Agenda - 04-08-2014 - 2 - Laserfiche WebLink

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16 Trespass& ViaousAnimals Page 3 An important corollary of Rofessor Wall and Mr.Tyner's analysis of the meaning of trespass in applicable law is that the behavior of the bite victim is not immaterial in the analysis of whether there is a willful trespass. Aperson's gross negligence in evaluating and acting on their perception of either express or implied consent to enter property should necessarily enter into an evaluation of whether a willful trespass has occurred. Negligence of this kind is varied and it may involve a variety of property characteristics including the presence of a dog and its behavior. With regard to express consent,there maybe a misunderstanding of the terms or scope of the permission someone has received from a property owner. For instance,a person may enter into a fenced backyard when they were actually told to come to the front yard to have the children play. Customary understanding of property characteristics will be most prominent in cases involving the question of whether someone had the apparent consent of an owner to enter his or her property. One illustration is a person opening a dosed fence behind to approach a residence. Another illustration is a person who walks pasta house and through a fence gate toward some distant outbuildings even as they hear dogs barking in the distance. Two observations need to be made before dosing this discussion. One is that during Commissioners' discussion at their meeting on October 4,2013, one suggestion made was that a dog's first bite without justifiable cause on the owner's property could be addressed with a citation under Unified Ordinance. In this approach,the citation would serve to notify the owner of the dog of its propensity to bite and the owner's responsibility to ensure that the dog did not have the opportunity to do so absent ajustifiable cause. Only the second time the dog bit on the owner's property without some justifiable cause would the dog be deemed vicious and subject to the conditions and requirements of a vicious animal as defined in the Unified Ordinance. The second observation is about the role of local government in assuring public health and safety. Many dog bites occur on private property but these bites are only subject to action under the North Carolina's Dangerous Dogs law(67-4.1 through 67-4.4)if a bite results in"broken bones or disfiguring lacerations or require(s)cosmetic surgery or hospitalization." What this means is that under the statute it is not possible to place restrictions on the dog(such as being in a secure enclosure on the owner's property) in an effort to prevent someone else from being bitten by the same dog unless the bite is severe. Historically,this gap has been filled by local ordinances such as county and town vicious animal ordinances which can be constructed to cover the significant gap instate law that exists for bites that occur on the dog owner's property that do not reach the threshold of breaking bones,causing disfiguring lacerations or requiring hospitalization or cosmetic surgery.