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Agenda - 04-08-2014 - 2
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Agenda - 04-08-2014 - 2
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4/8/2014
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Work Session
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Agenda
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Minutes 04-08-2014
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16 <br /> Trespass& ViaousAnimals <br /> Page 3 <br /> An important corollary of Rofessor Wall and Mr.Tyner's analysis of the meaning of trespass in <br /> applicable law is that the behavior of the bite victim is not immaterial in the analysis of whether there is <br /> a willful trespass. Aperson's gross negligence in evaluating and acting on their perception of either <br /> express or implied consent to enter property should necessarily enter into an evaluation of whether a <br /> willful trespass has occurred. Negligence of this kind is varied and it may involve a variety of property <br /> characteristics including the presence of a dog and its behavior. <br /> With regard to express consent,there maybe a misunderstanding of the terms or scope of the <br /> permission someone has received from a property owner. For instance,a person may enter into a <br /> fenced backyard when they were actually told to come to the front yard to have the children play. <br /> Customary understanding of property characteristics will be most prominent in cases involving the <br /> question of whether someone had the apparent consent of an owner to enter his or her property. One <br /> illustration is a person opening a dosed fence behind to approach a residence. Another illustration is a <br /> person who walks pasta house and through a fence gate toward some distant outbuildings even as they <br /> hear dogs barking in the distance. <br /> Two observations need to be made before dosing this discussion. One is that during Commissioners' <br /> discussion at their meeting on October 4,2013, one suggestion made was that a dog's first bite without <br /> justifiable cause on the owner's property could be addressed with a citation under Unified Ordinance. <br /> In this approach,the citation would serve to notify the owner of the dog of its propensity to bite and the <br /> owner's responsibility to ensure that the dog did not have the opportunity to do so absent ajustifiable <br /> cause. Only the second time the dog bit on the owner's property without some justifiable cause would <br /> the dog be deemed vicious and subject to the conditions and requirements of a vicious animal as <br /> defined in the Unified Ordinance. <br /> The second observation is about the role of local government in assuring public health and safety. <br /> Many dog bites occur on private property but these bites are only subject to action under the North <br /> Carolina's Dangerous Dogs law(67-4.1 through 67-4.4)if a bite results in"broken bones or disfiguring <br /> lacerations or require(s)cosmetic surgery or hospitalization." What this means is that under the statute <br /> it is not possible to place restrictions on the dog(such as being in a secure enclosure on the owner's <br /> property) in an effort to prevent someone else from being bitten by the same dog unless the bite is <br /> severe. Historically,this gap has been filled by local ordinances such as county and town vicious animal <br /> ordinances which can be constructed to cover the significant gap instate law that exists for bites that <br /> occur on the dog owner's property that do not reach the threshold of breaking bones,causing <br /> disfiguring lacerations or requiring hospitalization or cosmetic surgery. <br />
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