North Carolina ReportsAugust 13, 1999 HUNT v. HUNT, 86 N.C. App. 323 (1987) 357 S.E.2d 444 GEORGE R. HUNT v. CHARLES J. HUNT AND AMELIA P. HUNT No. 8610SC892 North Carolina Court of Appeals Filed 7 July 1987 Judge JOHNSON concurring in the result. Judge BECTON dissenting. APPEAL by plaintiff from Farmer, Judge. Order entered 12 June 1986 in Superior Court, WAKE County. Heard in the Court of Appeals 14 January 1987. Defendants, who lived adjacent to a trailer park where plaintiff lived, had had a German Shepherd dog named Rocky since 1979. According to plaintiff on 8 March 1983, while he was walking in his own yard defendants' dog without provocation ran onto plaintiff's property, seized his hand and bit it. Plaintiffthereafter sued defendants for compensatory and punitive damages alleging, in gist, that though the dog had dangerous propensities, which defendants knew about, they recklessly disregarded his rights and safety by permitting the dog to run loose before it bit him. After discovery was completed, defendants moved under Rule 56, N.C. Rules of Civil Procedure for an order of partial summary judgment eliminating the punitive damages issue from the case, andPage 324following a hearing the motion was granted. Plaintiff's appeal is from that order and the only parts of the record that bear directly upon its validity are statements by the defendants in their depositions and answers to interrogatoriesto the effect that at the time of the biting the dog was roaming at large with their permission, the dog was not vicious to their knowledge, and they had received no complaints about it attacking anybody before it bit plaintiff; and two affidavits offered by plaintiff which indicate that the dog was vicious and defendants knew it. The affidavit of Marsha G. Wells, a schoolteacher who had resided near defendants for several years, stated: 3. In the Spring of 1982 I observed Mr. Hunt's german shepherd dog, "Rocky", chasing my eight-year-old daughter and my seven-year-old niece across a field near our home. The dog was barking and snapping at them and they were extremely frightened. 4. At this time Mr. Hunt was outside his home and observed the dog chasing the children. He called the dog off and the children were able to get inside the trailer safely. 5. I later called Charles Hunt and spoke personally to him about this incident, and asked him to keep his dog locked up. I told him that my children were afraid to play in their yard, and told him that Rocky seemed to spend more time in the trailer park area than he did in his own yard. Mr. Hunt was agreeable, and stated that he would keep the dog out of the trailer park.6. After this incident Rocky continued to be seen in the trailer park, and for the safety of my children I simply kept them inside most of the time. I also know that my husband Clarence Wells, called Charles Hunt on more than one occasion to complain about the dog.The affidavit of Kip L. Boatwright, an industrial worker who used to live in thetrailer park near the defendants, stated: 3. . . . On one occasion, prior to March 8, 1983, their german shepard (sic) dog attacked me while I was outside my trailer. This attack was unprovoked by me. I had a 2 x 4 inPage 325 front of me when the dog attacked, and his teeth bit into the 2 x 4. I was literally put in fear of my life, and ran to safety inside my trailer. 4. One of Charles Hunt's family members came down and got the dog, and I told him what had happened and told him to keep the dog locked up - that it was dangerous - and that I would shoot it if it came on my property again. He didn't seem to care one bit, and the dog continued to roam the area after this incident. Jernigan & Maxfield, by John A. Maxfield and Leonard T. Jernigan, Jr., for plaintiff appellant. Young, Moore, Henderson & Alvis, by David P. Sousa and Ralph W. Meekins, for defendant appellees. PHILLIPS, Judge.[1] The foregoing materials when viewed in the light most favorable to the non-movant plaintiff, as our law requires Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316 (1979), tend to show that defendants' dog was running loose with their consent when it bit plaintiff and that they had knowledge that the dog hadtried to bite other persons on two prior occasions. Defendants, after arguing intheir brief that the incident described in Mrs. Wells' affidavit involved only aharmless manifestation of spirit by the dog, conceded that the dog's conduct, asreported, could be "construed by a jury as amounting to vicious propensities." That concession was in order and we agree with it, since Mrs. Wells purportedly saw the events recounted, complained directly to the defendant Charles Hunt about them, and the word "snapping" when used in describing a dog's approach to a person is usually understood to mean that the dog was snapping its teeth in aneffort to bite that person. But as to Boatwright's affidavit, which describes aneven stronger manifestation of vicious propensities, defendants argue that it isinsufficient to establish their knowledge of that incident because the affidavitdoes not state that Boatwright told one of the defendants about it. This argument is rejected. The affidavit states that Boatwright told a member of defendants' family about the attack and notice of an animal's vicious propensities to a family member of the animal's keeper or owner is usually notice to the owner or keeper. 3APage 326C.J.S. Animals Sec. 181 (b), p. 676 (1973). This rule, applicable in all cases involving domestic animals, is particularly appropriate in cases involving dogs that are family pets; for such dogs are usually looked after by the entirefamily, at least to some extent, and what one family member knows about, the exploits of the family dog is usually known by the other family members. Furthermore, notice to one joint keeper of a domestic animal is also notice to the other keeper, 3A C.J.S., supra, and the affidavit indicates that the family member that the affiant notified was one of the dog's joint, keepers since he "came down and got the dog." Contrary to defendants' argument, that, plaintiff neither alleged nor showed by other evidence that this family member who came for the dog was one of the dog's keepers, is immaterial at this
View Full Document
Unlocking...