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

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24 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 II. Similar Provisions in Other States It appears that exceptions in animal control regulations for dogs that attack trespassers are relatively common. At least eight other states have exceptions in state animal control law that specifically exempt dogs that attack or bite individuals who are committing a"willful trespass" from classification as a vicious or dangerous animal. See S.D. Codified Laws § 40-34-15 ("No dog may be declared vicious if an injury or damage is sustained to any person who was committing a willful trespass or other tort"); Cal. Agric. Code § 31626(a) ("No dog may be declared potentially dangerous or vicious if any injury or damage is sustained by a person who, at the time the injury or damage was sustained, was committing a willful trespass or other tort"); Va. Code Ann. § 3.2-6540.1(C.) ("No animal shall be found to be a vicious dog if the threat, injury, or damage was sustained by a person who was . . . (ii) committing, at the time, a willful trespass upon the premises occupied by the animal's owner or custodian"); 3 Pa. Stat. Ann. § 459-507-A(b) ("This article shall not apply if the threat, injury or damage was sustained by a person who, at the time, was committing a willful trespass or other tort"). See also Minn. Stat. Ann. § 347.51; 510 IL,CS 5/15.1(Elinois); Okla. Stat. Ann. tit. 4, § 46. Unfortunately, as is the case in Article 67 of the North Carolina General Statutes, most of the other jurisdictions which specifically identify an exception for attacks on willful trespassers do not explicitly define the behavior which constitutes a"willful trespass." One exception to this general trend is Nebraska's dangerous dog statute which contains an exception for injuries inflicted by a dog upon "an individual who, at the time, was committing a willful trespass as defined in section 20-203, 28-520, or 28-521, [or] was committing any other tort upon the property of the owner of the dog."Neb. Rev. Stat. § 54-617. The cross references in Nebraska's statute reference the statutory tort of invasion of privacy (requiring a trespass which "would be highly offensive to a reasonable person") and the crimes of first and second-degree trespass. This Nebraska scheme is similar to a cross reference to the NC statutes for criminal trespasses that appears to have been at one time included in a draft version of the Unified Ordinance. Given that the animal control regulations of other states tend to be as vague as North Carolina's provision in G.S. 67-4.1 (b)(4) (analogous to the exception in the draft Unified Ordinance), it is helpful to examine the broad concept of trespass in tort law in order to better understand what behavior may constitute a"willful trespass."i III. Trespass Generally & Within the Context of the Ordinance Trespass in civil tort law is an "ancient action" and the term has been used to describe all manner of wrongs ranging from the general to the specific. Fowler v. Valencourt, 334 N.C. 345, 348 (1993). At its most general, "a trespass is sometimes said to include any wrongful invasion i For a case looking to the traditional legal meaning of the term "trespass"in the absence of an explicit definition see State v. Johnson, 628 P.2d 789,790(Or.App. 1981)("The Portland City Code does not define the term `trespasser.' It is a term,however,that has a well defined legal meaning, and it should be given that meaning in construing the ordinance.") 2