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

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27 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 trespass may be anywhere in the domain of the law which extends from the region of felonies down to gross negligence, but is never found below the border line of the latter in the region of mere negligence"); Barnes v. Moore, 98 S.E.2d 683, 686 (Va. 1957) ("if the evidence was sufficient to justify the belief that [defendant's] error or mistake was committed in bad faith, or recklessly, or in willful disregard of the rights of others, or induced by his utter failure to do what an ordinary, reasonable, and prudent man would have done, in view of all the surrounding circumstances, then his conduct constituted gross negligence" sufficient to find a willful trespass);Richardson v. Flowers, 11 So. 2d 808, 809 (Miss. 1943) (suggesting willful trespass is equivalent to gross negligence); Tennessee, Alabama & Georgia R. Co. v. Zugar, 18 S.E.2d 758, 762 (Ga.1942) ("A wilful trespass has been characterized as a wanton trespass and as one made in bad faith."); Welty v. Indianapolis & V.R. Co., 4 N.E. 410, 412 (Ind. 1886) (a willful trespass requires "something more than mere negligence"). The preceding cases suggest that, in at least some jurisdictions, a willful trespass requires, at minimum, a grossly negligent action. It should be noted that the phrase "willful trespass"was used in some North Carolina cases in the early Twentieth Century to refer to criminal trespass, but the language of the Unified Ordinance linking "willful trespass" to "other torts," along with the separate provision for criminal acts, suggests that the ordinance contemplates willful trespass as being a civil tort. The Unified Ordinance's exception for dogs causing injury to a person committing a willful trespass arguably requires that the trespasser have a more culpable or blameworthy state of mind, relative to that required for a traditional trespass, with respect to two distinct factors: (1) the act of entry, and (2) the existence of authorization to enter or engage in certain actions after entry. A. State of Mind Regarding the Act of Entry The traditional rule for civil trespass liability is that the tortfeasor need not intend to interfere with the possession of another's property in order to incur liability so long as she intends the act which constitutes the unauthorized entry. By way of example, an actionable trespass occurs were a person intentionally enters onto the land of another under either the mistaken belief that he is entitled to do so, or the mistaken belief that he owns the land. See York Indus. Ctr., Inc. v. Michigan Mut. Liab. Co., 271 N.C. 158, 163 (1967) (so stating). This traditional rule of trespass law has been characterized as imposing "a limited kind if strict liability"upon the intruder. 1 DOBBs at 131. In contrast, it has been recognized that a"willful trespass"requires something more than an entry which is caused by an intentional act because, if it did not, "every trespass would be willful." Wood at 1004. An intruder's entry, in addition to being intentional, may need to constitute wrongful or grossly negligent behavior in order to rise to the level of a willful trespass. The distinction between an intentional entry and a willful entry onto land has been made in North Carolina case law in an attempt to illustrate the traditional rule that an individual may be liable for trespass even when she did not mean to go onto another's land. The Supreme Court explained that"trespass to land requires an intentional entry thereon . . . [i]t does not, however, require that such entry be willful." York Indus. Ctr., Inc., 271 N.C. at 163. The defendants in 5