As Judge Harry Martin said, “[t]he dog is of a noble, free nature, yet is domesticated and dedicated to the well-being of people of all races.” [State v. Wallace, 49 N.C. App 475, 477 , 271 S.E. 2d 760, 762 (1980)]. Thus, the acts committed by the dogs in this case should not cast aspersion on the species as a whole.
Holcombe v. Colonial Associates, LLC, 358 N.C. 501, 597 S.E.2d 710 (2004).
STEPHENS V. COVINGTON
Announced 18 February 2014.
Authored by Judge Calabria for a unanimous panel of the North Carolina Court of Appeals.
Appeal from an Order by the Honorable Gary E. Trawick in New Hanover County Superior Court.
The North Carolina Court of Appeals affirmed summary judgment dismissing claims against Mr. and Mrs. Covington arising from a personal tragedy for everyone involved. An eight-year-old boy suffered severe shoulder and leg injuries when a 200 pound rottweiler owned by the Covingtons’ tenants viciously attacked him. After summary judgment, the plaintiffs proceeded to a jury trial against the dog’s owners and obtained a substantial, but uncollectable verdict. After all claims had been reduced to final judgment, the plaintiffs appealed the grant of summary judgment for the Covingtons.
North Carolina law provides that landlords can be liable for injuries caused by their tenant’s dogs, under a premises liability theory. Even though, as then-Associate Justice Parker’s dissenting opinion noted, “an animal is not a condition of the premises” like a, “hole that can be filled, or a broken step that can be repaired.”
Analysis of the landlord’s liability centers around two questions: 1) Notice, and 2) Control.
Notice. If the landlord knows, or reasonably ought to know the animal in-question is dangerous, the notice requirement is satisfied. In the Holcomb case cited above, the landlord had actual notice that two rottweilers owned by its tenant were often allowed to run freely around the property, and had attacked visitors on more than one occasion. In another Court of Appeals decision, that plaintiff offered the testimony of a local veterinarian tending to show the rottweiler breed could be dangerous, though the vet testified they could also be good family dogs. That same Court of Appeals panel held that owners of an animal were responsible for (“charged with”) knowing that animal’s propensities and predispositions.
In Stephens, there was apparently no evidence of previous assaults by the rottweiler, or other reason to worry about this specific dog aside from its breed. Among other arguments and evidence, the Stephens plaintiffs relied on testimony from an animal control officer, who indicated the rottweiler breed can be dangerous, but that an animal’s socialization is more important. One of the plaintiff’s arguments in this appeal was essentially: the proposition that Rottweilers are dangerous is already accepted in our caselaw, so it should be left to the jury to make the decision on notice in this specific case.
As an aside, insurance companies are the ones with all the data and the insurance marketplace seems to suggest there is real-life merit to the argument that rottweilers are per se dangerous, or perhaps, that dangerous rottweilers can lead to expensive claims.
Control. This issue did not receive tremendous focus in the court’s decision, because they found the notice issue to be dispositive. Terms pertaining to pets in a lease can be used to determine the landlord’s control over a dangerous animal. Perhaps the notice issue is also why the defendants were allowed to obtain summary judgment without first producing a copy of the two-year, written lease at-issue despite requests for production (see the first footnote).
Ancillary Landlord-Tenant Concerns. These issues present an interesting North Carolina landlord-tenant law planning conundrum. As stated in Holcomb,
In the case sub judice, the lease agreement required the tenant to ‘remove any pet … within forty-eight hours of written notification from the landlord that the pet, in the landlord’s sole judgment, creates a nuisance or disturbance or is, in the landlord’s opinion, undesirable.’ Thus, landlord and tenant contractually agreed that landlord would retain control over tenant’s dogs.
Does the prudent landlord try to maintain ignorance of their tenant’s pets as a liability shield? Might a landlord concerned with excessive barking or property damage from an unruly dog unwittingly subject themselves to liability for dog bites? Should the prudent landlord plan to practice diligent monitoring of their tenant’s pets, ready to order removal at the first hint that a pet might be dangerous? Perhaps a residential landlord should insist their tenants purchase liability insurance (providing coverage for the landlord as well), as is almost universally done in the North Carolina commercial landlord-tenant context. Suffice it to say, the landlord’s potential liability for their tenant’s pets is yet another reason to engage the services of a qualified North Carolina attorney if you find yourself ready to lease your property, let alone the unlikely event that you have to deal directly with something like the life-altering tragedy underlying this lawsuit.