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

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31 Wall—"Trespass"in Animal Control Ordinance 2-5-2014 door,"6 she had the implied consent of the dog owner to do so and could not be considered a trespasser. In Messa v. Sullivan, 209 N.E.2d 872 (Ill. App. Ct. 1965), the court found implied consent to enter certain areas of a building because, due to the appearance of the building, "people like the plaintiff could only surmise that the entire building was devoted to business purposes and that it was intended that they should come there on business." Id. at 875. As it turned out, certain areas of the building were used for residential purposes and upon wandering into such an area,plaintiff was attacked by the defendant's dog. Despite the presence of signs warning about the dog, the court found that the plaintiff was lawfully on the defendant's premises because of the nature of the building. In Bramble v. Thompson, 287 A.2d 265 (Md. 1972), a premises liability case, the plaintiffs docked their boat at and disembarked onto the defendants' pier whereupon they "were attacked and injured by the [defendants'] dog which was known by its owners to have vicious propensities." Id. at 267. The court rejected the plaintiffs' contention that, despite established premises liability law whereby property owners owe a minimal duty of care to trespassers, the defendants were "nonetheless liable for the attack . . . because the trespass was inadvertent, not willful." Id. While the plaintiff's claim in Bramble was unsuccessful as recovery was precluded under the applicable law even if plaintiffs were inadvertent trespassers, the distinction that the plaintiffs attempted to draw between an inadvertent and willful trespass is illustrative, and similar to that recognized by the court in York. Garrard, Jones, Holcombe, VonCannon,Messa, and Bramble are all cases where implied consent was analyzed by reference to general societal custom.7 Consent may also be implied, however, by specific behavior of a property holder. This particular type of implied consent is sometimes referred to as apparent consent. See Rawls &Associates v. Hurst, 144 N.C. App. 286, 292 (2001) ("There does not have to be an invitation to enter the land,it is sufficient that the possessor's conduct indicates that he consents to the entry."). In Rawles, the court found apparent consent where a property owner knew, due in part to the fact that he attended a groundbreaking ceremony, that various construction items including a mobile office had been placed on his property. The plaintiff failed, however, to make any objection regarding the trespass for several months. Consequently, the court found that he had exhibited apparent consent to the intrusion. Id. at 292-93. While the apparent consent found by the court in Rawles was based the land occupier's inaction in the face of knowledge of a trespass, apparent consent may, of course, also be found 6 The court dismissed the presence of a"`cartoon type' sign depicting a dog's head with teeth bared saying, `Trespassers will be eaten"'due to the fact that such a sign could be interpreted as a joke. It is also important to note here that in all of the cases discussed in this section except Bramble,it was determined that the individual alleged to be a trespasser was in fact not a trespasser whatsoever,much less a "willful trespasser." 9