Prevette v. Forsyth County

• Decision Date: 06 July 1993
• Docket Number: No. 9221SC622,9221SC622
• Citation: 110 N.C.App. 754,431 S.E.2d 216
• Parties: Hannah Logan PREVETTE, Administratrix of the Estate of Hoke Lane Prevette, Jr., Deceased, Plaintiff, v. FORSYTH COUNTY; Forsyth County Animal Control Department; Forsyth County Animal Control Shelter; Jerry Canady, as Director of the Forsyth County Animal Control Shelter; Jerry Canady, Individually; and R.M. Swafford, Individually, Defendants.
• Court: North Carolina Court of Appeals

Page 216

431 S.E.2d 216

110 N.C.App. 754

Hannah Logan PREVETTE, Administratrix of the Estate of Hoke

Lane Prevette, Jr., Deceased, Plaintiff, v. FORSYTH COUNTY; Forsyth County Animal Control Department;

Forsyth County Animal Control Shelter; Jerry Canady, as

Director of the Forsyth County Animal Control Shelter;

Jerry Canady, Individually; and R.M. Swafford,

Individually, Defendants.

No. 9221SC622.

Court of Appeals of North Carolina.

July 6, 1993.

White and Crumpler by Dudley A. Witt and Teresa L. Hier, Winston-Salem, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice by Allan R. Gitter and Ellen M. Gregg, Winston-Salem, for defendants-appellees.

WELLS, Judge.

As her sole assignment of error, plaintiff contends that the trial court improperly granted defendants' motion to dismiss for failure to state a claim upon which relief can be granted. In Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986), our Supreme Court stated the standard of review applicable to the case now before us as follows:

On a motion to dismiss for failure to state a claim upon which relief can be granted, N.C.R.Civ.P. 12(b)(6), all allegations of fact are taken as true but conclusions of law are not. See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Dismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim. Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985).

More recently, in Herndon v. Barrett, 101 N.C.App. 636, 400 S.E.2d 767 (1991), this Court reiterated the standard for review of a trial court's 12(b)(6) dismissal.

"A complaint should be dismissed for failure to state a claim where it is apparent that plaintiff ... is entitled to no relief under any statement of facts which could be proven, more specifically, when there is an absence of law to support the claim asserted, a want of facts sufficient to establish a good claim, or some defense which will necessarily defeat the claim." Brawley v. Brawley, 87 N.C.App. 545, 552, 361 S.E.2d 759, 763 (1987), disc. rev. denied, 321 N.C. 471, 364 S.E.2d 918 (1988).

The Herndon Court went on to add:

"Strictly speaking, the concept of negligence is composed of two elements: legal duty and a failure to exercise due care in the performance of that legal duty...." O'Connor v. Corbett Lumber Corp., 84 N.C.App. 178, 181, 352 S.E.2d 267, 270 (1987).

In the case now before us, the plaintiff's allegations may be summarized as follows: During all relevant times complained of, Thomas F. Powell owned and kept two rottweiler dogs. On or about 20 October 1989, Hoke Lane Prevette, Jr. was jogging around Mr. Powell's neighborhood, was attacked by Powell's rottweilers, and suffered injuries from which he ultimately died on 20 October 1989.

During all relevant times, Forsyth County, through its departments, the Forsyth County Animal Control Department (FCACD) and the Forsyth County Animal Control Shelter (FCACS), and their agents, was charged with the responsibility of enforcing all state and county laws relating to the care, custody, and control of animals, including, inter alia, the confinement or leashing of vicious dogs. At the time in question, Jerry Canady was the duly appointed director of the Forsyth County Animal Control Shelter, and R.M. Swafford was an agent and employee of the Forsyth County Animal Control Shelter.

Prior to 20 October 1989, the two rottweilers, owned by Powell, were picked up by the FCACD and/or the FCACS for allegedly attacking or attempting to attack certain individuals in the area of 601 Banner Avenue, in Winston-Salem. On or about 16 August 1989, the rottweilers were again picked up by FCACD and/or FCACS and after making proper notice, the two dogs were placed for sale on or about 22 August 1989. On that same day, at 5:25 p.m., Powell redeemed the two dogs. Prior to 22 August 1989, agents of FCACD/FCACS had repeatedly picked up Powell's rottweilers and knew said dogs to be vicious ferocious, and accustomed to threatening and/or attacking individuals around Powell's neighborhood. With knowledge of the rottweilers' dangerous tendencies, R.M. Swafford or some unknown animal control officer, allowed Powell to redeem his dogs. Such redemption was in violation of pertinent sections of the Forsyth County Code and constituted negligence per se. During all relevant times, Forsyth County's agents and/or employees were acting within the scope of their agency and employment.

Defendants Forsyth County, FCACD and FCACS were negligent because they failed to adequately train and supervise their employees/agents in that its agents failed to follow provisions of the Forsyth County Code when they allowed Mr. Powell to redeem his dogs, its agents failed to notify the Forsyth County Health Director of the dangerous propensity of Powell's dogs, and its agents failed to determine that said rottweilers were "potentially dangerous dogs" pursuant to N.C.Gen.Stat. § 67-4.1.

As a direct and proximate result of the defendants' negligence, Powell's rottweilers were in the neighborhood of 601...