An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                  NO. COA14-849
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 6 January 2015


MYRA B. RUTLAND,
     Plaintiff-Appellant,

      v.                                      Guilford County
                                              No. 13 CVS 7526
JAMES SMITH and NANCY SMITH,
     Defendants-Appellees.


      Appeal by Plaintiff from order entered 14 April 2014 by

Judge   V.    Bradford     Long   in   Superior        Court,   Guilford      County.

Heard in the Court of Appeals 3 December 2014.


      Barron & Berry, L.L.P.,               by    Frederick      L.    Berry,      for
      Plaintiff-Appellant.

      Gregory A. Wendling for Defendants-Appellees.


      McGEE, Chief Judge.


      Myra B. Rutland (“Plaintiff”) appeals from an order of the

trial court granting summary judgment in favor of                           James and

Nancy Smith (“Defendants”).            Defendants’ dog, a German Shepherd

sheepdog     mix   (“Lacy”),      allegedly      bit    Plaintiff     on    her   leg,

causing      Plaintiff     serious     injury.         Plaintiff      has    forecast
                                           -2-

insufficient      evidence       to    support   her    claim.      Therefore,    we

affirm.

       Plaintiff visited Defendants’ home on 16 January 2012, in

an   attempt     to    sell   Defendants      supplemental       health    insurance.

Plaintiff parked in Defendants’ driveway, in front of a carport

to which Lacy was chained.                 Plaintiff exited her vehicle, and

reportedly was approached by Lacy.               Plaintiff let Lacy sniff her

hand, and then Plaintiff turned to approach Defendants’ house,

at which point, allegedly, Lacy attacked her.

       During deposition,         Defendants speculated that Lacy could

“be a problem” around strangers and generally advised people who

were not familiar with Lacy to avoid parking in their driveway.

However, Defendants testified that this stemmed from a general

belief    that    dogs    could       be   territorial,    but    Defendants     also

stated that they had never actually seen Lacy act aggressively

toward anyone.         At most, Lacy would bark sometimes if Defendants

were     not   home.          Plaintiff     presented     no     further     evidence

suggesting Lacy was a vicious animal.

       Summary        judgment        is   proper      where     “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 any party is

entitled to a judgment as a matter of law.”                      N.C. Gen. Stat. §
                                   -3-

1A–1, Rule 56(c) (2013).         While summary judgment is normally

disfavored in negligence actions, where the forecast of evidence

shows that a plaintiff cannot establish an essential element of

her claim, summary judgment is appropriate.           Strickland v. Doe,

156 N.C. App. 292, 294, 577 S.E.2d 124, 128 (2003) (citations

omitted).

    Although     the   present   case    is   a   negligence   action,   to

recover for injuries inflicted by a domesticated animal, a

            plaintiff must allege and prove: (1) that
            the    animal   was     dangerous,    vicious,
            mischievous, or ferocious, or one termed in
            law as possessing a vicious propensity; and
            (2) that the owner or keeper knew or should
            have   known   of    the    animal's   vicious
            propensity, character, and habits.         The
            gravamen of the cause of action in this
            event is not negligence, but rather the
            wrongful   keeping   of    the   animal   with
            knowledge of its viciousness; and thus both
            viciousness and scienter are indispensible
            [sic] elements to be averred and proved.

Swain v. Tillett, 269 N.C. 46, 51, 152 S.E.2d 297, 301 (1967)

(citations and internal quotation marks omitted).          Regarding the

element of viciousness, in order to survive summary judgment a

plaintiff must at least      forecast     evidence that “the dog had

demonstrated its vicious inclinations by trying to bite someone

and that the owner or keeper had knowledge of it.”             See Hunt v.

Hunt, 86 N.C. App. 323, 327, 357 S.E.2d 444, 447 (1987) (citing

Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676 (1941)).
                                  -4-

    In the present case, Plaintiff has presented no evidence

that Lacy had bitten, or had ever attempted to bite, anyone

previously.    Although Defendants routinely cautioned people who

did not know Lacy to avoid parking in their driveway, Plaintiff

has presented no evidence that this was motivated by anything

other   than   Defendants’    general     belief    that      dogs   can   be

territorial.     As   such,   Plaintiff    has     forecast    insufficient

evidence to establish that Lacy was “vicious” for the purposes

of her negligence action against Defendants.          Therefore, summary

judgment was proper.

    Affirmed.

    Judges ELMORE and DAVIS concur.

    Report per Rule 30(e).
