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

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29 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 a case-by-case basis. In the analysis, "[t]he child's discretion, maturity, knowledge, and experience interact in rebutting the presumption." In re T.S., 133 N.C. App. 272, 277 (1999). The special contributory negligence rules provide at least two guiding principles which may be useful to a person tasked with making a determination about whether the willful trespass exception applies to a given dog bite case. First, the rules recognize that, as a general matter, the capacity of children to appreciate and avoid negligent behavior develops over time and is distributed along a spectrum. A very young child may not be capable of recognizing and understanding certain boundaries whether they be between properties or behaviors. In contrast, an older child may have accumulated sufficient experience in the world to conform her actions to societal norms. The second useful principle, illustrated by the rebuttable presumptions for children over seven, is that individual children have varying capacities that must be accounted for on a case- by-case basis by analyzing characteristics of both the particular child and the circumstance. A very mature child, for example, may understand that societal custom suggests that she should not wander onto her neighbor's property without consent. Likewise, a child who has been specifically warned against going onto a neighbor's property, or who has been warned of the presence of a territorial dog may be more culpable than an ordinary child when those warnings are disregarded. As the preceding examples suggest, each case where a dog bites a child will present unique facts, but borrowing notions from North Carolina's contributory negligence law may provide a decision maker with flexible parameters within which to evaluate a given situation. B. State of Mind Regarding Authorization to Enter The previous discussion of state of mind regarding the act of entry is perhaps most applicable to situations where the nature of property makes it difficult for a person to discern whether she has entered upon the property of another. Another common situation that arises in trespass law is when a person is on property which she knows belongs to another, but acts under some claim of privilege or permission to be in the place. Authorization to enter onto land may be obtained by either express or implied consent. Holcomb v. Colonial Associates, L.L.C., 358 N.C. 501, 510 (2004). Implied consent may arise where societal custom grants an individual the privilege to enter property, or where an owner, upon becoming aware of an entry, makes no objection. Id. Express consent, on the other hand, exists where an owner makes an affirmative manifestation to another authorizing entry onto the owner's property. (i) Implied Consent In Holcombe, a premises liability case, the defendant property management corporation contended that it was shielded from liability for plaintiff s dog-related injuries due to the fact that 7