{ "id": 8521512, "name": "JANICE BILLMAN WILLIAMS v. THOMAS E. (Jock) TYSINGER and wife, PEGGY J. TYSINGER", "name_abbreviation": "Williams v. Tysinger", "decision_date": "1990-02-20", "docket_number": "No. 8919SC3", "first_page": "438", "last_page": "442", "citations": [ { "type": "official", "cite": "97 N.C. App. 438" } ], "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": "17 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1941, "pin_cites": [ { "page": "678-79" }, { "page": "678" } ], "opinion_index": 0 }, { "cite": "220 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11305234 ], "year": 1941, "pin_cites": [ { "page": "488-89" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0485-01" ] }, { "cite": "152 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "301" }, { "page": "301" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0046-01" ] }, { "cite": "259 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "388" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552319 ], "year": 1979, "pin_cites": [ { "page": "406-07" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0400-01" ] }, { "cite": "136 S.E. 113", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "pin_cites": [ { "page": "115" } ], "opinion_index": 0 }, { "cite": "192 N.C. 804", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627041 ], "year": 1926, "pin_cites": [ { "page": "807" } ], "opinion_index": 0, "case_paths": [ "/nc/192/0804-01" ] }, { "cite": "184 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571713, 8571746, 8571572, 8571606, 8571643 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0619-04", "/nc/279/0619-05", "/nc/279/0619-01", "/nc/279/0619-02", "/nc/279/0619-03" ] }, { "cite": "183 S.E.2d 270", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "272-73" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549421 ], "year": 1971, "pin_cites": [ { "page": "345-46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0342-01" ] }, { "cite": "212 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551949 ], "year": 1975, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0186-01" ] }, { "cite": "237 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "293 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564208 ], "year": 1977, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0356-01" ] } ], "analysis": { "cardinality": 522, "char_count": 8534, "ocr_confidence": 0.776, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.41203097168985525 }, "sha256": "e06bb5db8b30618e68f5c922a9d27740cf8b61111f64b899948f2c500abb1750", "simhash": "1:73b58c4351a74464", "word_count": 1404 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WELLS concurs.", "Judge Phillips dissents." ], "parties": [ "JANICE BILLMAN WILLIAMS v. THOMAS E. (Jock) TYSINGER and wife, PEGGY J. TYSINGER" ], "opinions": [ { "text": "PARKER, Judge.\nPlaintiff Janice Williams instituted this action seeking medical expenses resulting from personal injuries allegedly sustained by her minor child when he was kicked in the face by a horse owned by defendants Thomas E. and Peggy J. Tysinger. At trial the judge granted defendants\u2019 motion for a directed verdict at the close of plaintiff\u2019s evidence and entered judgment thereon.\nOn appeal, plaintiff argues that the evidence, taken in the light most favorable to her, raises a jury issue as to whether defendants violated a duty to their business invitees by inviting the children to play with the horse without warning of the danger of which they had actual or constructive knowledge. Defendants contend that the directed verdict was proper because plaintiffs evidence failed to establish that defendants had prior knowledge, actual or constructive, that their horse had a dangerous or vicious propensity.\nOn appellate review of a directed verdict all evidence must be considered in the light most favorable to the nonmovant. Snider v. Dickens, 293 N.C. 356, 357, 237 S.E.2d 832, 833 (1977). Reviewing the evidence by this standard, we hold that the trial judge did not err.\nPlaintiff\u2019s evidence at trial tended to show the following. On 28 May 1983 plaintiff, her husband, and their two sons went to defendants\u2019 house to inquire about some lumber which the Williamses had ordered. Mr. Tysinger owned a sawmill located a few miles from defendants\u2019 home in Randolph County, North Carolina, and regularly received customers at his home where he also had his office for the lumber business. The children waited in the car while plaintiff and her husband conversed with defendants on the porch of their house. After about ten minutes, plaintiff had the boys get out of the car. Mr. Tysinger suggested that the boys go around to the back of the house to play with the horse and cow pastured there. The horse and cow were kept in a field surrounded by a wooden board fence approximately four feet high. Plaintiff asked whether it was safe for the children to play with the animals since the children had never been around such animals before. Mrs. Tysinger stated that the horse and cow had been raised around her children and that they would not hurt anyone. The children then went to the back yard. One of the boys was eleven; the other was nine. In a few minutes plaintiff heard her older son, Daniel, yell that her younger son, Matthew Jonathan (herein \u201cJimmy\u201d), had been hurt. She ran around to the pasture and found Jimmy lying on his back in the field.\nDaniel testified that Jimmy had been inside the fence petting the horse. As Daniel attempted to climb through the fence into the pasture, the horse became scared and reared up, kicking Jimmy. Jimmy flew through the air and landed on his back. Jimmy was taken by ambulance to Moses Cone Memorial Hospital, kept overnight for observation of a concussion, and released the next day. Jimmy also sustained permanent dental injury.\nIn North Carolina the owner is not liable for injury resulting from the behavior of a domestic animal unless the owner had prior knowledge of the animal\u2019s dangerousness or unless there is evidence showing that a reasonable person would have had such knowledge. See Sanders v. Davis, 25 N.C. App. 186, 189, 212 S.E.2d 554, 556 (1975);. Miller v. Snipes, 12 N.C. App. 342, 345-46, 183 S.E.2d 270, 272-73, cert. denied, 279 N.C. 619, 184 S.E.2d 883 (1971).\nThe rule governing liability of the owner of an animal that has injured someone has been stated as follows:\nThe liability of an owner for injuries committed by domestic animals, such as dogs, horses and mules, depends upon two essential facts:\n1. The animal inflicting the injury must be dangerous, vicious, mischievous or ferocious, or one termed in the law as possessing a \u201cvicious propensity.\u201d\n2. The owner must have actual or constructive knowledge of the vicious propensity, character and habits of the animal.\nRector v. Coal Co., 192 N.C. 804, 807, 136 S.E. 113, 115 (1926), quoted in Griner v. Smith, 43 N.C. App. 400, 406-07, 259 S.E.2d 383, 388 (1979). Applying this standard in Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297 (1967), our Supreme Court ruled that the gravamen of the action is not negligence, but the wrongful keeping of the animal with knowledge of its viciousness. Id. at 51, 152 S.E.2d at 301.\nThe prior behavior of an animal is admissible to show both the animal\u2019s vicious propensities and the owner\u2019s actual or constructive knowledge of such propensities, even though the behavior falls short of actual injury. See Hill v. Moseley, 220 N.C. 485, 488-89, 17 S.E.2d 676, 678-79 (1941). Additionally, the animal\u2019s reputation, while inadmissible to show directly the animal\u2019s vicious propensities, is admissible to show the owner\u2019s knowledge of the alleged propensity and to corroborate the testimony of those who have sworn to the animal\u2019s viciousness. Id. at 488, 17 S.E.2d at 678.\nIn the present case plaintiff failed to offer any evidence of defendants\u2019 prior knowledge of the horse\u2019s viciousness or any evidence from which such prior knowledge could be inferred. Plaintiff did offer evidence showing that the horse charged and struck out with its hooves at both the ambulance crew and Mr. Tysinger while Jimmy\u2019s injuries were being treated in the pasture. While this evidence of subsequent vicious behavior by the horse is corroborative of the horse\u2019s propensity to engage in the conduct which injured Jimmy, as a subsequent act it was not probative on the issue of defendants\u2019 knowledge prior to Jimmy\u2019s injury. The only evidence presented by plaintiff relating to defendants\u2019 prior knowledge of the horse\u2019s nature was Mrs. Tysinger\u2019s statement that the horse was raised around her children and grandchildren and that it was safe for plaintiff\u2019s children also. This statement tended to show that defendants believed the animal was well-disposed towards children.\nAlthough plaintiff alleges in her complaint that defendants failed to use due care in their control, management and restraint of the horse, the record is devoid of any evidence to support this allegation. The evidence showed that the horse remained at all times in the pasture which was surrounded by a wooden rail fence approximately four feet high. Hence defendants\u2019 alleged liability is not premised on their negligent failure to restrain or manage the horse but on their keeping of an animal possessing a \u201cvicious propensity.\u201d In this situation, liability, if any, is dependent upon the owner\u2019s or keeper\u2019s knowledge of the animal\u2019s dangerousness. See Swain v. Tillett, 269 N.C. at 51, 152 S.E.2d at 301.\nPlaintiff having failed to produce evidence of defendants\u2019 knowledge of the horse\u2019s vicious propensities or evidence that a reasonable person would have had such knowledge, defendants were entitled to a directed verdict.\nNo error.\nJudge WELLS concurs.\nJudge Phillips dissents.", "type": "majority", "author": "PARKER, Judge." }, { "text": "Judge PHILLIPS\ndissenting.\nPlaintiff\u2019s action does not fit into the \u201ckeeping a dangerous animal\u201d niche that the majority confines it to. The main thrust of the complaint, her evidence, and her argument here is that defendants were negligent in inviting and encouraging inexperienced children to go into the horse lot by themselves and play with the animal. In my view, however tame and mild the animal may have appeared to the defendants, gratuitously encouraging young children unfamiliar with large animals to go in a lot and play with a horse by themselves is evidence of negligence, and the jury should have been permitted to consider it.", "type": "dissent", "author": "Judge PHILLIPS" } ], "attorneys": [ "Ottway Burton, P.A., by Ottway Burton, for plaintiff-appellant.", "Henson Henson Bayliss & Teague, by Jack B. Bayliss, Jr. and Lawrence J. DAmelio, III, for defendant-appellees." ], "corrections": "", "head_matter": "JANICE BILLMAN WILLIAMS v. THOMAS E. (Jock) TYSINGER and wife, PEGGY J. TYSINGER\nNo. 8919SC3\n(Filed 20 February 1990)\nAnimals \u00a7 2.2 (NCI3d)\u2014 child kicked by horse \u2014no showing of horse\u2019s prior viciousness\nIn an action to recover for injuries sustained by plaintiffs minor child when he was kicked in the face by a horse owned by defendants, the trial court properly directed verdict for defendants where plaintiff failed to offer any evidence of defendants\u2019 prior knowledge of the horse\u2019s viciousness or any evidence from which such prior knowledge could be inferred.\nAm Jur 2d, Animals \u00a7\u00a7 86, 100.\nJudge Phillips dissenting.\nAPPEAL by plaintiff from judgment entered 30 August 1988 by Judge William Z. Wood in RANDOLPH County Superior Court. Heard in the Court of Appeals 24 August 1989.\nOttway Burton, P.A., by Ottway Burton, for plaintiff-appellant.\nHenson Henson Bayliss & Teague, by Jack B. Bayliss, Jr. and Lawrence J. DAmelio, III, for defendant-appellees." }, "file_name": "0438-01", "first_page_order": 466, "last_page_order": 470 }