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

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30 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 plaintiff was a trespasser on defendant's property at the time of being injured. Id. The court explained that"[w]hether a person has implied permission to enter another's land must be evaluated on the basis of the reasonableness of the visitor's entry, with due regard given `to customs prevailing in the community."' Id. at 510 (citation omitted). At trial the jury found that plaintiff was not a trespasser at the time at which he suffered injuries while fleeing from aggressive dogs on defendant's property. Evidence showed that defendant "placed a `For Sale' sign on its property and allowed buyers and their agents to inspect the property . . . [and] [p]aaintiff, an employee of a prospective buyer, entered the property for the sole purpose of inspecting it for a potential purchaser." The court found that this evidence supported the jury's finding that plaintiff was not a trespasser at the time of his injury despite the fact that he had not been given express permission to enter defendant's property. The court reasoned that the plaintiff was a lawful visitor by virtue of an implied consent customarily recognized in society to enter and inspect property which is publicly advertised for sale. Implied consent to enter property based on societal custom was also found in Smith v. VonCannon, 283 N.C. 656, 661 (1973). In Smith, the court found that the defendant cab driver was not a trespasser at plaintiff's house when he drove his cab into the driveway in the process of dropping off a passenger who claimed to live at the residence. Upon entering the driveway, the cab driver was attacked by his passenger, who had lied about living at the house, and the taxi rolled into plaintiffs' house causing damage. The court reasoned that societal custom is such that "the construction of a driveway or a walkway leading to the entrance of a residence may, in the absence of notice to the contrary, be reasonably construed, not only by acquaintances of the landowner but also by strangers, as an expression of the landowner's consent to their entry thereon for the purpose of approaching and entering the house on any lawful mission." Id. at 662. Under this reasoning, the court found that the plaintiffs could not recover for damages under a trespass theory. Implied consent to approach a home's front door in an effort to interact with the occupants is a commonly recognized societal custom. In Garrard v. McComas, 450 N.E.2d 730 (Ohio Ct. App. 1982), the court found that there was evidence of implied consent for the plaintiff to approach the defendant's home, and that the lower court erred by determining that the plaintiff was a trespasser as a matter of law at the time that she was injured while being chased by defendant's dogs. The court explained: It is probably a matter of judicial notice in this community that a person has implied consent, absent an express warning contrary, to approach a residence to ask for directions or to find out if she is at her friend's home. The alternative of remaining at the curb honking or hollering is not attractive. 450 N.E.2d at 733. Similarly, In Jones v. Manhart, 585 P.2d 1250, 1253 (Ariz. Ct. App. 1978), the plaintiff was knocked down and bitten by the defendant's dog while conducting a door-to-door commercial survey. The dog owner argued that he was not liable for the plaintiff's injuries due to the fact that plaintiff was a trespasser at the time she was injured. The court found that where "[t]here was nothing putting appellee on notice that she could not come up the walk and knock on the 8