{ "id": 8555540, "name": "ROBERT L. SWANEY Individually and ROBERT L. SWANEY as Guardian Ad Litem for Jane C. Swaney, Minor v. WILLIAM A. SHAW", "name_abbreviation": "Swaney v. Shaw", "decision_date": "1975-12-03", "docket_number": "No. 7526SC511", "first_page": "631", "last_page": "635", "citations": [ { "type": "official", "cite": "27 N.C. App. 631" } ], "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": "138 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "262 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569608 ], "year": 1964, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0550-01" ] }, { "cite": "277 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565250, 8565219, 8565157, 8565126, 8565191, 8565100 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0351-06", "/nc/277/0351-05", "/nc/277/0351-03", "/nc/277/0351-02", "/nc/277/0351-04", "/nc/277/0351-01" ] }, { "cite": "176 S.E. 2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550122 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0319-01" ] }, { "cite": "151 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "268 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564336 ], "year": 1966, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0605-01" ] } ], "analysis": { "cardinality": 563, "char_count": 10377, "ocr_confidence": 0.586, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2060129760460938 }, "sha256": "13acb3f3bdd9385c9b6d8811b4673bfdfed545c1aa9e23319b845abda1387163", "simhash": "1:c16ac4498a2da75a", "word_count": 1782 }, "last_updated": "2023-07-14T22:44:36.927205+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge. Brock and Judge Clark concur." ], "parties": [ "ROBERT L. SWANEY Individually and ROBERT L. SWANEY as Guardian Ad Litem for Jane C. Swaney, Minor v. WILLIAM A. SHAW" ], "opinions": [ { "text": "HEDRICK, Judge.\nThe only question requiring discussion raised by the plaintiffs\u2019 assignments of error is whether the court sufficiently declared and explained the law arising on the evidence given in the case as provided in G.S. 1A-1, Rule 51(a).\nIn their complaint the plaintiffs, in pertinent part, alleged:\n\u201c3. On January 17, 1971, and prior thereto, defendants were the owners and keepers of two German Shepherd dogs, known as Duchess and Fritz on and about their premises on Garrison Road in the County of Mecklenburg, State of North Carolina.\n4. On January 17, 1971, and prior thereto, defendants knew or in the exercise of due care, should have known that said dogs had on many occasions prior, to January 17, 1974, growled at children in the defendants\u2019, neighborhood on or about Garrison Road, had barked at children in the neighborhood, and had chased children who were on foot and on bicycles in their neighborhood, had been allowed to go about unrestrained and allowed to roam freely in the neighborhood, had on many occasions engaged in fights with other dogs in the neighborhood, had tried to bite children on many occasions, and in fact, had bitten children prior to January 17, 1971.\n5. On January 17, 1971 and prior thereto, defendants knew from their dogs\u2019 past conduct, that said dogs and each of them were likely, if not restrained, to inflict personal injuries to a child or other person in their neighborhood; the defendants on January 17, 1971, and prior thereto, knew that their two dogs, and each of them, was dangerous, vicious, mischievous and ferocious; said defendants were familiar with said dogs\u2019 vicious propensity, character and habits.\n6. On January 17, 1971, and prior thereto, the defendants with knowledge of the said two dogs\u2019 vicious propensities, and with knowledge of said dogs\u2019 unrestrained freedom creating a menace to the public health, continued to harbour such dogs and continued to permit said dogs to leave the defendants\u2019 premises without being on a leash and in the care of a responsible person, all in violation of N.C.G.S. 106-381.\n* h= *\n9. On January 17, 1971, plaintiff, Robert L. Swaney, was the father of Jane C. Swaney, a minor who was born April 19, 1963.\n10. On January 17, 1971, Jane C. Swaney was playing in a neighbor\u2019s yard on Garrison Road, Mecklenburg County, State of North Carolina, with her older brother and another boy; on said occasion, Jane C. Swaney, walked or ran, within about 10 feet, by one of the defendants\u2019 dogs as heretofore described, when suddenly and without warning and without any provocation, said dog, belonging to the defendants, lunged at Jane C. Swaney, knocked her to the ground, repeatedly bit her on and about her face and other parts of her body, tearing away portions of her facial tissues, fracturing her left cheekbone, nose and portions of the interior of her mouth, inflicting serious and permanent injuries to the person of Jane C. Swaney.\u201d\nAt trial the plaintiffs offered evidence tending to show the following:\nThe plaintiffs and defendant live on Garrison Road, in a residential section of Mecklenburg County. On 17 January 1971, the minor plaintiff, Jane Swaney, seven years of age, was playing with her brother Doug and Dale Rushing in the Rush-ings\u2019 yard, which is also on Garrison Road, approximately a quarter to a half mile up from the Shaws and eight hundred yards down from the Swaneys. The defendant owned two German Shepherd dogs, Fritz and Astor. On 17 January, Fritz had followed one of the defendant\u2019s children, Rocky, into the Rush-ings\u2019 yard, and was \u201claying down near the house.\u201d There were several other children playing at the Rushings on their basketball court. Jane, Doug, and Dale had been playing \u201ckeep away\u201d about fifteen feet from the dog when Jane stopped playing and started to go into the house to get some water. She was about ten feet from Fritz when the dog, without warning, attacked her. Jane had not done anything to Fritz. Fritz knocked Jane down and straddled her. He bit her on the face inflicting severe lacerations over the face, torn tissues and a fracture of the nose. Jane\u2019s brother Robby, who was playing on the basketball court, heard Jane\u2019s screams and ran over to her. He had to pull Fritz off of her. Because of her wounds, she was hospitalized and later had to undergo plastic surgery.\nPlaintiffs offered, in addition, testimony by Grady Dale Rushing that; prior to 17 January, one of the Shaws\u2019 two dogs had bitten him once and torn his pants leg. He testified that when he went to the Shaws\u2019 house the dogs \u25a0 \u201cwould bark and growl\u201d at him and \u201cnip\u201d at him. When he went with people in an automobile to the Shaws\u2019 house, no one would get out of the car for fear of the dogs. Instead, they would blow the horn and \u25a0yrait for someone to come out of the house.\nDoug Swaney testified that prior to 17 January the dogs chased him on his bike and once Fritz had nipped his leg and torn his pants. When he was in a car which was driven to the Shaws, he likewise would blow the horn and wait for someone to come out because of fear of the dogs.\nE.va Swaney, the minor plaintiff\u2019s mother, testified that the bite pn Doug\u2019s leg had broken the skin and she had called and talked with Mr. Shaw about the dog bite and had inquired whether the dogs had been vaccinated. Also prior to 17 Jan-\u00fa'aryj sh&had complained on several occasions to the Shaws\u2019 son, Rocky, about the dog, and had asked him to not let the dog come up the street to their house. Fritz often fought other dogs around the Swaneys\u2019 home, and the Swaneys feared that someone would get hurt.\n: Rocky Shaw testified that his father had no fence in which to contain the dogs, either before or after, the incident on 17 January, nor had he ever seen his father tie up Fritz; Instead Fritz-had been free to roam and would follow Rocky when he went off up the street.\nWhile the judge correctly undertook to declare and explain the law arising on the evidence given in the case with respect to the common law rule of keeping and maintaining a domestic animal which the defendant knew, or by the exercise of ordinary care should have known, was of vicious propensity, we need not discuss the adequacy of this instruction, since a more significant and prejudicial error is apparent in the court\u2019s failure and refusal to instruct the jury with respect to G.S. 106-381, which provides:\nConfinement or leashing of vicious animals. \u2014 When an animal becomes vicious or a menace to the public health, the owner of such animal or person harboring such animal shall not permit such animal to leave- the' premises on which kept unless \u25a0 on leash in the care : of a responsible person.\n\u201cThe violation of a statute which imposes a duty upon the defendant in order to promote the safety of others, including the plaintiff, is negligence per se, unless the statute, itself, otherwise provides . . . . \u201d Ratliffe v. Power Co., 268 N.C. 605, 610, 151 S.E. 2d 641, 645 (1966). Accord, Gray v. Clark, 9 N.C. App. 319, 176 S.E. 2d 16 (1970), cert. denied 277 N.C. 351 (1970).\n\u201c[W]here a statute or m\u00fanicipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty, he is liable to those for whose protection or. benefit it was imposed for any injuries or damage of the character which the statute or ordinance was designed to prevent, and which was proximately produced by such neglect, provided the injured party is free from contributory negligence.\u201d Carr v. Transfer Co., 262 N.C. 550, 553, 138 S.E. 2d 228, 231 (1964).\nIt seems clear that G.S. 106-381 was enacted for the specific purpose of protecting the public from dogs which have become vicious or a .menace to public health. When the evidence in the present case, is considered in the light most favorable to the plaintiffs, it. is sufficient, in our opinion, to raise an inference that the defendant violated the statute by letting his dog, Fritz, which had become vicious or a menace to the public health, to leave the premises on which kept, without being on a leash and in the, care of a responsible person, and that as a direct and proximate result of the defendant\u2019s violation of the statute, the defendant\u2019s dog,' Fritz, attacked and bit the minor plaintiff causing the injuries and damages herein complained ,0f.\nBecause the court \u2019 failed to declare and explain the law arising on the evidence given in the case with respect to the evidence tending to show that the defendant violated G.S. 106-381, the plaintiffs are entitled to a new trial.\nNew trial.\nChief Judge. Brock and Judge Clark concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Winstein, Sturges, Odom, Bigger and Jonas by T. LaFon-tine Odom for plaintiff appellants.", "Caudle, Underwood & Kinsey by C. Ralph Kinsey, Jr., and Lloyd C. Caudle, for defendant appellee." ], "corrections": "", "head_matter": "ROBERT L. SWANEY Individually and ROBERT L. SWANEY as Guardian Ad Litem for Jane C. Swaney, Minor v. WILLIAM A. SHAW\nNo. 7526SC511\n(Filed 3 December 1975)\nAnimals \u00a7 2\u2014 child bitten by dog \u2014 statute requiring confinement of vicious animals \u2014 failure to instruct\nIn an action to recover damages and medical expenses for injuries received by minor plaintiff when she was bitten by defendant\u2019s dog, the trial court erred in failing to instruct the jury with respect to the statute requiring the confinement or leashing of vicious animals, G.S. 106-381, where plaintiff\u2019s evidence tended to show that the dog-had previously bitten other children, that the dog would bark and growl at persons going near it, that persons going to defendant\u2019s home were' afraid to get out of their car because of defendant\u2019s dogs, that defendant knew of the vicious propensities of the dog, and that the dog was not confined by a fence or tied but was allowed to roam freely.\nAppeal by plaintiffs from Chess, Judge. Judgment entered 6 February 1975 in Superior Court, Mecklenburg County. Heard in the Court, of Appeals 14 October 1975.\nThis is a civil action wherein the plaintiffs, Robert L. Swaney, individually and as guardian ad litem for Jane C. Swaney, his minor daughter, are seeking to recover damages and medical expenses from the defendant, William A. Shaw, allegedly resulting from the minor plaintiff having been bitten by defendant\u2019s dog. Plaintiffs requested a jury trial. From a verdict in defendant\u2019s favor and judgment entered that plaintiffs recover nothing, plaintiffs appealed.\nWinstein, Sturges, Odom, Bigger and Jonas by T. LaFon-tine Odom for plaintiff appellants.\nCaudle, Underwood & Kinsey by C. Ralph Kinsey, Jr., and Lloyd C. Caudle, for defendant appellee." }, "file_name": "0631-01", "first_page_order": 659, "last_page_order": 663 }