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

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28 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 York bulldozed trees and shrubs, a behavior that they would certainly have known to be prohibited on land belonging to another individual absent authorization. The defendants, however, were under the mistaken belief that they were on their own land. Though the court found that a trespass occurred, by distinguishing a willful entry from an intentional entry, York may demonstrate that a willful trespass requires knowledge that the land entered belongs to another. See also Payne v. Consolidation Coal Co., 607 F. Supp. 378, 382 (W.D. Va. 1985) ("If an act of trespass is done accidentally, by inadvertence or by mistake not induced by gross negligence, it is not willful.") (citing Wood, 92 S.E. at 1003). Compare York 271 N.C. 158, with Weitz v. Green, 230 P.3d 743, 756 (Idaho 2010) (where it was "apparent that under the facts of this case the [appellants] were not committing an innocent mistake in re-entering the property, cutting down vegetation, and erecting a fence," such action constituted a willful trespass). The cases above suggest that a willful trespass occurs where, in addition to intending the act which constitutes entry, an intruder knows or reasonably should know that the act of entry is wrongful or grossly negligent.5 (i) The Special Case of Children North Carolina law contains special rules regarding the capacity of children for contributory negligence. Contributory negligence is a tort law concept that essentially limits the liability of an individual who has negligently injured another when the injured person contributed to the injury through their own negligent behavior. For example, a motorist who strikes and injures a person crossing the street may argue that the injured person's manner of crossing was reckless, and as a result the injured person's contributory negligence limits the motorist's liability. See Coley v. Phillips, 224 N.C. 618, 620 (1944). While perhaps not directly applicable to the willful trespasser exception in the Unified Ordinance, the law's willingness to account for the unique nature of children in the contributory negligence context may be helpful in a willful trespass analysis with respect to child trespassers because of the arguable requirement that a state of mind evidencing gross negligence accompany an intentional entry. In North Carolina, children under seven years of age are incapable of contributory negligence as a matter of law. State v. Harrington, 260 N.C. 663, 666 (1963). Children between ages seven and fourteen are presumed to be incapable of contributory negligence, but the presumption is rebuttable "by evidence showing capacity [for negligence]." Id. at 648. For children over the age of fourteen there is a rebuttable presumption that the child has the same capacity for contributory negligence as an adult. Hoots v. Beeson, 272 N.C. 644, 647 (1968). The question of whether the presumptions of negligent capacity or incapacity can be rebutted is approached on 5 Connecticut's statute imposing liability on dog owners for injury caused by their dogs to persons or property contains an exception for liability where the person injured was committing a"trespass or other tort." Conn. Gen. Stat. § 22-357. The courts of that state have interpreted the provision as requiring"more than a mere entry[because]the plain intent of the statute is to bar recovery where the plaintiff was committing or intending to commit some injurious act." See Verrilli v. Damilowski,100 A.2d 462,464(Conn. 1953). 6