dissenting.
For reasons other than those proffered by the majority, I believe the evidence was sufficient to be submitted to the jury, but, because I believe the trial judge failed to properly instruct the jury, I would grant the defendant a new trial.
The issues presented by this case are as follows: I. Whether the State presented sufficient evidence to require submission of the charge of involuntary manslaughter based on culpable negligence to the jury; and II. If so, whether the trial judge correctly in-structéd the jury on involuntary manslaughter based on culpable negligence.
I.
Involuntary manslaughter is a creature of common law defined as the unintentional killing of another human being without malice which killing proximately results from either 1) an unlawful act not amounting to a felony or not naturally dangerous to human life, or 2) a culpably negligent act or omission. State v. McGill, 314 N.C. 633, 637, 336 S.E.2d 90, 92 (1985); State v. Everhart, 291 N.C. 700, 702, 231 S.E.2d 604, 606 (1977). Typically, involuntary manslaughter convictions arising from the violation of a statute have been reviewed by our courts by first determining whether the statute at issue is a “safety” statute and, if so, examining the charge under the theory of culpable negligence. See McGill, 314 N.C. at 637, 336 S.E.2d at 92 (where the violation of a safety *11statute or ordinance designed for the protection of life or limb is at issue, our courts examine a charge of involuntary manslaughter under a theory of culpable negligence). The violation of a safety statute constitutes negligence per se. See Sellers v. CSX Transp., Inc., 102 N.C. App. 563, 566, 402 S.E.2d 872, 873 (1991). Such a violation can be elevated to culpable negligence in the criminal context where the violation is intentional, wilful, or wanton, evincing a reckless disregard of human life. See State v. Cope, 204 N.C. 28, 30, 167 S.E. 456, 458 (1933) (although criminal and culpable negligence are distinct concepts and should be recognized as such by the courts, culpable negligence has long been defined as “something more than actionable negligence in the law of torts”); Everhart, 291 N.C. at 702, 231 S.E.2d at 600 (same).
I disagree with the majority’s characterization of the ordinance at issue here as a safety ordinance. Safety statutes and ordinances are those which “impose[] a duty on a person for the protection of others.” Hart v. Ivey, 332 N.C. 299, 303, 420 S.E.2d 174, 177 (1992). The purpose of the subject Winston-Salem Code is to protect people from the minor annoyances posed from having someone else’s pets roaming through your yard. There is no indication that the drafters of this ordinance contemplated that it would protect the lives and limbs of the citizens of Winston-Salem. The majority indicates that the protection of children from physical harm is a purpose of the statute that puts it in the realm of classification as a safety statute. However, this very type of limited protective classification was rejected in Hart wherein the Supreme Court found N.C.G.S. § 18B-302, a statute which prohibits the sale of alcohol to anyone under the age of twenty-one, to be a non-safety statute because it was not designed to protect the public. The Court held, “[i]f it was to protect the public, it should not be limited to persons under twenty-one years of age.” Id. at 303-04, 420 S.E.2d at 177. Moreover, to hold that a violation of the subject leash law is negligence per se would require a trial judge to charge that even a minor violation by a domestic animal owner, even if it involves the meekest of domestic animals, is negligence per se. As in Hart, I do not believe the city council intended this result. I would therefore decline to classify this statute as a safety statute.
Having concluded that the subject statute is not a safety statute, it should be noted next that our appellate courts have not previously addressed the issue of how an involuntary manslaughter charge *12arising from a non-safety statute should be analyzed. Nonetheless, it is clear that in the absence of a safety statute or ordinance, the analysis undertaken to prove involuntary manslaughter necessarily changes. Indeed, where there is a safety statute, the violation of the statute itself constitutes negligence per se and therefore no analysis of a common law duty and breach thereof must be undertaken. However, where there is a violation of a non-safety statute, no negligence is established by the mere violation of the statute, and the negligence, if any, must be established by proving common law negligence.
To meet its burden of establishing ordinary negligence, the State need not rely on elements that constitute a violation of the statute or ordinance. This point is clearly illustrated in Hart where the Supreme Court, after first finding that the statute in that case was not a safety statute, went on to find negligence under common law principles, without regard to the existence of the statute. Id. at 304-05, 420 S.E.2d at 177. “Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent person would exercise under similar conditions.” Id. at 305, 420 S.E.2d at 177-78. The Hart Court concluded that the jury could find that the defendants had done something a reasonable person would not do and were, therefore, negligent. Id. at 305, 420 S.E.2d at 178. The duty to others in such an instance is determined by the general common law principle that “ ‘[t]he law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence.’ ” Id. (quoting Council v. Dickerson’s, Inc., 233 N.C. 472, 64 S.E.2d 551 (1951)).
It follows that, because no safety statute governing the present situation, exists, the analysis here should follow from accepted principles of common law. In general, the prosecution of the charge of involuntary manslaughter based upon culpable negligence where there is no safety statute requires proof of the following elements beyond a reasonable doubt: (1) that the defendant had committed or omitted acts which constituted ordinary negligence which were the proximate cause of the death of the victim; and (2) that the defendant’s ordinary negligence was elevated to culpable negligence because his activity was wilful or wanton, evincing a reckless disregard for human life.
*13It is well established that the elements of ordinary negligence are: “(1) defendant owed a duty to plaintiff, (2) defendant failed to exercise proper care in the performance of that duty, and (3) the breach of that duty was the proximate cause of plaintiff’s injury, which a person of ordinary prudence should have foreseen as probable under the conditions as they existed.” Westbrook v. Cobb, 105 N.C. App. 64, 67, 411 S.E.2d 651, 653 (1992). However, this .typical ordinary negligence test has not traditionally been applied in cases seeking recovery for the injuries inflicted by a domestic animal. Rather, in such cases, the plaintiff must show “[t]hat the animal was dangerous, vicious, mischievous or ferocious, or one termed in law as possessing a vicious propensity[,] . . . and that the owner or keeper knew or should have known of the animal’s vicious propensity, character, and habits.” Miller v. Snipes, 12 N.C. App. 342, 343, 183 S.E.2d 270, 271, disc. rev. denied, 279 N.C. 619, 184 S.E.2d 883 (1971). The essence of such an action is not negligence, but the wrongful keeping of an animal with knowledge of its viciousness. Id. at 346, 183 S.E.2d at 273. The liability in such an action, however, centers on the owner’s negligence in failing to confine or restrain his animals. Id. This more specific analysis for cases dealing with vicious domestic animals, however, can be stated in terms of an ordinary negligence analysis. These cases support the conclusion that there exists a common law duty to restrain domestic animals which are known or should be known to possess vicious propensities. Failure to restrain such animals constitutes a breach of that duty if a reasonable person in the position of the owner would not have believed the measures taken by the owner to be adequate. In making such a determination of reasonableness, all relevant circumstances known to the owner, such as the animals’ past behavior, size, nature and habits, should be considered. Id. Thus, to prove involuntary manslaughter in cases involving domestic animals, the State must prove the following beyond a reasonable doubt: (1) the animals at issue possessed vicious propensities and the owner knew or should have known of these vicious propensities; (2) the defendant breached his duty to restrain the animals; (3) the defendant’s actions were wilful or wanton, evincing a reckless disregard of human life; and (4) the defendant’s actions were the proximate cause of the victim’s death.
In the subject case, the evidence regarding the vicious propensities of the rottweilers, viewed in a light most favorable to the State, tended to show the following. The dogs were large, extreme*14ly strong animals of substantial weight, they were trained to be aggressive and would bark at people who passed by the defendant’s yard. On one occasion the dogs entered the yard of a neighbor, frightening the neighbor and his granddaughter, and at another time jumped on a woman walking down the street, but did not harm her. The defendant’s ex-girlfriend testified that she lived with the defendant in 1988, for the first four months that he owned the then rottweiler puppies. She said that the defendant abused the dogs by kicking and hitting them and wanted the dogs to be aggressive. This evidence, in my opinion, was sufficient evidence for the jury to find beyond a reasonable doubt that the dogs possessed vicious propensities and that the defendant knew or should have known of the dogs’ vicious propensities.
The evidence, as aptly set out by the majority opinion, was likewise sufficient for the jury to find that the defendant breached his duty to restrain the animals and that such actions were wilful or wanton, evincing a reckless disregard of human life. Finally, the evidence was sufficient to allow the jury to find that the defendant’s actions were the proximate cause of the victim’s death. In short, I conclude that the state presented sufficient evidence to submit this case to the jury.
II.
The final issue which must be resolved in this appeal is whether the judge correctly instructed the jury on the charge of involuntary manslaughter. I conclude that he did not.
The trial court instructed the jury regarding culpable negligence as follows:
Second, the State must prove beyond a reasonable doubt that the defendant’s conduct constituted culpable negligence. The violation of a statute or ordinance governing the care of dogs constitutes culpable negligence if the. violation is wilful, wanton, or intentional. But where there is an unintentional or inadvertent violation of such statute or ordinance, such violation standing alone does not constitute culpable negligence.
The inadvertent or unintentional violation of such statute or ordinance must be accompanied by recklessness of probable consequences of a dangerous nature when tested by the rule of reasonable foresight amounting altogether to a thoughtless *15disregard of consequences or a heedless indifference to the safety of others.
The defendant requested that the trial court instruct the jury as follows:
You must look to the past conduct of the pets totally and completely unrelated to their locations and without any regard to any rules regarding running at large, and determine whether or not the past conduct of the pets cared for by the defendant Powell would give a person of ordinary intelligence notice that grievous bodily harm or death could occur by virtue of the pets being in the presence of humans. If you find that such evidence was submitted in the case, you may consider that evidence in reference to the question as to whether or not the defendant Powell should have reasonably been able to preview that probable consequences of a dangerous nature could occur by leaving his pets in an enclosed fence by virtue of their digging propensity.
Violation of the County leash law does not negate the burden of claimants to show scienter in order to allege and prove that the defendant knew he was harboring vicious dogs prior to October 20, 1989.
The trial court is required to give a jury instruction requested by a party when such an instruction is correct and supported by the evidence. Robinson v. Seaboard System Railroad, Inc., 87 N.C. App. 512, 526, 361 S.E.2d 909, 918 (1987), disc. rev. denied, 321 N.C. 474, 364 S.E.2d 924 (1988). These requested instructions need not be given in the exact form and language in which they are submitted, however, so long as they are given in substance. Id.
While the instructions requested by the defendant are not completely accurate, the trial judge should have instructed the jury regarding the elements of the charge of involuntary manslaughter in cases involving domestic animals where a non-safety statute is involved. These elements which have been previously set forth, encompass the essence of the defendant’s request that the vicious propensities of the rottweilers were relevant to a determination of involuntary manslaughter.
Moreover, the instruction given by the trial judge was apparently based on the characterization of the subject leash law as a safety statute. Since I have concluded that the subject statute *16was a non-safety statute, I believe it was error for the trial judge to instruct on involuntary manslaughter based on a safety statute.
For the foregoing reasons, I respectfully dissent and vote that this case be remanded to the trial court for a new trial.