A dog bite victim in North Carolina can recover compensation under the limited dog bite statutes and the doctrines of negligence, negligence per se, scienter (the one bite rule), and intentional tort. The dog bite statutes apply only to dogs that (a) are over six months of age and running at large during the night, (b) previously killed or injured people or (c) previously were officially declared to be dangerous or potentially dangerous. North Carolina is a contributory negligence state, making it difficult for some victims to recover compensation.
The owner of a dog in North Carolina will be held strictly liable for canine-inflicted injuries to a human being or to “chattels” (the legal term for “property”) if he intentionally, knowingly, and willfully violates the state’s prohibition against dogs running at large per section 67-12 of North Carolina General Statutes. The prohibition applies only to a dog more than 6 months old, running at large in the night, unaccompanied by the owner or “some member of the owner’s family, or some other person.”
If section 67-12 does not apply, there may be strict liability under section 67-4.4 if the injuries were inflicted by a “dangerous dog” as defined by section 67-4.1. A “dangerous dog” is one that (a) is over six months of age and running at large during the night, (b) previously killed or injured people or (c) previously was officially declared to be dangerous or potentially dangerous.
If the requirements for statutory liability cannot be met, there are other grounds on which a case can be based, described below.
North Carolina permits a dog bite victim to recover compensation on the traditional ground of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person is negligent.
“The elements of negligence are: 1) legal duty; 2) breach of that duty; 3) actual and proximate causation; and 4) injury.” (Mabrey v. Smith, 144 N.C. App. 119, 122, 548 S.E.2d 183, 186.) “Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff’s injuries, and without which the injuries would not have occurred.” (Lord v. Beerman, 191 N.C. App. 290, 294, 664 S.E.2d 331, 334 (2008).)
For example, in Griner v. Smith, 43 N.C. App. 400, 407, 259 S.E.2d 383, 388 (1979), the owners of a Rottweiler which previously had not behaved viciously toward people was nevertheless held liable under the doctrine of negligence because they should have known the “general propensities” of Rottweilers to be territorial, aggressive and unpredictable. The court stated:
“[N]ot all actions seeking recovery for damage caused by a domestic animal need involve the vicious propensity rule….The owner of a domestic animal is chargeable with knowledge of the general propensities of certain animals and he must exercise due care to prevent injury from reasonably anticipated conduct.”
Another example of general negligence is Williams v. Tysinger, 328 N.C. 55, 399 S.E.2d 108 (1991), an important case even though it involved a horse and not a dog. In Williams, the owner of a horse which did not previously act viciously was held liable for negligence after the horse kicked a young child in the head. The court said that liability was justified “not [because of] the wrongful keeping of a vicious animal; rather … encouraging two young children to play with a horse after being warned by the children’s mother that they had no familiarity with horses or any other large animals.” 328 N.C. at p. 60, 399 S.E.2d at p. 111. The court in Hill v. Williams, 144 N.C. App. 45, 547 S.E.2d 472, rev. denied, 354 N.C. 217, 557 S.E.2d 531 (2001), approved the application of the rule in Williams to dog bite cases.
Negligence per se
North Carolina permits dog bite victims to sue on the ground of negligence per se. This doctrine is very important because it frequently is the only available ground for recovery. It applies when the defendant (a dog owner or someone having custody of the dog) violates an animal control law.
In order to prevail on a claim of negligence per se, plaintiff must show, (1) a duty created by a statute or ordinance; (2) that the statute or ordinance was enacted to protect a class of persons which includes the plaintiff; (3) a breach of the statutory duty; (4) that the injury sustained was suffered by an interest which the statute protected; (5) that the injury was of the nature contemplated in the statute; and, (6) that the violation of the statute proximately caused the injury. (Hardin v. York Memorial Park, 730 SE 2d 768, 776, 221 NC App. 317 (2012).)
For example, section 91.07 of the Wake County Code of Ordinances states in relevant part that “[i]t shall be unlawful for any owner to permit an animal to be at large.” The violation of this ordinance constitutes negligence per se.
Scienter (the one-bite rule)
The traditional doctrine that makes a person liable for harm inflicted by a domestic animal is referred to as “scienter” (the Latin word for “knowingly”), “common law strict liability,” and “the one bite rule.” As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer or keeper of a dog if (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog’s previous conduct. If either of those conditions are not met, however, the victim cannot employ this doctrine as a ground for recovery. See The One Bite Rule.
The one bite rule is the foundation of dog bite law. It exists in every state. The majority of American states have supplemented it with statutes that make dog owners responsible for all bites including the first one. These so-called “dog bite statutes” sometimes extend to people other than dog owners and injuries other than dog bites. Furthermore, the majority of states impose liability on dog owners and others under a variety of other legal doctrines, including negligence, premises liability, nuisance, and negligence per se for a violation of an animal control law such as a leash law, a law prohibiting dogs from being at large, or a law prohibiting dogs from trespassing. An emerging ground for liability is the dog owner’s failure to stop a dog attack after it has begun. If the one bite rule or any other doctrine works against a victim, therefore, another might support his claim for compensation. See generally Legal Rights of Dog Bite Victims in the USA.
North Carolina enforces the one bite rule by using the traditional formulation of the rule (see The One Bite Rule) as well as by operation of section 67-4.4 of the North Carolina General Statutes, linked above.
North Carolina negligence laws follow the doctrine of contributory negligence, which bars recovery by the plaintiff if he or she is partially at fault. The majority of other states follow the doctrine of comparative negligence, in which the amount of damages is reduced in proportion to the plaintiff’s degree of fault. As a practical matter, the doctrine of contributory negligence favors insurance companies over dog bite victims.