                                  NO. COA13-431

                     NORTH CAROLINA COURT OF APPEALS

                          Filed:    18 February 2014


JOSHUA STEPHENS,
     Plaintiff

     v.                                    New Hanover County
                                           No. 11 CVS 356
SHELBY COVINGTON, JAMES HEWETT,
and GLENDA HEWETT,
     Defendants


     Appeal by plaintiff from order entered 3 October 2012 by Judge

Gary E. Trawick in New Hanover County Superior Court.             Heard in

the Court of Appeals 9 October 2013.


     Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, and The
     Kirby Law Firm, by Albert D. Kirby, Jr., for plaintiff-
     appellant.

     Culbreth Law Firm, LLP, by Stephen E. Culbreth, for defendant-
     appellee.


     CALABRIA, Judge.


     Joshua Stephens (“plaintiff”) appeals from an order granting

summary   judgment   in   favor    of   Shelby   Covington   (“defendant”).

Defendants James and Glenda Hewett (collectively, “the Hewetts”)

are not parties to this appeal.            Plaintiff only appeals the 3

October 2012 order granting summary judgment in defendant’s favor.

We affirm.
                                       -2-
                               I. Background

       In the early 1990s, the Hewetts leased a home located on

Louisiana Avenue in Wilmington, North Carolina (“the property”)

from    defendant’s     husband,    John     Covington   (“Mr.   Covington”)

(collectively with defendant, “the Covingtons”).              Mr. Covington

knew that the Hewetts owned a Rottweiler (“Rocky”), and since the

houses in the neighborhood were close together, Mr. Covington and

the Hewetts contacted Animal Control regarding safety measures for

keeping a dog.      As a precaution and at the direction of Animal

Control, the Hewetts created a fenced area in the backyard with

two gates and posted “Beware of Dog” and “No Trespassing” signs on

each gate.

       Shortly after the Hewetts leased the property, but prior to

purchasing it, Rocky grew so large that the Hewetts began keeping

Rocky exclusively in the fenced area.          At the time the incident in

the    instant   case   occurred,      plaintiff   was   eight   years    old.

Plaintiff    visited    his   friend    Jeremy     Hewett   (“Jeremy”),    the

Hewetts’ nine-year-old son.         During plaintiff’s visit, plaintiff

followed Jeremy when he entered the fenced area to refill Rocky’s

water dish.      While the boys stood in the fenced area, Rocky bit

plaintiff’s lower leg.        Jeremy hit Rocky with a stick to make him

release plaintiff.       When Jeremy was unsuccessful, he ran to get
                               -3-
his mother.   Rocky briefly released plaintiff, but then bit him

again, catching plaintiff’s shoulder in his teeth.       Eventually

Glenda Hewett managed to release plaintiff from Rocky, and a

neighbor pulled plaintiff over the fence, safely away from Rocky.

Plaintiff sustained “extremely severe” injuries to both his leg

and shoulder.    Animal Control officers investigated and took

statements from witnesses.    After Rocky remained at the animal

shelter for a ten day mandatory quarantine period, James Hewett

decided to have him euthanized.

     In October 2008, after plaintiff reached majority, he filed

a complaint against the Covingtons and the Hewetts. However, since

Mr. Covington died in 1998, the complaint was voluntarily dismissed

without prejudice.   Plaintiff refiled the complaint against the

Hewetts and defendant on 27 January 2011. Plaintiff alleged, inter

alia, negligence against the Hewetts and defendant. On 21 November

2012, the trial court entered a final judgment of $500,000 against

the Hewetts as compensatory damages.   On 12 March 2012, defendant

filed a motion for summary judgment.      After a hearing in New

Hanover County Superior Court, the trial court entered an order on

3 October 2012 granting defendant’s motion.    Plaintiff appeals the

order granting summary judgment in defendant’s favor.

                      II. Standard of Review
                                    -4-
     “Our standard of review of an appeal from summary judgment is

de novo; such judgment is appropriate only when the record shows

that ‘there is no genuine issue as to any material fact and that

any party is entitled to a judgment as a matter of law.’”            In re

Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)

(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385

(2007)).   “When considering a motion for summary judgment, the

trial judge must view the presented evidence in a light most

favorable to the nonmoving party.”         Id. (citation omitted).

   III. Landlord’s Liability to Third Parties for Injuries by

                            Tenant-Owned Dogs

     Plaintiff     argues   the    trial    court   erred     by   granting

defendant’s motion for summary judgment because there was a genuine

issue of material fact as to whether defendant had control over

the dangerous animal which attacked plaintiff.         We disagree.

     Plaintiff’s    argument      relies   primarily   upon    Holcomb   v.

Colonial Assocs., L.L.C., in which our Supreme Court considered

“whether a landlord can be held liable for negligence when his

tenant's dogs injure a third party.” 358 N.C. 501, 503, 597 S.E.2d

710, 712 (2004).    In Holcomb, a contractor sustained injuries when

a tenant’s Rottweiler dog “lunged” at him, causing him to fall to

the ground.   Id. at 504, 597 S.E.2d at 713.           The landlord had
                                 -5-
allowed the tenant to keep two Rottweiler dogs which were permitted

to run freely on the property despite the landlord’s awareness of

two prior instances of aggression on the part of the dogs, one of

which resulted in a bite. Id. at 504, 597 S.E.2d at 712-13.       The

landlord continued to allow the dogs despite a written lease

agreement which required the tenant to promptly remove any pet the

landlord deemed to be a nuisance or undesirable.     Id. at 503, 597

S.E.2d at 712.

     Under a premises liability theory, the Holcomb Court held

that the landlord could be held liable because the “lease provision

granted [landlord] sufficient control to remove the danger posed by

[tenant]'s dogs.” Id. at 508-09, 597 S.E.2d at 715 (emphasis

added).    Plaintiff in the instant case contends that there was a

genuine issue of material fact as to whether defendant possessed

similar control over Rocky at the time he was attacked.

     However, as all of the cases relied upon by the Holcomb Court

make clear, it is not mere generalized control of leased property

that establishes landlord liability for a dog attack, but rather

specific control of a known dangerous animal. See Batra v. Clark,

110 S.W.3d 126, 130 (Tex.App.-Houston 1st Dist. 2003) (“[I]f a

landlord    has   actual   knowledge   of   an   animal’s   dangerous

propensities and presence on the leased property, and has the
                                   -6-
ability to control the premises, he owes a duty of ordinary care

to third parties who are injured by this animal.”); Uccello v.

Laudenslayer, 118 Cal. Rptr. 741 (1975) (landlord renewed tenants’

lease with knowledge that tenants’ dog previously attacked two

people); Shields v. Wagman, 714 A.2d 881 (Md. 1998) (leasing

company knew dog had vicious tendencies and had control over dog’s

presence on the property); McCullough v. Bozarth, 442 N.W.2d 201,

208 (Neb. 1989) (landlord only liable for injuries caused by

tenant’s dog when he has “actual knowledge of the dangerous

propensities of the dog and . . . nevertheless leased the premises

to the dog’s owner or . . . had the power to control the harboring

of a dog by the tenant and neglected to exercise that power.”).

The Holcomb Court was able to presume the dog which attacked the

contractor in that case was dangerous, because the undisputed

evidence before it was that the landlord had knowledge of the dogs’

previous attacks and dangerous propensities. Id. at 504, 597 S.E.2d

at 712-13.     Nonetheless, it was still clear from that decision

that it was not merely the landlord’s control of the property, but

particularly the landlord’s “sufficient control to remove the

danger posed” which resulted in the landlord’s liability.           Id. at

508, 597 S.E.2d at 715 (emphasis added). Thus, pursuant to Holcomb

and   the   cases   cited   therein,   a   plaintiff   must   specifically
                                     -7-
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.

      In the instant case, there is no evidence that defendant or

her husband knew or had reason to know that Rocky was dangerous.

While Mr. Covington requested that James Hewett contact Animal

Control   prior   to   Rocky   occupying   the     property,    deposition

testimony indicates that the purpose behind this call was to obtain

advice on erecting a fence to confine the dog to the yard in

accordance with local ordinances, rather than because the dog had

displayed any aggression. The record also indicates that there

were no reported incidents of aggression, and no one had complained

about Rocky to Animal Control or to the Covingtons prior to

plaintiff’s visit on 25 January 1996.      During the investigation of

the   incident,   Animal   Control   officers    did   not   interview   the

Covingtons.   Animal Control officer Chloe Rivenbark testified at

her deposition in the matter that “there was really no need to

talk to [the Covingtons].      [Animal Control officers] were dealing

mainly with the children and the families that were involved.”

Finally, defendant specifically testified in her deposition that

“the dog didn’t have a bad name of biting anybody or anything that
                                        -8-
I ever heard tell of [sic],” and that Mr. Covington “would have

not allowed [sic] . . . anything there that was dangerous[.]”

Thus, unlike the landlord in Holcomb, defendant did not have

knowledge of a dangerous dog on the property.

       Nonetheless, plaintiff contends that defendant did not need

to have actual knowledge of Rocky’s dangerous propensities because

this Court has previously held that dog owners in a negligence

action   were   “chargeable     with     the    knowledge    of   the   general

propensities of the Rottweiler animal.” Hill v. Williams, 144 N.C.

App. 45, 55, 547 S.E.2d 472, 478 (2001) (citation omitted).                  In

Hill, a local veterinarian testified that the Rottweiler breed was

“aggressive and temperamental, suspicious of strangers, protective

of their space, and unpredictable.”            Id. at 48, 547 S.E.2d at 474.

The defendants presented no evidence to refute the plaintiffs’

evidence of the breed’s aggressive tendencies, and as a result,

they   were   “chargeable   .   .   .    with    knowledge   of   the   general

propensities of a Rottweiler dog as reflected in plaintiffs’

evidence[.]”    Id. at 55, 547 S.E.2d at 478 (emphasis added).

       In the instant case, plaintiff did not present any evidence

demonstrating that the Rottweiler breed is generally dangerous.

The    only   evidence   regarding        the    general     propensities   of

Rottweilers was the deposition testimony of Animal Control Officer
                                 -9-
Ron Currie (“Officer Currie”).         Officer Currie testified that

socializing individual dogs is more indicative of an animal’s

behavior than breed.    He also testified that Rottweilers are not

necessarily aggressive by their very nature.          Thus, the evidence

presented regarding the propensities of a Rottweiler dog, in the

instant case, does not support a finding that Rottweilers are

generally dangerous.    Accordingly, Hill’s statement regarding the

dangerousness of Rottweilers, which was specific to the evidence

presented in that case, is not applicable to the instant case.

     Ultimately, there is nothing in the record to suggest that

defendant knew a dangerous dog was on the property.            Rocky had no

prior history of attacks, and neither the Covingtons nor Animal

Control were aware of any complaints regarding the dog’s aggression

or viciousness.    Defendant could not have known that Rocky was

dangerous, as there was no evidence prior to 25 January 1996 that

the dog exhibited vicious tendencies.

                            IV. Conclusion

     In the light most favorable to plaintiff, the evidence fails

to show that defendant knew that Rocky had dangerous propensities

prior to his attack on plaintiff.       Since plaintiff has failed to

establish that Rocky was a danger, he has failed to establish that

defendant   possessed   “sufficient    control   to   remove    the   danger
                                   -10-
posed”   under   Holcomb.   358   N.C.    at   508,   597   S.E.2d   at   716.

Plaintiff’s assumption that defendant had knowledge of Rocky’s

dangerous propensities based upon breed is misplaced, as the record

indicates that the Rottweiler breed is not inherently aggressive.

As such, there is no genuine issue of material fact, and the trial

court correctly granted defendant’s motion for summary judgment.

We affirm the order of the trial court.

     Affirmed.

     Judges ELMORE and STEPHENS concur.
