Holcomb v. Colonial Associates, LLC

• Decision Date: 25 June 2004
• Docket Number: No. 581A02.,581A02.
• Court: North Carolina Supreme Court
• Parties: Cecil C. HOLCOMB v. COLONIAL ASSOCIATES, L.L.C., and John Olson.

597 S.E.2d 710

358 N.C. 501

Cecil C. HOLCOMB v. COLONIAL ASSOCIATES, L.L.C., and John Olson.

No. 581A02.

Supreme Court of North Carolina.

June 25, 2004.

Smith Moore LLP, by James G. Exum, Jr., Greensboro; and Waller, Stroud, Stewart & Araneda, LLP, by W. Randall Stroud, Cary, for plaintiff-appellant.

Bailey & Dixon, L.L.P., by Gary S. Parsons and Warren T. Savage, Raleigh, for defendant-appellee Colonial.

ORR, Justice.

This case involves the issue of whether a landlord can be held liable for negligence when his tenant's dogs injure a third party. Although the dogs in this case committed vicious acts, we refer the readers of this case to State v. Wallace for a recitation of the many virtues of dogs. 49 N.C.App. 475, 271 S.E.2d 760 (1980). As Judge Harry Martin said, "[t]he dog is of a noble, free nature, yet is domesticated and dedicated to the well-being of people of all races." Id. at 477, 271 S.E.2d at 762. Thus, the acts committed by the dogs in this case should not cast aspersion on the species as a whole.

The facts of this case are as follows: Colonial Associates, L.L.C. ("Colonial" or "defendant") owned thirteen acres of land on Nelson Road in Wake County. There were two houses on this land. Defendant John Olson ("Olson") resided as a tenant in one of the houses. John Feild ("Feild")¹ resided as a tenant in the other house. Management Associates ("Management") managed the rental property for Colonial. Olson's lease granted Colonial² the right to terminate the lease in the event the property was sold for commercial development. The property, including both houses, was posted for sale the entire time Olson resided in the house. The property was listed with Powell Properties, Inc. Colonial knew Powell Properties was showing the house.

Under the terms of the lease, Olson could keep one Rottweiler dog on the property. However, Management permitted Olson to keep two Rottweilers on the property. The lease required Olson to "remove any pet ... within forty-eight hours of written notification from the landlord that the pet, in the landlord's sole judgment, creates a nuisance or disturbance or is, in the landlord's opinion, undesirable."

The evidence demonstrated that the dogs frequently were not confined or restrained and were allowed to run freely. Moreover, on two occasions prior to the incident involving plaintiff, one of Olson's Rottweilers attacked nearby neighbors.

The first such incident occurred sometime in 1993 or 1994. One of the Rottweilers positioned itself between Feild and his vehicle. When Feild "realized that [he] was up against something," he went to another vehicle to get a machete for protection. The dog lunged at Feild and was struck by the machete, resulting in a gash in the dog's nose. Feild stated that he did not see Olson during the incident, but he related the incident to Management.

The second incident occurred sometime before April 1996 and took place nearly 300 feet from Olson's house. Tomas Sanchez, Feild's co-worker, was retrieving scaffolding from Feild's house when both dogs attacked him. One of the dogs bit Sanchez in the leg. Management knew of the incident.

The incident which resulted in the case sub judice occurred on 18 April 1996. Parker Lincoln Developers, a company interested in purchasing Colonial's property, contacted plaintiff Cecil Holcomb, a demolition contractor and licensed builder, to request an estimate on demolishing the two rental homes. Plaintiff visited the rental homes in order to prepare his estimate. He rang the doorbell and knocked on the door to the house where Olson resided. When no one answered, plaintiff stood on the sidewalk and made notes about the house. Plaintiff then walked toward the back of the house where Olson's two dogs approached him and began to threaten him. One of the Rottweilers lunged at plaintiff, causing him to fall to the ground. Plaintiff incurred a distal radius fracture and injured his back when he braced himself for the fall.

On 26 May 1998, plaintiff filed suit against Colonial and Olson in Wake County Superior Court, asserting a strict liability claim against Olson and negligence claims against Olson and Colonial. The trial court denied Colonial's motion for a directed verdict on 22 September 2000. On 26 September 2000, a jury returned a verdict in favor of Holcomb, finding both Olson and Colonial negligent and awarding Holcomb $330,000.00 in damages. On 14 February 2001, the trial court entered an order denying Colonial's motions for judgment notwithstanding the verdict and a new trial.

A divided panel of the Court of Appeals reversed the judgment of the trial court. The Court of Appeals held the trial court erred in failing to direct a verdict or grant Colonial's motion for judgment notwithstanding the verdict after the trial. Holcomb v. Colonial Assocs., 153 N.C.App. 413, 418, 570 S.E.2d 248, 251 (2002). The majority concluded that "plaintiff has failed to establish an essential element of his prima facie case, i.e., that Colonial was an owner or keeper of the two dogs." Id.

The dissenting opinion in the Court of Appeals, however, concluded that "plaintiff presented sufficient evidence on the prima facie elements of his case against Colonial." Id. at 420, 570 S.E.2d at 253. The dissent found plaintiff's facts "tend to support an inference that Colonial is a keeper by virtue of its control evident in the lease," id. at 420, 570 S.E.2d at 252, as required under strict liability.

Plaintiff appealed to this Court as of right pursuant to N.C.G.S. § 7A-30(2) (2003). On 15 November 2002, plaintiff filed a petition for discretionary review as to additional issues, arguing that the Court of Appeals erred by deciding the case on a strict liability (wrongful keeper) theory, rather than the negligence (premises liability) theory that was alleged by plaintiff and found by the jury at trial. On 2 December 2002, defendant Colonial filed a conditional petition for discretionary review as to two additional issues: (1) whether the superior court erred by holding defendant-appellee Colonial liable for the torts of its independent contractor, Management Associates; and (2) whether the superior court erred by holding defendant-appellee liable to plaintiff-appellant when plaintiff was a trespasser at the time and place of his injury. On 27 March 2003, this Court denied plaintiff's petition for discretionary review and dismissed defendant's conditional petition as moot.

On 30 April 2003, plaintiff filed a petition for writ of certiorari as to additional issues, and on 13 May 2003, defendant Colonial again filed a conditional petition for discretionary review of additional issues. In these petitions, both parties made essentially the same arguments they made in their previous petitions for discretionary review. We denied both of these petitions on 21 August 2003.

On 17 November 2003, we heard oral arguments in this case. The only issue properly before this Court at that time was the issue arising from the Court of Appeals dissent: whether the Court of Appeals erred by concluding that defendant Colonial was neither the owner nor the keeper of Olson's dogs. However, after further review, this Court determined that we should address the issues of premises liability and negligence. On 5 February 2004, this Court ex mero motu vacated its 21 August 2003 order denying plaintiff's petition for writ of certiorari as to additional issues and allowed plaintiff's petition for writ of certiorari as to the additional issue of the validity of premises liability principles of negligence. This Court then ordered the parties to brief that issue.

On 13 February 2004, defendant Colonial filed a petition for discretionary review as to the following additional issues: (1) whether the superior court erred by holding defendant Colonial liable for the torts of its independent contractor, Management Associates; (2) whether the superior court erred by holding Colonial liable to plaintiff when plaintiff was a trespasser at the time and place of his injury; and (3) whether the superior court erred in instructing the jury regarding Colonial's duty and Management's status as an independent contractor. On 4 March 2004, we allowed this petition.

The parties then submitted briefs on the issue in plaintiff's petition for writ of certiorari and the three issues in defendant's petition for discretionary review, but did not argue them before this Court. We have decided these additional issues based on the parties' briefs.³

I.

We first address the issue before us based on the Court of Appeals dissent: Whether the Court of Appeals correctly concluded that Colonial was neither an owner nor a keeper of Olson's dogs. The Court of Appeals majority and dissent focused their analysis on whether Colonial was the owner or keeper of Olson's dogs based upon the issue of strict liability as set out in Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297 (1967). In Swain, strict liability was based upon whether: (1) "`the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) [whether] the owner or keeper knew or should have known of the animal's vicious propensity, character, and habits.'" Id. at 51, 152 S.E.2d at 301 (quoting Sellers v. Morris, 233 N.C. 560, 561, 64 S.E.2d 662, 663 (1951)) (alterations in original). However, plaintiff did not allege in his complaint that defendant Colonial was strictly liable. Instead plaintiff alleged defendant was negligent, and in fact the case was tried against Colonial on a negligence theory.

Plaintiff need not show defendant was an owner or a keeper in order to demonstrate a prima facie case of negligence. The fact that we recognize a strict liability cause of action against owners and keepers of vicious animals, Swain, 269 N.C. at 51, 152 S.E.2d at 301, does not preclude a party from alleging negligence (a different cause of action) against a party who may or may not be...