{ "id": 6778491, "name": "JOSHUA STEPHENS, Plaintiff v. SHELBY COVINGTON, JAMES HEWETT, and GLENDA HEWETT, Defendants", "name_abbreviation": "Stephens v. Covington", "decision_date": "2014-02-18", "docket_number": "No. COA13-431", "first_page": "497", "last_page": "502", "citations": [ { "type": "official", "cite": "232 N.C. App. 497" } ], "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": "358 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987313 ], "opinion_index": -1, "case_paths": [ "/nc/358/0501-01" ] }, { "cite": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "385" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "547 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "478", "parenthetical": "citation omitted" }, { "page": "474" }, { "page": "478", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11432701 ], "year": 2001, "pin_cites": [ { "page": "55", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0045-01" ] }, { "cite": "442 N.W.2d 201", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 2863022 ], "year": 1989, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/neb/232/0714-01" ] }, { "cite": "714 A.2d 881", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1537482 ], "year": 1998, "pin_cites": [ { "parenthetical": "leasing company knew dog had vicious tendencies and had control over dog's presence on the property" } ], "opinion_index": 0, "case_paths": [ "/md/350/0666-01" ] }, { "cite": "118 Cal. Rptr. 741", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1975, "pin_cites": [ { "parenthetical": "landlord renewed tenants' lease with knowledge that tenants' dog previously attacked two people" } ], "opinion_index": 0 }, { "cite": "110 S.W.3d 126", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9103471 ], "year": 2003, "pin_cites": [ { "page": "130", "parenthetical": "\"[I]f a landlord has actual knowledge of an animal's dangerous propensities and presence on the leased property, and has the ability to control the premises, he owes a duty of ordinary care to third parties who are injured by this animal.\"" } ], "opinion_index": 0, "case_paths": [ "/sw3d/110/0126-01" ] }, { "cite": "597 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2004, "pin_cites": [ { "page": "712" }, { "page": "713" }, { "page": "712-13" }, { "page": "712" }, { "page": "715", "parenthetical": "emphasis added" }, { "page": "712-13" }, { "page": "715", "parenthetical": "emphasis added" }, { "page": "716" } ], "opinion_index": 0 }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] }, { "cite": "358 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987313 ], "weight": 2, "pin_cites": [ { "page": "503" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0501-01" ] } ], "analysis": { "cardinality": 631, "char_count": 12793, "ocr_confidence": 0.725, "pagerank": { "raw": 6.848989183728895e-08, "percentile": 0.417604655715449 }, "sha256": "3020ee980a016e84051434c834804ecfba3a15faef29e9573dd15bf4967010a5", "simhash": "1:ef095e36812ca47a", "word_count": 2021 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEPHENS concur." ], "parties": [ "JOSHUA STEPHENS, Plaintiff v. SHELBY COVINGTON, JAMES HEWETT, and GLENDA HEWETT, Defendants" ], "opinions": [ { "text": "CALABRIA, Judge.\nJoshua Stephens (\u201cplaintiff\u2019) appeals from an order granting summary judgment in favor of Shelby Covington (\u201cdefendant\u201d). Defendants James and Glenda Hewett (collectively, \u201cthe Hewetts\u201d) are not parties to this appeal. Plaintiff only appeals the 3 October 2012 order granting summary judgment in defendant\u2019s favor. We affirm.\nI. Background\nIn the early 1990s, the Hewetts leased a home located on Louisiana Avenue in Wilmington, North Carolina (\u201cthe property\u201d) from defendant\u2019s husband, John Covington (\u201cMr. Covington\u201d) (collectively with defendant, \u201cthe Covingtons\u201d). Mr. Covington knew that the Hewetts owned a Rottweiler (\u201cRocky\u201d), and since the houses in the neighborhood were close together, Mr. Covington and the Hewetts contacted Animal Control regarding safety measures for keeping a dog. As a precaution and at the direction of Animal Control, the Hewetts created a fenced area in the backyard with two gates and posted \u201cBeware of Dog\u201d and \u201cNo Trespassing\u201d signs on each gate.\nShortly after the Hewetts leased the property, but prior to purchasing it, Rocky grew so large that the Hewetts began keeping Rocky exclusively in the fenced area. At the time the incident in the instant case occurred, plaintiff was eight years old. Plaintiff visited his friend Jeremy Hewett (\u201cJeremy\u201d), the Hewetts\u2019 nine-year-old son. During plaintiffs visit, plaintiff followed Jeremy when he entered the fenced area to refill Rocky\u2019s water dish. While the boys stood in the fenced area, Rocky bit plaintiff\u2019s lower leg. Jeremy hit Rocky with a stick to make him release plaintiff. When Jeremy was unsuccessful, he ran to get his mother. Rocky briefly released plaintiff, but then bit him again, catching plaintiff\u2019s shoulder in his teeth. Eventually Glenda Hewett managed to release plaintiff from Rocky, and a neighbor pulled plaintiff over the fence, safely away from Rocky. Plaintiff sustained \u201cextremely severe\u201d injuries to both his leg and shoulder. Animal Control officers investigated and took statements from witnesses. After Rocky remained at the animal shelter for a ten day mandatory quarantine period, James Hewett decided to have him euthanized.\nIn October 2008, after plaintiff reached majority, he filed a complaint against the Covingtons and the Hewetts. However, since Mr. Covington died in 1998, the complaint was voluntarily dismissed without prejudice. Plaintiff refiled the complaint against the Hewetts and defendant on 27 January 2011. Plaintiff alleged, inter alia, negligence against the Hewetts and defendant. On 21 November 2012, the trial court entered a final judgment of $500,000 against the Hewetts as compensatory damages. On 12 March 2012, defendant filed a motion for summary judgment. After a hearing in New Hanover County Superior Court, the trial court entered an order on 3 October 2012 granting defendant\u2019s motion. Plaintiff appeals the order granting summary judgment in defendant\u2019s favor.\nII. Standard of Review\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that \u2018there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). \u201cWhen considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.\u201d Id. (citation omitted).\nIII. Landlord\u2019s Liability to Third Parties for Injuries bv Tenant-Owned Doss\nPlaintiff argues the trial court erred by granting defendant\u2019s motion for summary judgment because there was a genuine issue of material fact as to whether defendant had control over the dangerous animal which attacked plaintiff. We disagree.\nPlaintiff\u2019s argument relies primarily upon Holcomb v. Colonial Assocs., L.L.C., in which our Supreme Court considered \u201cwhether a landlord can be held liable for negligence when his tenant\u2019s dogs injure a third party.\u201d 358 N.C. 501, 503, 597 S.E.2d 710, 712 (2004). la Holcomb, a contractor sustained injuries when a tenant\u2019s Rottweiler dog \u201clunged\u201d at him, causing him to fall to the ground. Id. at 504, 597 S.E.2d at 713. The landlord had allowed the tenant to keep two Rottweiler dogs which were permitted to run freely on the property despite the landlord\u2019s awareness of two prior instances of aggression on the part of the dogs, one of which resulted in a bite. Id. at 504, 597 S.E.2d at 712-13. The landlord continued to allow the dogs despite a written lease agreement which required the tenant to promptly remove any pet the landlord deemed to be a nuisance or undesirable. Id. at 503, 597 S.E.2d at 712.\nUnder a premises liability theory, the Holcomb Court held that the landlord could be held hable because the \u201clease provision granted [landlord] sufficient control to remove the danger posed by [tenant\u2019s dogs.\u201d Id. at 508-09, 597 S.E.2d at 715 (emphasis added). Plaintiff in the instant case contends that there was a genuine issue of material fact as to whether defendant possessed similar control over Rocky at the time he was attacked.\nHowever, as all of the cases relied upon by the Holcomb Court make clear, it is not mere generalized control of leased property that establishes landlord liability for a dog attack, but rather specific control of a known dangerous animal. See Batra v. Clark, 110 S.W.3d 126, 130 (Tex.App.-Houston 1st Dist. 2003) (\u201c[I]f a landlord has actual knowledge of an animal\u2019s dangerous propensities and presence on the leased property, and has the ability to control the premises, he owes a duty of ordinary care to third parties who are injured by this animal.\u201d); Uccello v. Laudenslayer, 118 Cal. Rptr. 741 (1975) (landlord renewed tenants\u2019 lease with knowledge that tenants\u2019 dog previously attacked two people); Shields v. Wagman, 714 A.2d 881 (Md. 1998) (leasing company knew dog had vicious tendencies and had control over dog\u2019s presence on the property); McCullough v. Bozarth, 442 N.W.2d 201, 208 (Neb. 1989) (landlord only liable for injuries caused by tenant\u2019s dog when he has \u201cactual knowledge of the dangerous propensities of the dog and . . . nevertheless leased the premises to the dog\u2019s owner or . . . had the power to control the harboring of a dog by the tenant and neglected to exercise that power.\u201d). The Holcomb Court was able to presume the dog which attacked the contractor in that case was dangerous, because the undisputed evidence before it was that the landlord had knowledge of the dogs\u2019 previous attacks and dangerous propensities. Id. at 504, 597 S.E.2d at 712-13. Nonetheless, it was still clear from that decision that it was not merely the landlord\u2019s control of the property, but particularly the landlord\u2019s \u201csufficient control to remove the danger posed\u201d which resulted in the landlord\u2019s liability. Id. at 508, 597 S.E.2d at 715 (emphasis added). Thus, pursuant to Holcomb and the cases cited therein, a plaintiff must specifically establish both (1) that the landlord had knowledge that a tenant\u2019s dog posed a danger; and (2) that the landlord had control over the dangerous dog\u2019s presence on the property in order to be held liable for the dog attacking a third party.\nIn the instant case, there is no evidence that defendant or her husband knew or had reason to know that Rocky was dangerous. While Mr. Covington requested that James Hewett contact Animal Control prior to Rocky occupying the property, deposition testimony indicates that the purpose behind this call was to obtain advice on erecting a fence to confine the dog to the yard in accordance with local ordinances, rather than because the dog had displayed any aggression. The record also indicates that there were no reported incidents of aggression, and no one had complained about Rocky to Animal Control or to the Covingtons prior to plaintiff\u2019s visit on 25 January 1996. During the investigation of the incident, Animal Control officers did not interview the Covingtons. Animal Control officer Chloe Rivenbark testified at her deposition in the matter that \u201cthere was really no need to talk to [the Covingtons]. [Animal Control officers] were dealing mainly with the children and the families that were involved.\u201d Finally, defendant specifically testified in her deposition that \u201cthe dog didn\u2019t have a bad name of biting anybody or anything that I ever heard tell of [sic],\u201d and that Mr. Covington \u201cwould have not allowed [sic] . .. anything there that was dangerous[.]\u201d Thus, unlike the landlord in Holcomb, defendant did not have knowledge of a dangerous dog on the property.\nNonetheless, plaintiff contends that defendant did not need to have actual knowledge of Rocky\u2019s dangerous propensities because this Court has previously held that dog owners in a negligence action were \u201cchargeable with the knowledge of the general propensities of the Rottweiler animal.\u201d Hill v. Williams, 144 N.C. App. 45, 55, 547 S.E.2d 472, 478 (2001) (citation omitted). In Hill, a local veterinarian testified that the Rottweiler breed was \u201caggressive and temperamental, suspicious of strangers, protective of their space, and unpredictable.\u201d Id. at 48, 547 S.E.2d at 474. The defendants presented no evidence to refute the plaintiffs\u2019 evidence of the breed\u2019s aggressive tendencies, and as a result, they were \u201cchargeable ... with knowledge of the general propensities of a Rottweiler dog as reflected in plaintiffs\u2019 evidence[.]\u201d Id. at 55, 547 S.E.2d at 478 (emphasis added).\nIn the instant case, plaintiff did not present any evidence demonstrating that the Rottweiler breed is generally dangerous. The only evidence regarding the general propensities of Rottweilers was the deposition testimony of Animal Control Officer Ron Currie (\u201cOfficer Currie\u201d). Officer Currie testified that socializing individual dogs is more indicative of an animal\u2019s behavior than breed. He also testified that Rottweilers are not necessarily aggressive by their very nature. Thus, the evidence presented regarding the propensities of a Rottweiler dog, in the instant case, does not support a finding that Rottweilers are generally dangerous. Accordingly, Hill\u2019s statement regarding the dangerousness of Rottweilers, which was specific to the evidence presented in that case, is not applicable to the instant case.\nUltimately, there is nothing in the record to suggest that defendant knew a dangerous dog was on the property. Rocky had no prior history of attacks, and neither the Covingtons nor Animal Control were aware of any complaints regarding the dog\u2019s aggression or viciousness. Defendant could not have known that Rocky was dangerous, as there was no evidence prior to 25 January 1996 that the dog exhibited vicious tendencies.\nIV. Conclusion\nIn the light most favorable to plaintiff, the evidence fails to show that defendant knew that Rocky had dangerous propensities prior to his attack on plaintiff. Since plaintiff has failed to establish that Rocky was a danger, he has failed to establish that defendant possessed \u201csufficient control to remove the danger posed\u201d under Holcomb. 358 N.C. at 508, 597 S.E.2d at 716. Plaintiff\u2019s assumption that defendant had knowledge of Rocky\u2019s dangerous propensities based upon breed is misplaced, as the record indicates that the Rottweiler breed is not inherently aggressive. As such, there is no genuine issue of material fact, and the trial court correctly granted defendant\u2019s motion for summary judgment. We affirm the order of the trial court.\nAffirmed.\nJudges ELMORE and STEPHENS concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, and The Kirby Law Firm, by Albert D. Kirby, Jr., for plaintiff-appellant.", "Culbreth Law Firm, LLP, by Stephen E. Culbreth, for defendant-appellee." ], "corrections": "", "head_matter": "JOSHUA STEPHENS, Plaintiff v. SHELBY COVINGTON, JAMES HEWETT, and GLENDA HEWETT, Defendants\nNo. COA13-431\nFiled 18 February 2014\nAnimals \u2014 dog bite \u2014 landlord\u2019s liability \u2014 no knowledge of dangerous propensities\nThe trial court correctly granted defendant\u2019s motion for summary judgment in a negligence action against a landlord by a child bitten by a tenant\u2019s Rottweiler. The evidence failed to show that defendant knew the dog had dangerous propensities prior to his attack on plaintiff, thus failing to establish that defendant possessed sufficient control to remove the danger under Holcomb v. Colonial Assocs., L.L.C., 358 N.C. 501. Plaintiff\u2019s assumption that defendant had knowledge of the dog\u2019s dangerous propensities based upon breed was misplaced, as the record indicated that the Rottweiler breed is not inherently aggressive.\nAppeal by plaintiff from order entered 3 October 2012 by Judge Gary E. Trawick in New Hanover County Superior Court. Heard in the Court of Appeals 9 October 2013.\nSmith Moore Leatherwood LLP, by Matthew Nis Leerberg, and The Kirby Law Firm, by Albert D. Kirby, Jr., for plaintiff-appellant.\nCulbreth Law Firm, LLP, by Stephen E. Culbreth, for defendant-appellee." }, "file_name": "0497-01", "first_page_order": 507, "last_page_order": 512 }