Curlee by and through Becerra v. Johnson
| Decision Date | 07 April 2020 |
| Docket Number | No. COA19-701,COA19-701 |
| Citation | 842 S.E.2d 604,270 N.C.App. 657 |
| Parties | Ricky CURLEE, a minor BY AND THROUGH his Guardian ad litem Karina BECERRA, individually, Plaintiff, v. John C. JOHNSON, III, Stacey Talado and Raymond Craven, Defendants. |
| Court | North Carolina Court of Appeals |
Law Office of Michael D. Maurer, P.A., Raleigh, by Michael D. Maurer, and Burton Law Firm, PLLC, by Jason M. Burton, for plaintiff-appellants.
Simpson Law, PLLC, by George Simpson, for defendant-appellee John C. Johnson.
Ricky Curlee and his mother, Karina Becerra, ("Plaintiffs") appeal from an order entered granting summary judgment in favor of John C. Johnson, III. We affirm.
In 2000, Johnson leased a single-family residential property located at 132 Gower Circle ("the Property") in Garner to Raymond Craven and Stacie Talado. Following the expiration of the initial one-year lease term, Craven and Talado remained Johnson's tenants on a month-to-month basis. At the time of trial, Craven and Talado continued to maintain their tenancy at the Property with their minor children. Johnson collects the rental payment at the end of the driveway at the Property or at the Wal-Mart store where Talado acquires cashier's checks to pay the rent.
Craven and Talado owned a dog they had named "Johnny." Johnny was given to them as a puppy by a friend. Craven believed Johnny's sire was a black lab and his dam was "like a collie-looking kind of dog."
Talado and Craven's children were playing with a neighbor's minor child, P.K. who is wholly unrelated to Plaintiffs, on 13 October 2014, when an incident occurred. P.K.'s mother had told her son not to play rough with Johnny, but she continued to allow P.K. and his sister to go over to and visit Craven and Talado's home with Johnny being present.
Talado described the incident: "[P.K.] was just playing with the dog, kind of wrestling with him, and [Johnny] nicked the top of his head." The "nick" occurred when P.K. raised his head up while wrestling with Johnny. Talado described the "nick" as "about the size of my pinkie nail."
Chad Massengill, Johnston County's Animal Services ("JCAS") Director, affirmed the hospital did not document the incident in a report and the "nick" was minor. When investigating the October 2014 incident, Director Massengill classified Johnny's breed as a "Retriever, Labrador/Terrier, American Pit Bull." Director Massengill based this classification upon his visual identification.
Johnny was quarantined for ten days following the 13 October 2014 incident. JCAS determined Johnny did not satisfy the statutory definition of either a dangerous dog or even a potentially dangerous dog. No preventative measures of the Johnston County Ordinances relating to keeping animals were required of Talado and Craven. Johnny was returned to Talado and Craven following the expiration of the ten-day quarantine.
Director Massengill advised Talado and Craven of voluntary steps they could take to minimize the risks of keeping Johnny, including placing "Beware of Dog" signs on the property and keeping Johnny on a leash anytime children were around. Nothing in the record shows JCAS notified Johnson of this 2014 incident, as the owner of the property.
Over six months later, seven-year-old Curlee visited the Property to play with Craven and Talado's children. Curlee lived on Gower Circle with his parents, Becerra and Ricky Curlee, Sr. During his visit, Talado and Craven had restrained Johnny with a leash on the Property.
Curlee walked within the radius of the leash restraining Johnny while walking home. While inside the radius, Curlee pointed a toy gun at Johnny's head. Johnny bit Curlee on his cheek and tore the tissue off. Plaintiff's complaint alleges Curlee suffered severe and permanent facial disfigurement and psychological injuries as a result of the incident. JCAS responded to the incident, took possession of Johnny, and followed Craven and Talado's instructions to euthanize the dog.
Plaintiffs initially sued Johnson only, and alleged negligence and strict liability on 5 July 2016. Following discovery, Johnson filed a Rule 56 motion for summary judgment under North Carolina Rules of Civil Procedure. Before this motion was heard, Plaintiffs voluntarily dismissed their complaint.
Ten days before the third anniversary of the incident, Plaintiffs re-filed their claims against Johnson and added Craven and Talado as co-defendants on 6 March 2018. Craven and Talado proceeded pro se and did not file answers to the complaint. Plaintiffs moved for and were granted an entry of default on 17 July 2018 solely against Craven and Talado.
Johnson denied liability, timely filed, and served his answer. Following discovery, Johnson filed his motion for summary judgment, which was granted by the trial court. Plaintiffs timely filed a notice of appeal.
Plaintiffs concede their appeal is interlocutory, but assert without immediate appeal their substantial rights will be impacted. See N.C. Gen. Stat. § 7A-27(b)(3)(a) (2019). "Entry of judgment for fewer than all the defendants is not a final judgment and may not be appealed in the absence of certification pursuant to Rule 54(b) unless the entry of summary judgment affects a substantial right." Camp v. Leonard , 133 N.C. App. 554, 557, 515 S.E.2d 909, 912 (1999) (citations omitted).
Our Supreme Court has held that a grant of summary judgment as to fewer than all of the defendants affects a substantial right when there is the possibility of inconsistent verdicts, stating that it is the plaintiff's right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries.
Id. (citations and internal quotation marks omitted).
This Court has held a substantial right is affected when "(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists." N.C. Dep't of Transportation v. Page , 119 N.C. App. 730, 736, 460 S.E.2d 332, 335 (1995) (citations omitted). Here, the same factual issues apply to all claims against the property owner and the tenants. Two trials may bring about inconsistent verdicts relating to Plaintiff's damages. We conclude Plaintiffs assert a substantial right to have the liability of all defendants be determined in one proceeding. Id.
This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)(3)(a) (2019). We address the merits of Plaintiff's interlocutory appeal.
Plaintiffs argue the trial court erred in granting summary judgment for Johnson.
"Summary judgment is appropriate if the 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 [a] party is entitled to judgment as a matter of law." Summey v. Barker , 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citation and internal quotation marks omitted); see N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019).
On Defendant's motion for summary judgment in a negligence action:
Draughon v. Harnett Cty. Bd. of Educ. , 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003) (citations and quotation marks omitted), aff'd per curiam , 358 N.C. 131, 591 S.E.2d 521 (2004) (emphasis supplied).
This Court recently stated: Hamby v. Thurman Timber Company, LLC , 260 N.C. App. 357, 818 S.E.2d 318, 323 (2018) (citation omitted). However, this "forecast of evidence" must still demonstrate "specific facts, as opposed to allegations, showing [Plaintiff] can at least establish a prima facie case at trial." Id. ; Draughon , 158 N.C. App. at 212, 580 S.E.2d at 735.
In order to hold a landlord liable for injuries caused by a tenant's dog to a visitor, "a plaintiff must specifically establish both (1) that the landlord had knowledge that a tenant's dog posed a danger; and (2) that the landlord had control over the dangerous dog's presence on the property in order to be held liable for the dog attacking a third party." Stephens v. Covington , 232 N.C. App. 497, 500, 754 S.E.2d 253, 255 (2014) (citations omitted).
The crux of this case is whether Johnson had prior knowledge Johnny posed a danger. Specifically, within this context, "posed a danger" is not a generalized or amorphous standard, but ties directly back to our common-law standard for liability in dog-attack cases: "that the landlord had knowledge of the dogs' previous attacks and dangerous propensities." Id.
This standard is consistent with the common-law standard applicable to the owner or keeper of the animal requiring prior knowledge of the animal's vicious propensity as an essential element in dog-bite cases to establish liability. "[T]he gravamen of the cause of action is not negligence, but rather the wrongful keeping of the animal with knowledge of its viciousness." Holcomb v. Colonial Assoc., L.L.C. , 358 N.C. 501, 511, 597 S.E.2d 710, 717 (2004) (alterations, citations,...
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Curlee v. Johnson
...and thus granted summary judgment in landlord's favor.¶ 9 A divided panel of the Court of Appeals affirmed. Curlee v. Johnson , 270 N.C. App. 657, 666, 842 S.E.2d 604, 611 (2020). The Court of Appeals cited the following rule:In order to hold a landlord liable for injuries caused by a tenan......