Hunnicutt v. Lundberg

379 S.E.2d 710 (1989)

Mary L. HUNNICUTT, Plaintiff, v. Lillian LUNDBERG, Defendant.

No. 8810SC1012.

Court of Appeals of North Carolina.

June 6, 1989.

*711 McNamara, Pipkin & Knott, by Joseph T. Knott, III and Ashmead P. Pipkin, Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by David H. Batten and Kari L. Russwurm, Raleigh, for defendant-appellee.

ARNOLD, Judge.

Plaintiff contends that the trial court improperly entered summary judgment in favor of defendant. We disagree.

The summary judgment rule provides "an efficient method for determining whether a material issue of fact actually exists.... In order to prevail, a movant must establish the absence of any material issue of fact." Southerland v. Kapp, 59 N.C.App. 94, 95, 295 S.E.2d 602 (1982) [citations omitted]. The movant can meet this burden by showing the non-existence of an essential element of the plaintiff's claim. Id. These elements comprise a negligence cause of action: duty, breach of that duty, legal cause (comprised of actual and proximate cause) and injury. Id.; Prosser and Keeton on Torts § 30 (1984).

The test to determine defendant's liability in this case has been stated:

The test of the liability of the owner of the dog is ... whether the owner should know from the dog's past conduct that he is likely, if not restrained, to do an act *712 from which a reasonable person, in the position of the owner, could foresee that an injury to the person or property of another would be likely to result. That is, the liability of the owner depends upon his negligence in failing to confine or restrain the dog. The size, nature and habits of the dog, known to the owner, are all circumstances to be taken into account in determining whether the owner was negligent.

Sink v. Moore, 267 N.C. 344, 350, 148 S.E.2d 265, 270 (1966); see Sanders v. Davis, 25 N.C.App. 186, 212 S.E.2d 554 (1975). In reviewing a motion for summary judgment, all material filed in support of and in opposition to the motion must be considered in a light most favorable to the non-movant. Sanders at 188, 212 S.E.2d at 556.

Applying these rules then, it was defendant's duty, based on her prior experience with her dogs, to restrain her dogs in a way that she would expect to be able to control them on her walk in the neighborhood. Defendant had the two ten pound dogs on individual leashes of average size. There was evidence from both parties that the use of leashes and verbal commands had been sufficient in the past to control the dogs. Plaintiff states in her affidavit that "I had seen her control her dogs before when they interrupted our street side conversations with their barking, and I thought she was going to do so again." Looking at the evidence in the light most favorable to the plaintiff, it is clear that defendant was performing her legal duty at the time plaintiff approached her to talk.

We also do not see any suggestion in the evidence that defendant breached this duty during their short encounter. From plaintiff's deposition we learn:

Q. How long would you say you had talked to her or been with her before you fell? A. Probably a minute or so. It couldn't have been more than two or three minutes at the most.

The encounter was just too short for the defendant to be expected to formulate and enact stricter means of control before plaintiff's fall. Rather, this was "[a]n unavoidable accident ... which was not intended and which, under all the circumstances, could not have been foreseen or prevented by the exercise of [even more] reasonable precautions" than those already exercised by the defendant. Prosser and Keeton § 29 (1984). The order of the trial court is

Affirmed.

GREENE and LEWIS, JJ., concur.