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NCSU ARE 306 - NORTH CAROLINA COURT OF APPEALS

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NO. COA00-222 NORTH CAROLINA COURT OF APPEALS Filed: 5 June 2001 RICHARD RAY HILL AND WIFE, SOPHIA HILL, Plaintiffs, v. STEPHEN T. WILLIAMS AND WIFE, PATRICIA WILLIAMS, Defendants and Third-Party Plaintiffs, v. DELLINGER DRYWALL, INC., Third-Party Defendant. Appeal by defendants from judgment entered 22 June 1999 and order entered 9 July 1999 by Judge Richard D. Boner in Lincoln County Superior Court. Heard in the Court of Appeals 10 January 2001. Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by E. Fielding Clark, II, for plaintiff-appellees. Baucom, Claytor, Benton, Morgan & Wood, P.A., by Rex C. Morgan, for defendant-appellants. JOHN, Judge. Defendants and third-party plaintiffs Stephen T. Williams and his wife Patricia Williams (defendants), appeal the trial court=s 22 June 1999 judgment (the judgment) and the court=s 9 July 1999 order. We conclude defendants= appeal is unfounded. Plaintiffs Richard Ray Hill (Richard) and his wife, Sophia Hill, filed the instant action 12 February 1997, alleging ARowdy@ (Rowdy), a Rottweiler dog owned by defendants, attacked Richard and-2- severed a portion of his right ear. Plaintiffs sought recovery on two theories. First, plaintiffs asserted defendants were negligent in failing to keep Rowdy restrained while Richard was working on their property. Plaintiffs also claimed defendants knew or should have known of Rowdy=s vicious propensities. Plaintiffs sued for actual medical damages, lost wages, and loss of consortium. Defendants denied plaintiffs= allegations in their 25 March 1997 answer and further pled Richard=s alleged contributory negligence as a defense. In addition, defendants subsequently filed a third-party complaint against Drywall, Richard=s employer at the time of the incident. Drywall answered, denying the material allegations of the third-party complaint. The evidence adduced at trial tended to show the following: In February of 1994, Richard, a drywall finisher, was employed by Drywall in the construction of defendants= new home at Lake Norman. Although Drywall employees and other tradespersons worked daily at the residence, defendants were employed in Statesville during the day and Rowdy was allowed to roam their lakefront lot without supervision while defendants were absent. However Rowdy, a fully grown male weighing approximately one hundred-twenty pounds, was constrained by an underground electrical shock fence to restrict him to defendants= property. Richard testified, Ahe didn=t trust the dog,@ when he first saw it at the premises and consequently placed a scrap piece of sheetrock across the stairway to block Rowdy from coming upstairs where Richard was working at defendants= home.-3- Robin and Loy Dellinger (Robin; Loy) were co-owners of Drywall. Robin testified that, upon seeing Rowdy during his first visit to the job site, he was Ataken back@ because the dog was a Rottweiler. Loy related that he asked defendants if the dog would bite him or his employees and was told Rowdy was Aplayful and he wouldn=t bite[.]@ On 16 February 1994, Robin asked Richard to help repair a texturizing machine hooked up to a van parked near the lake on defendants= lot. Although he had seen Rowdy lying near the waterfront earlier that day, Richard stopped his work inside the residence and accompanied Robin to the machine. As the pair began their repairs, Rowdy jumped on Richard, knocked him against the machine, bit off Richard=s ear and swallowed it. Robin grabbed Richard and thrust him into the passenger seat of the van. Rowdy thereupon ran to the open passenger side window and again jumped at Richard. After Richard closed the window, Robin drove the van to the hospital. Rowdy pursued the vehicle to the extent allowed by the electric fence. As a result of the attack, Richard underwent substantial surgery and was hospitalized three times. Mitchell Dellinger (Mitchell) testified that, prior to the commencement of construction on defendants= house, he went to the site to administer ground termite treatment. Rowdy jogged towards Mitchell=s truck and barked at him. Mitchell would not get out of the truck because of the size of the dog. When Patricia Williams came out, Mitchell asked her to confine the dog and she did so. Dr. David Wilson (Dr. Wilson), a local veterinarian who had-4- treated over five hundred Rottweiler dogs since the 1980's, was qualified as plaintiffs= expert witness. Dr. Wilson testified that the Rottweiler breed was brought to the United States from Germany in the mid-1980's for use as a guard dog or a dog of personal protection. He indicated the breed was aggressive and temperamental, suspicious of strangers, protective of their space, and unpredictable. Dr. Wilson further related that he took great care in examining mature Rottweiler dogs in his veterinary practice, and that he had a safety concern with Rottweilers because they were considered to be dogs that might bite. However, he also acknowledged he had seen Rottweiler dogs be great family dogs. Finally, Dr. Wilson conceded he did not consider himself an expert on the behavior characteristics and traits of the Rottweiler breed, and that he had no opinion concerning the Rottweiler in question. At the close of plaintiffs= evidence, the trial court granted defendants= motion to dismiss plaintiffs= claim of keeping an animal with vicious propensities. However, the court denied defendants= corresponding motion to dismiss plaintiffs= negligence claim. Defendants testified they had purchased Rowdy as a puppy and family pet in 1990. Karen Knox (Knox), John Brawley (Brawley) and Beth Webster (Webster), friends and relatives of defendants, related having observed Rowdy on several occasions during visits to defendants= home between 1991 and 1994. According to Knox, she had never observed Rowdy act aggressively or in a dangerous manner. Brawley stated Rowdy was a good house pet and especially good with children. Webster indicated she had never observed Rowdy growl and-5- noted the dog acted fine, even when defendants were not at home and other people were on the property. Harry Williams, who constructed the foundation for defendants= new residence, testified that Rowdy acted fine around him and other tradespersons. At the close of all evidence, defendants= renewed motions for directed verdict were denied. The trial court subsequently instructed the jury that plaintiffs had the burden of proving


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NCSU ARE 306 - NORTH CAROLINA COURT OF APPEALS

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