Below are what we consider to be the most important dog bite decisions in North Carolina.
Potential Coverage Issues
UPC v. Suprenant, No. 7:17-CV-96-FL, 2018 WL 4655728 (E.D.N.C. 2018)
Misrepresentation of a dog’s breed or history may lead to coverage disputes if a claim is asserted. In Suprenant, the claimants applied for home insurance and owned a Mastiff dog at the time of application. The relevant policy defined Mastiffs as dangerous dogs. The claimants disclosed that they owned a dog at the time of application, represented they wanted to go with United Property & Casualty Insurance Company as their carrier, and stated the dog was old and may only live for a year or two. On their application, the claimants answered no to owning any vicious or dangerous breeds of dogs. The dog was not present at the time of inspection.
After the policy was issued and the claimants moved in, the dog bit a minor guest in the face, causing her to seek medical treatment. A liability claim was made under the homeowner’s insurance policy. UPC filed a diversity action alleging that no coverage was available due to the claimants committing material misrepresentations and fraud on their insurance application. On review, the court held that the claimants had committed a material misrepresentation because the policy would not have been issued if the underwriter knew the claimants owned the dog. The UPC guidelines classified a mastiff as “dangerous per se.”
Practice Tips: Always ask whether the applicant has any pets and, if so, what type. Also, list any exclusions for certain breeds within the policy or at least within the carrier guidelines.
Confinement and Restraint of Dog
Mims v. Parker, 269 N.C. App. 489, 839 S.E.2d 433 (2020)
Defendant’s children were walking their bulldog on a leash when the dog began barking at Plaintiff. The dog broke his collar, ran toward Plaintiff, and attacked her resulting in injuries. Plaintiff brought suit under theories of negligence and strict liability. Plaintiff’s expert testified that the American bulldog was a dangerous breed of dog. Defendant’s dog had no prior incidents or complaints. The issues were whether the bulldog was a dangerous dog under N.C. Gen. Stat. 67-4.1(a)(1) and whether Defendants were negligent in failing to properly restrain the dog.
Plaintiff argued that the statute’s plain language does not require a prior dangerous act and asked the court to interpret the statute so that in instances where the animal “has committed the most damaging of attacks, a dog is automatically a dangerous dog.” The court rejected this argument. Plaintiff also argued that the dog was a dangerous dog because of his breed and should have been restrained by more than a leash. The court also rejected this argument and held that there were no prior incidents that would have put Defendant on notice that the dog required restraints beyond a collar and leash.
Practice Tips: Always ask whether any dog owned by the applicant has ever attacked anyone or has been designated as a potentially dangerous dog by animal control. Also, make sure that insureds keep their dogs on a leash when on walks and that dogs are kept in a fence or otherwise restrained when being kept outside on the insured’s property.
Test of Liability
Sink v. Moore, 267 N.C. 344, 148 S.E.2d 265 (1966)
Plaintiff was riding his bike when the Defendant Feltons’ dog ran out from their front yard and began to chase Plaintiff. While Plaintiff was distracted by the dog, Plaintiff collided with a vehicle driven by Defendant Moore. Plaintiff sued both Defendant Moore and Defendant Feltons’ for negligence. Plaintiff argued that Defendant Feltons’ dog should be classified as a vicious animal under N.C. Gen. Stat. 67-130A-200 because the dog had a history of dashing into the street to bark and chase passing vehicles, however, there were no prior attacks on humans by the dog. The court found that the dog’s history of dashing into the street and chasing vehicles was irrelevant to determining whether the dog was vicious. There was no evidence of the dog coming into physical contact with Plaintiff and that there was no evidence of the dog biting or attempting to attack Plaintiff. The court held that the injury was not foreseeable by Defendant Feltons’ given the dog’s lack of viciousness.
Practice Tip: Always ask whether the insured’s dog has any past history of attacks or physical contact with humans.
Landlords and Premises Liability
Holcomb v. Colonial Associates, LLC, 358 N.C. 501, 597 S.E.2d 710 (2004)
Defendant Colonial owned two rental properties, which were managed by Management Associates. Defendant Olson, a tenant of Defendant Colonial, had two Rottweiler dogs when the lease only allowed him to keep one dog. The dogs were not frequently confined and had previously attacked neighbors. The lease required Defendant Olson to remove any pet within 48 hours of notice from the landlord if the landlord determined that the pet created a disturbance and nuisance. Plaintiff was a contractor who was attacked by Defendant Olson’s dogs when he was working on Defendant Olson’s property.
On appeal, the issues were whether Defendant Colonial was an owner or keeper of Defendant Olson’s dogs for purposes of strict liability and whether Defendant Colonial was liable for the torts of its independent contractor, Management Associates. Strict liability is based on whether the owner or keeper of a dangerous animal knew or should have known of the animal’s dangerous propensities. The court held that since Plaintiff was bringing a negligence action (and not a strict liability) against Defendant Colonial, Plaintiff did not need to prove that Defendant Colonial was the owner or keeper of the animal and thus, could be found liable for negligence. Defendant Colonial argued that a landlord who does not have possession or control of the leased premises is not liable for injuries to third persons. The court found that Defendant Colonial and Defendant Olson contractually agreed that Defendant Colonial would retain control over Defendant Olson’s dogs based on the notice and removal provisions of the lease. The court held that the provisions granted Defendant Colonial and Management sufficient control over the dogs and thus, Defendant Colonial could be liable.
Curlee by and through Becerra v. Johnson, 377 N.C. 97, 856 S.E.2d 478 (2021)
Defendant Johnson owned a single family residential property which was rented to Defendants Craven and Talada. Tenants lived at the property with their children and their dog. A minor child was visiting the property and playing with the dog when the top of the minor’s head collided with the dog’s mouth, causing a minor bite. After the incident, the tenants purchased a “Beware of Dog” sign and placed the dog on a chain when children would play on the property.
Minor Plaintiff Curlee lived with his parents in a house near tenants. Curlee visited the property to play with tenants’ children. As he was walking inside the radius of where the dog was chained, he was bit in the face by the dog. Suit was filed against the tenants and the Landlord (Johnson). Johnson moved for summary judgment, arguing that no duty was breached because there was no evidence presented that Johnson had been made aware of the prior incident involving the dog. The Court of Appeals affirmed summary judgment holding that Plaintiff failed to establish the landlord had knowledge of the dangerous tendencies of the dog and that the landlord had control over the dog’s presence on the property.
On appeal, the Supreme Court affirmed the holding and held that, unlike Holcomb, the landlord had no actual knowledge of any prior attacks by the dog since it was never reported to him. The Court held that evidence of precautions such as the “Beware of Dog” sign was not enough to give a landlord constructive notice that a tenant is harboring a dangerous dog.
Article written with assistance from Cranfill Sumner LLP clerk Devin Honbarger.