{ "id": 9130787, "name": "JUSTIN D. JOSLYN, a minor, by and through his GUARDIAN AD LITEM, CAROL JOSLYN, Plaintiff v. DELMER BLANCHARD and wife, UNA MAY BLANCHARD, WILLIAM LEWIS and wife, BARBARA LEWIS, Defendants", "name_abbreviation": "Joslyn ex rel. Joslyn v. Blanchard", "decision_date": "2002-04-02", "docket_number": "No. COA01-398", "first_page": "625", "last_page": "630", "citations": [ { "type": "official", "cite": "149 N.C. App. 625" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 67-4.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 67-4.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "178 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1970, "pin_cites": [ { "page": "23-24" }, { "page": "2" }, { "page": "29" }, { "page": "6" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550559 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/10/0022-01" ] }, { "cite": "197 Ore. 637", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 5032744 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "639" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/or/197/0637-01" ] }, { "cite": "54 A.2d 458", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1947, "pin_cites": [ { "page": "460" } ], "opinion_index": 0 }, { "cite": "136 N.J.L. 76", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 101061 ], "year": 1947, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/njl/136/0076-01" ] }, { "cite": "152 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1967, "pin_cites": [ { "page": "301", "parenthetical": "quoting Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458, 460 (1947)" }, { "page": "302" }, { "page": "302" }, { "page": "302" }, { "page": "302" } ], "opinion_index": 0 }, { "cite": "269 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561786 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "51", "parenthetical": "quoting Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458, 460 (1947)" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0046-01" ] }, { "cite": "64 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "663" } ], "opinion_index": 0 }, { "cite": "233 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613112 ], "year": 1951, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0560-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534-35" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "266 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "615" } ], "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] }, { "cite": "421 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505409, 2504968, 2504747, 2505141, 2504699 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0345-01", "/nc/332/0345-02", "/nc/332/0345-05", "/nc/332/0345-04", "/nc/332/0345-03" ] }, { "cite": "417 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313291 ], "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0397-01" ] }, { "cite": "381 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "376 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527773 ], "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0020-01" ] }, { "cite": "57 N.C.L. Rev. 827", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1979, "pin_cites": [ { "page": "907-08" } ], "opinion_index": 0 }, { "cite": "290 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "606" }, { "page": "595" }, { "page": "596" } ], "opinion_index": 0 }, { "cite": "305 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572803 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0603-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "406 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "850", "parenthetical": "noting that the granting of summary judgment in favor of one defendant does not finally determine all of the claims in the case and is thus an interlocutory order" } ], "opinion_index": 0 }, { "cite": "329 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557153 ], "year": 1991, "pin_cites": [ { "page": "490-91", "parenthetical": "noting that the granting of summary judgment in favor of one defendant does not finally determine all of the claims in the case and is thus an interlocutory order" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0488-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "381" }, { "page": "382" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "361-62" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 635, "char_count": 12790, "ocr_confidence": 0.743, "pagerank": { "raw": 1.4222097845754402e-07, "percentile": 0.6492592811395568 }, "sha256": "e6bd080e1555569ac609e22a64bc308413d46598b22ced2fa76e9b43c46afaef", "simhash": "1:8708dc222c2fa424", "word_count": 2094 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and BRYANT concur." ], "parties": [ "JUSTIN D. JOSLYN, a minor, by and through his GUARDIAN AD LITEM, CAROL JOSLYN, Plaintiff v. DELMER BLANCHARD and wife, UNA MAY BLANCHARD, WILLIAM LEWIS and wife, BARBARA LEWIS, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nPlaintiff appeals from the order of the trial court granting summary judgment in favor of defendants William and Barbara Lewis. For the reasons set forth herein, we affirm the judgment of the trial court.\nThe facts pertinent to the present appeal are as follows: On 8 March 2000, Carol Joslyn filed a complaint in Craven County Superior Court on behalf of her minor son, Justin D. Joslyn (\u201cplaintiff\u2019). The complaint alleged that plaintiff suffered serious injury when he was bitten in the face by a dog belonging to Delmer and Una May Blanchard (\u201cthe Blanchards\u201d). According to the complaint, the injury occurred when the seven-year-old plaintiff accompanied his father to the Blanchard residence. Plaintiff entered the back yard of the Blanchard residence through an open gate in the fence surrounding the property. Plaintiff approached the Blanchard\u2019s dog, which was chained within the fence, and was bitten.\nAt the time of the incident, the Blanchards rented their residence from William and Barbara Lewis (\u201cdefendants\u201d). The complaint alleged negligence on defendants\u2019 part in that they \u201cwere aware of the violent nature of Defendant Blanchard\u2019s dog and w[ere] very cautious when around the dog[,]\u201d but nevertheless allowed the Blanchards to keep the dog on the property.\nDefendants thereafter filed a motion for summary judgment, which was heard by the trial court on 6 November 2000. Finding no genuine issues as to any material fact, the trial court concluded that defendants were entitled to judgment as a matter of law and therefore granted summary judgment in favor of defendants. From this order, plaintiff appeals.\nThe sole issue on appeal is whether the trial court properly granted summary judgment in favor of defendants. For the reasons stated herein, we conclude that summary judgment was properly granted, and we therefore affirm the trial court.\nWe note initially that plaintiffs appeal is interlocutory, as it does not dispose of the case, but instead leaves it for further action by the trial court in order to settle and determine the entire controversy. See Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950); see also Cook v. Bankers Life and Casualty Co., 329 N.C. 488, 490-91, 406 S.E.2d 848, 850 (1991) (noting that the granting of summary judgment in favor of one defendant does not finally determine all of the claims in the case and is thus an interlocutory order). We do not generally review interlocutory appeals. See Veazey, 231 N.C. at 362, 57 S.E.2d at 382. Under the provisions of sections l-277(a) and 7A-27(d) of the North Carolina General Statutes, however, an appeal of right lies from an interlocutory order affecting \u201ca substantial right\u201d of the parties. N.C. Gen. Stat. \u00a7\u00a7 1-277(a), 7A-27(d) (1999). In Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982), our Supreme Court stated that \u201c \u2018the right to avoid the possibility of two trials on the same issues can be such a substantial right.\u2019 \u201d Id. at 606, 290 S.E.2d at 595 (quoting Survey of Developments in North Carolina Law, 1978, 57 N.C.L. Rev. 827, 907-08 (1979)).\nThis general proposition is based on the following rationale: when common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn \u201ccreatfes] the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.\u201d\nDavidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25, 376 S.E.2d 488, 491 (quoting Green, 305 N.C. at 608, 290 S.E.2d at 596), disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989).\nIn the instant case, we conclude that plaintiff\u2019s appeal affects a substantial right because of the possibility of inconsistent verdicts. Plaintiff\u2019s claims arise over possible negligence by the Blanchards and by defendants. In their answer to plaintiffs complaint, defendants have reserved, the defense of contributory negligence by plaintiff. It is conceivable that in a proceeding against the Blanchards alone, the jury could find that plaintiff was contributorily negligent. If, in an appeal from that verdict, plaintiff renews his appeal of the dismissal of defendants, and we were to conclude that the dismissal was improperly granted, then a second trial would be required as against defendants. It is possible that at the second trial, a jury could find that plaintiff was not contributorily negligent, thus resulting in inconsistent verdicts on the same factual issue. See Hoots v. Pryor, 106 N.C. App. 397, 402, 417 S.E.2d 269, 273 (concluding that an appeal from summary judgment granted in favor of one defendant in a negligence suit involving multiple defendants implicated plaintiffs substantial right to avoid the possibility of two trials on the same issue where contributory negligence on the part of plaintiff was alleged), disc. review denied, 332 N.C. 345, 421 S.E.2d 148 (1992).\nAs we determine that there is a possibility of inconsistent verdicts if the case at bar were to be tried in two separate proceedings, we conclude that plaintiffs appeal of summary judgment in favor of defendants is not premature and should not be dismissed. We therefore address the merits of plaintiffs appeal.\nPlaintiff argues that the trial court improperly granted summary judgment in favor of defendants. Plaintiff asserts that there exists a genuine issue of material fact as to defendants\u2019 knowledge of the vicious propensities of the dog and the degree of control defendants exercised over the property.\nSummary judgment is proper where \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1999); Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980). Where the pleadings and proof disclose that no cause of action exists, summary judgment is properly granted. See Kessing v. Mortgage Corp., 278 N.C. 523, 534-35, 180 S.E.2d 823, 830 (1971).\nIn order to recover at common law for injuries inflicted by a domestic animal, a plaintiff must show both \u201c(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal\u2019s vicious propensity, character, and habits.\u201d Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663 (1951). \u201c \u2018The gravamen of the cause of action in this event is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness[.]\u2019 \u201d Swain v. Tillett, 269 N.C. 46, 51, 152 S.E.2d 297, 301 (1967) (quoting Barber v. Hochstrasser, 136 N.J.L. 76, 79, 54 A.2d 458, 460 (1947)). Thus, liability for injuries inflicted by animals does not depend upon the ownership of the animal, \u201c \u2018but the keeping and harboring of an animal, knowing it to be vicious.\u2019 \u201d Id. at 52, 152 S.E.2d at 302 (quoting Hunt v. Hazen, 197 Ore. 637, 639, 254 P.2d 210, 211 (1953)).\nThe owner of an animal is the person to whom it belongs. See id. at 51, 152 S.E.2d at 302. A keeper is \u201cone who, either with or without the owner\u2019s permission, undertakes to manage, control, or care for the animal as owners in general are accustomed to do.\u201d Id. Nothing else appearing, the keeper of a vicious animal is liable for injuries inflicted by it upon another. See id. at 52, 152 S.E.2d at 302.\nIn Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1 (1970), the minor plaintiff filed suit against a landlord and his wife in order to recover for injuries she sustained after being thrown from a horse owned by the defendants\u2019 tenant. In her complaint, the plaintiff alleged that \u201cthe horse was cared for, stabled and used as a riding horse by the defendants ...; that the horse was dangerous and vicious and these traits were known to defendants; that defendants failed to exercise due care by allowing the horse to be wrongfully kept on their premises . . . ; and that plaintiff\u2019s injuries were proximately caused by defendants\u2019 negligence.\u201d Id. at 23-24, 178 S.E.2d at 2. The trial court subsequently denied the defendants\u2019 motion for summary judgment, and the defendants appealed to this Court.\nReversing the trial court, the Patterson Court concluded that the plaintiff had \u201cfailed to show that she can offer any competent evidence to prove that the defendants were the \u2018keepers\u2019 of the animal here involved.\u201d Id. at 29, 178 S.E.2d at 6. Because the defendants did not \u201cmanage, control, or care for\u201d the horse, the plaintiff had failed to prove an essential element of her claim. The Court also concluded that the plaintiff had failed to show that the defendants knew or should have known of any vicious propensities of the animal. The Court therefore held that the trial court erred in denying the defendants\u2019 motion for summary judgment.\nIn the case sub judice, plaintiff has produced even less evidence than the plaintiff in Patterson that defendants managed, controlled or cared for the dog that injured plaintiff. Plaintiffs complaint and supporting affidavits contain no allegations whatsoever to support any connection between defendants and the dog, beyond the fact that they permitted the Blanchards to keep the dog on the property. As such, plaintiff has failed to prove that defendants were the \u201ckeepers\u201d of the animal here involved, as defined by our Supreme Court in Swain. See Swain, 269 N.C. at 51, 152 S.E.2d at 302.\nPlaintiff further argues that defendants are strictly liable under section 67-4.4 of our General Statutes, which provides that \u201c[t]he owner of a dangerous dog shall be strictly liable in civil damages for any injuries or property damage the dog inflicts upon a person, his property, or another animal.\u201d N.C. Gen. Stat. \u00a7 67-4.4 (1999). Under section 67-4.1, an owner is defined as \u201cany person or legal entity that has a possessory property right in a dog.\u201d N.C. Gen. Stat. \u00a7 67-4.1(a)(3) (1999). Plaintiff has produced no evidence that defendants have any type of possessory property right in the dog that injured plaintiff. Plaintiffs argument that defendants are strictly liable under the North Carolina General Statutes is therefore without merit.\nPlaintiff having failed to show that there is a genuine issue of material fact, we hold that the trial court correctly granted defendants\u2019 motion for summary judgment. The order of the trial court is hereby\nAffirmed.\nJudges MARTIN and BRYANT concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Ayers & Haidt, P.A., by James M. Ayers, II, for plaintiff appellee.", "Wallace, Morris & Barwick, P.A., by PC. Barwick, Jr., and Elizabeth A. Heath, for defendant appellants William and Barbara Lewis." ], "corrections": "", "head_matter": "JUSTIN D. JOSLYN, a minor, by and through his GUARDIAN AD LITEM, CAROL JOSLYN, Plaintiff v. DELMER BLANCHARD and wife, UNA MAY BLANCHARD, WILLIAM LEWIS and wife, BARBARA LEWIS, Defendants\nNo. COA01-398\n(Filed 2 April 2002)\n1. Appeal and Error\u2014 appealability \u2014 partial summary judgment \u2014 multiple defendants \u2014 right to avoid two trials on same issues \u2014 substantial right\nAlthough plaintiff appeals from an interlocutory order granting summary judgment for two of the defendants in a negligence case against multiple defendants arising from a dog biting incident, an appeal of right lies from an interlocutory order affecting a substantial right of the parties, including the right to avoid two trials on the same issues and the right to avoid the possibility of inconsistent verdicts.\n2. Animals\u2014 dog biting \u2014 summary judgment \u2014 landlords\u2014 knowledge of vicious propensities of dog \u2014 degree of control over property\nThe trial court did not err in an action alleging negligence based on a dog biting incident by granting summary judgment in favor of defendant landlords even though plaintiff asserts there exists a genuine issue of material fact as to defendants\u2019 knowledge of the vicious propensities of the dog and the degree of control defendants exercised over the property, because: (1) plaintiff failed to produce evidence that defendants managed, controlled, or cared for the dog that injured plaintiff; and (2) defendants are not strictly liable under N.C.G.S. \u00a7 67-4.4 for allegedly owning a dangerous dog since plaintiff has produced no evidence that defendants have any type of possessory property right in the dog that injured plaintiff as required by N.C.G.S. \u00a7 67-4.1(a)(3).\nAppeal by plaintiff from order entered 17 January 2001 by Judge Russell J. Lanier, Jr., in Craven County Superior Court. Heard in the Court of Appeals 10 January 2002.\nAyers & Haidt, P.A., by James M. Ayers, II, for plaintiff appellee.\nWallace, Morris & Barwick, P.A., by PC. Barwick, Jr., and Elizabeth A. Heath, for defendant appellants William and Barbara Lewis." }, "file_name": "0625-01", "first_page_order": 659, "last_page_order": 664 }