Dyson v. Stonestreet

Judge BECTON

dissenting.

Believing that the evidence is insufficient to show that defendant breached the common law or a New Hanover County ordinance regarding animals running at large, I dissent.

Defendant’s collie, Prince, was normally kept in a fenced-in backyard and was allowed out of that area only when he was in defendant’s presence. There is no evidence that the dog had ever barked at anyone when he was outside the enclosed area, or had ever run at, bitten, or exhibited any vicious propensities toward any person. Indeed, the dog was trained to obey the commands “sit,” “stay,” “come here,” and “lie down,” and was further trained not to go into the street and not to go outside of defendant’s property line unless attended.

First, regarding the common law negligence issue, I find no evidence that defendant knew or should have known of any dangerous or vicious propensities of his dog. Further, the dog did not snap at, jump on, or bite Ms. Dyson. Rather, the dog disobeyed defendant’s command and ran toward Ms. Dyson, her husband, and their dog, causing Ms. Dyson to fall from her bicycle. I know of no reported case holding a dog owner liable under a common law *571theory of negligence on as paltry a showing of viciousness as this case presents.

Second, I find no evidence to establish that defendant violated the New Hanover County ordinance, which provides that “it shall be unlawful for any owner of a dog to permit said dog to run at large or be off the premises of its owner and not under the restraint of a competent person” (emphasis added). Significantly, the ordinance does not say “It shall be unlawful for any dog to be off its owner’s premises.” Consequently, negligence or knowledge is required before liability can be imposed under the ordinance. See Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 710 (1953) (owner must either knowingly or negligently allow livestock to roam at large before civil liability attaches). I find no evidence in this case that defendant knowingly or negligently permitted his dog to run at large or be off his premises. To the contrary, the evidence shows that the generally and reliably obedient dog was within four feet of defendant and was therefore under the restraint of a competent person within the meaning of the ordinance. The fact that the dog failed to heed its master and crossed the road toward another dog on one particular occasion, with no evidence of any prior disobedience, does not mean that the dog is not “obedient to the commands of its owner or handler.”

Finding no breach of the common law nor the violation of the New Hanover County ordinance, I vote to affirm the action of the trial judge.