a ten day mandatory quarantine period, James Hewett
decided to have him euthanized.
In October 2008, after plaintiff reached majority, he filed
a complaint against the Covingtons and the Hewetts. However, since
Mr. Covington died in 1998, the complaint was voluntarily dismissed
without prejudice. Plaintiff refiled the complaint against the
Hewetts and defendant on 27 January 2011. Plaintiff alleged, inter
alia, negligence against the Hewetts and defendant. On 21 November
2012, the trial court entered a final judgment of $500,000 against
the Hewetts as compensatory damages. On 12 March 2012, defendant
filed a motion for summary judgment. After a hearing in New
Hanover County Superior Court, the trial court entered an order on
3 October 2012 granting defendant’s motion. Plaintiff appeals the
order granting summary judgment in defendant’s favor.
II. Standard of Review
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“Our standard of review of an appeal from summary judgment is
de novo; such judgment is appropriate only when the record shows
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.’” In re
Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)
(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385
(2007)). “When considering a motion for summary judgment, the
trial judge must view the presented evidence in a light most
favorable to the nonmoving party.” Id. (citation omitted).
III. Landlord’s Liability to Third Parties for Injuries by
Tenant-Owned Dogs
Plaintiff argues the trial court erred by granting
defendant’s motion for summary judgment because there was a genuine
issue of material fact as to whether defendant had control over
the dangerous animal which attacked plaintiff. We disagree.
Plaintiff’s argument relies primarily upon Holcomb v.
Colonial Assocs., L.L.C., in which our Supreme Court considered
“whether a landlord can be held liable for negligence when his
tenant's dogs injure a third party.” 358 N.C. 501, 503, 597 S.E.2d
710, 712 (2004). In Holcomb, a contractor sustained injuries when
a tenant’s Rottweiler dog “lunged” at him, causing him to fall to
the ground. Id. at 504, 597 S.E.2d at 713. The landlord had
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allowed the tenant to keep two Rottweiler dogs which were permitted
to run freely on the property despite the landlord’s awareness of
two prior instances of aggression on the part of the dogs, one of
which resulted in a bite. Id. at 504, 597 S.E.2d at 712-13. The
landlord continued to allow the dogs despite a written lease
agreement which required the tenant to promptly remove any pet the
landlord deemed to be a nuisance or undesirable. Id. at 503, 597
S.E.2d at 712.
Under a premises liability theory, the Holcomb Court held
that the landlord could be held liable because the “lease provision
granted [landlord] sufficient control to remove the danger posed by
[tenant]'s dogs.” Id. at 508-09, 597 S.E.2d at 715 (emphasis
added). Plaintiff in the instant case contends that there was a
genuine issue of material fact as to whether defendant possessed
similar control over Rocky at the time he was attacked.
However, as all of the cases relied upon by the Holcomb Court
make clear, it is not mere generalized control of leased property
that establishes landlord liability for a dog attack, but rather
specific control of a known dangerous animal. See Batra v. Clark,
110 S.W.3d 126, 130 (Tex.App.-Houston 1st Dist. 2003) (“[I]f a
landlord has actual knowledge of an animal’s dangerous
propensities and presence on the leased property, and has the
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ability to control the premises, he owes a duty of ordinary care
to third parties who are injured by this animal.”); Uccello v.
Laudenslayer, 118 Cal. Rptr. 741 (1975) (landlord renewed tenants’
lease with knowledge that tenants’ dog previously attacked two
people); Shields v. Wagman, 714 A.2d 881 (Md. 1998) (leasing
company knew dog had vicious tendencies and had control over dog’s
presence on the property); McCullough v. Bozarth, 442 N.W.2d 201,
208 (Neb. 1989) (landlord only liable for injuries caused by
tenant’s dog when he has “actual knowledge of the dangerous
propensities of the dog and . . . nevertheless leased the premises
to the dog’s owner or . . . had the power to control the harboring
of a dog by the tenant and neglected to exercise that power.”).
The Holcomb Court was able to presume the dog which attacked the
contractor in that case was dangerous, because the undisputed
evidence before it was that the landlord had knowledge of the dogs’
previous attacks and dangerous propensities. Id. at 504, 597 S.E.2d
at 712-13. Nonetheless, it was still clear from that decision
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. Id. at
508, 597 S.E.2d at 715 (emphasis added). Thus, pursuant to Holcomb
and the cases cited therein, a plaintiff must specifically
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establish both (1) that the landlord had knowledge that a tenant’s
dog posed a danger; and (2) that the landlord had control over the
dangerous dog’s presence on the property in order to be held liable
for the dog attacking a third party.
In the instant case, there is no evidence that defendant or
her husband knew or had reason to know that Rocky was dangerous.
While Mr. Covington requested that James Hewett contact Animal
Control prior to Rocky occupying the property, deposition
testimony indicates that the purpose behind this call was to obtain
advice on erecting a fence to confine the dog to the yard in
accordance with local ordinances, rather than because the dog had
displayed any aggression. The record also indicates that there
were no reported incidents of aggression, and no one had complained
about Rocky to Animal Control or to the Covingtons prior to
plaintiff’s visit on 25 January 1996. During the investigation of
the incident, Animal Control officers did not interview the
Covingtons. Animal Control officer Chloe Rivenbark testified at
her deposition in the matter that “there was really no need to
talk to [the Covingtons]. [Animal Control officers] were dealing
mainly with the children and the families that were involved.”
Finally, defendant specifically testified in her deposition that
“the dog didn’t have a bad name of biting anybody or anything that
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I ever heard tell of [sic],” and that Mr. Covington “would have
not allowed [sic] . . . anything there that was dangerous[.]”
Thus, unlike the landlord in Holcomb, defendant did not have
knowledge of a dangerous dog on the property.
Nonetheless, plaintiff contends that defendant did not need
to have actual knowledge of Rocky’s dangerous propensities because
this Court has previously held that dog owners in a negligence
action were “chargeable with the knowledge of the general
propensities of the Rottweiler animal.” Hill v. Williams, 144 N.C.
App. 45, 55, 547 S.E.2d 472, 478 (2001) (citation omitted). In
Hill, a local veterinarian testified that the Rottweiler breed was
“aggressive and temperamental, suspicious of strangers, protective
of their space, and unpredictable.” Id. at 48, 547 S.E.2d at 474.
The defendants presented no evidence to refute the plaintiffs’
evidence of the breed’s aggressive tendencies, and as a result,
they were “chargeable . . . with knowledge of the general
propensities of a Rottweiler dog as reflected in plaintiffs’
evidence[.]” Id. at 55, 547 S.E.2d at 478 (emphasis added).
In the instant case, plaintiff did not present any evidence
demonstrating that the Rottweiler breed is generally dangerous.
The only evidence regarding the general propensities of
Rottweilers was the deposition testimony of Animal Control Officer
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Ron Currie (“Officer Currie”). Officer Currie testified that
socializing individual dogs is more indicative of an animal’s
behavior than breed. He also testified that Rottweilers are not
necessarily aggressive by their very nature. Thus, the evidence
presented regarding the propensities of a Rottweiler dog, in the
instant case, does not support a finding that Rottweilers are
generally dangerous. Accordingly, Hill’s statement regarding the
dangerousness of Rottweilers, which was specific to the evidence
presented in that case, is not applicable to the instant case.
Ultimately, there is nothing in the record to suggest that
defendant knew a dangerous dog was on the property. Rocky had no
prior history of attacks, and neither the Covingtons nor Animal
Control were aware of any complaints regarding the dog’s aggression
or viciousness. Defendant could not have known that Rocky was
dangerous, as there was no evidence prior to 25 January 1996 that
the dog exhibited vicious tendencies.
IV. Conclusion
In the light most favorable to plaintiff, the evidence fails
to show that defendant knew that Rocky had dangerous propensities
prior to his attack on plaintiff. Since plaintiff has failed to
establish that Rocky was a danger, he has failed to establish that
defendant possessed “sufficient control to remove the danger
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posed” under Holcomb. 358 N.C. at 508, 597 S.E.2d at 716.
Plaintiff’s assumption that defendant had knowledge of Rocky’s
dangerous propensities based upon breed is misplaced, as the record
indicates that the Rottweiler breed is not inherently aggressive.
As such, there is no genuine issue of material fact, and the trial
court correctly granted defendant’s motion for summary judgment.
We affirm the order of the trial court.
Affirmed.
Judges ELMORE and STEPHENS concur.