If there’s one thing we all remember from law school, it’s the old rule of common law that each dog gets one bite before the owner is on notice that the creature is dangerous. Though that rule has been refined over the years, the relationship between canine and human has been the topic of many an opinion. While none has matched Judge Harry Martin’s eloquence in State v. Wallace, 49 N.C. App. 475, 271 S.E.2d 760 (1980), we find another such case in the most recent batch of opinions from the Supreme Court of North Carolina.
Before I discuss this new case, let me turn to the second theme of this post. Though I have never held the position of Chief Justice, I have seen up close that it is a demanding job. The Chief Justice is head of the judiciary, one of three branches of government. At the same time, the Chief is expected to carry the same caseload as every other justice on the Supreme Court.
Every Chief Justice I have worked with has welcomed the chance to write an opinion that reminds him or her of the type of judging they used to be able to do full-time. For that reason, I suspect that Chief Justice Newby eagerly picked the case of Curlee et al. v. Johnson et al., 270 N.C. App. 657, 2021-NCSC-32 (2021) following February’s arguments.
The case is serious because a child was badly injured. The facts, though, are relatively straightforward. Defendant landlord owned a house where defendant tenants lived with their children and their dog. The evidence indicated that on October 13, 2014, a juvenile came to visit the tenants’ children and while all the youths were playing with the dog, the visitor’s head collided with the dog’s mouth, causing a minor cut or scrape.
The incident was investigated by the county’s Animal Control Services, which characterized the incident as a “minor bite” but concluded that the dog was not dangerous. Nevertheless, the tenants purchased “Beware of Dog” signs and chained the dog whenever children came to play.
On March 17, 2015, the seven-year-old plaintiff visited the tenants’ children. When the visitor walked inside the chain’s radius, the dog bit him in the face, causing severe injuries.
Plaintiff sued both the tenants (who owned the dog) and the landlord (who rented the house to the tenants). Although the evidence regarding notice was at times inconsistent (likely because the tenants were proceeding pro se), depositions of the tenants and of the landlord indicated that the landlord had not been notified of the earlier October 2014 nipping incident. The trial court granted summary judgment in the landlord’s favor.
Plaintiff appealed and the North Carolina Court of Appeals affirmed the trial court. That Court observed that the law had long been held that, for a landlord to be liable for the behavior of a tenant’s dog, the plaintiff must establish that (1) the landlord knew that the tenant’s dog posed a danger, and (2) that the landlord had control over the dangerous dog’s presence on the property. According to the Court of Appeals majority, plaintiff failed to establish the first prong, that the landlord had the requisite knowledge.
In dissent, Judge Brook argued that there was a genuine issue of material fact as to whether the landlord knew the dog posed a danger. The dissent also would have reached the issue of whether the landlord had control over the dog. Plaintiff appealed on the basis of the dissent.
The Supreme Court, in an opinion authored by Chief Justice Newby, affirmed the trial court’s judgment. The Chief concluded that the evidence in the appellate record “clearly and consistently indicates that landlord had no knowledge of the [earlier] incident.” The fact that his tenants had erected “Beware of Dog” signs was not evidence of knowledge of the dog’s character. While the signs indicated to the landlord that the tenants kept a dog on the property, the landlord also knew that the tenants had taken the precautions of restraining the dog and posting the signs.
The opinion does not address the liability, if any, of the tenants so presumably that issue is yet to be litigated. That said, this opinion gives further guidance to those landlords who allow their tenants to keep pets. If this case progresses further, we may learn whether the precautions taken by the tenants were legally sufficient.
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