An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-849
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
MYRA B. RUTLAND,
Plaintiff-Appellant,
v. Guilford County
No. 13 CVS 7526
JAMES SMITH and NANCY SMITH,
Defendants-Appellees.
Appeal by Plaintiff from order entered 14 April 2014 by
Judge V. Bradford Long in Superior Court, Guilford County.
Heard in the Court of Appeals 3 December 2014.
Barron & Berry, L.L.P., by Frederick L. Berry, for
Plaintiff-Appellant.
Gregory A. Wendling for Defendants-Appellees.
McGEE, Chief Judge.
Myra B. Rutland (“Plaintiff”) appeals from an order of the
trial court granting summary judgment in favor of James and
Nancy Smith (“Defendants”). Defendants’ dog, a German Shepherd
sheepdog mix (“Lacy”), allegedly bit Plaintiff on her leg,
causing Plaintiff serious injury. Plaintiff has forecast
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insufficient evidence to support her claim. Therefore, we
affirm.
Plaintiff visited Defendants’ home on 16 January 2012, in
an attempt to sell Defendants supplemental health insurance.
Plaintiff parked in Defendants’ driveway, in front of a carport
to which Lacy was chained. Plaintiff exited her vehicle, and
reportedly was approached by Lacy. Plaintiff let Lacy sniff her
hand, and then Plaintiff turned to approach Defendants’ house,
at which point, allegedly, Lacy attacked her.
During deposition, Defendants speculated that Lacy could
“be a problem” around strangers and generally advised people who
were not familiar with Lacy to avoid parking in their driveway.
However, Defendants testified that this stemmed from a general
belief that dogs could be territorial, but Defendants also
stated that they had never actually seen Lacy act aggressively
toward anyone. At most, Lacy would bark sometimes if Defendants
were not home. Plaintiff presented no further evidence
suggesting Lacy was a vicious animal.
Summary judgment is proper where “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.” N.C. Gen. Stat. §
-3-
1A–1, Rule 56(c) (2013). While summary judgment is normally
disfavored in negligence actions, where the forecast of evidence
shows that a plaintiff cannot establish an essential element of
her claim, summary judgment is appropriate. Strickland v. Doe,
156 N.C. App. 292, 294, 577 S.E.2d 124, 128 (2003) (citations
omitted).
Although the present case is a negligence action, to
recover for injuries inflicted by a domesticated animal, a
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. 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 indispensible
[sic] elements to be averred and proved.
Swain v. Tillett, 269 N.C. 46, 51, 152 S.E.2d 297, 301 (1967)
(citations and internal quotation marks omitted). Regarding the
element of viciousness, in order to survive summary judgment a
plaintiff must at least forecast evidence that “the dog had
demonstrated its vicious inclinations by trying to bite someone
and that the owner or keeper had knowledge of it.” See Hunt v.
Hunt, 86 N.C. App. 323, 327, 357 S.E.2d 444, 447 (1987) (citing
Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676 (1941)).
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In the present case, Plaintiff has presented no evidence
that Lacy had bitten, or had ever attempted to bite, anyone
previously. Although Defendants routinely cautioned people who
did not know Lacy to avoid parking in their driveway, Plaintiff
has presented no evidence that this was motivated by anything
other than Defendants’ general belief that dogs can be
territorial. As such, Plaintiff has forecast insufficient
evidence to establish that Lacy was “vicious” for the purposes
of her negligence action against Defendants. Therefore, summary
judgment was proper.
Affirmed.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).