Curlee v. Johnson ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-701
Filed: 7 April 2020
Johnston County, No. 18 CVS 718
RICKY CURLEE, a minor by and through his Guardian ad litem KARINA
BECERRA, individually, Plaintiff,
v.
JOHN C. JOHNSON, III, STACEY TALADO and RAYMOND CRAVEN, Defendants.
Appeal by plaintiffs from order entered 10 April 2019 by Judge Stephan R.
Futrell in Johnston County Superior Court. Heard in the Court of Appeals 5
February 2020.
Law Office of Michael D. Maurer, P.A., by Michael D. Maurer, and Burton Law
Firm, PLLC, by Jason M. Burton, for plaintiff-appellants.
Simpson Law, PLLC, by George Simpson, for defendant-appellee John C.
Johnson.
TYSON, Judge.
Ricky Curlee and his mother, Karina Becerra, (“Plaintiffs”) appeal from an
order entered granting summary judgment in favor of John C. Johnson, III. We
affirm.
I. Background
In 2000, Johnson leased a single-family residential property located at 132
Gower Circle (“the Property”) in Garner to Raymond Craven and Stacie Talado.
CURLEE V. JOHNSON
Opinion of the Court
Following the expiration of the initial one-year lease term, Craven and Talado
remained Johnson’s tenants on a month-to-month basis. At the time of trial, Craven
and Talado continued to maintain their tenancy at the Property with their minor
children. Johnson collects the rental payment at the end of the driveway at the
Property or at the Wal-Mart store where Talado acquires cashier’s checks to pay the
rent.
A. Johnny
Craven and Talado owned a dog they had named “Johnny.” Johnny was given
to them as a puppy by a friend. Craven believed Johnny’s sire was a black lab and
his dam was “like a collie-looking kind of dog.”
B. 13 October 2014 Incident
Talado and Craven’s children were playing with a neighbor’s minor child, P.K.
who is wholly unrelated to Plaintiffs, on 13 October 2014, when an incident occurred.
P.K.’s mother had told her son not to play rough with Johnny, but she continued to
allow P.K. and his sister to go over to and visit Craven and Talado’s home with
Johnny being present.
Talado described the incident: “[P.K.] was just playing with the dog, kind of
wrestling with him, and [Johnny] nicked the top of his head.” The “nick” occurred
when P.K raised his head up while wrestling with Johnny. Talado described the
“nick” as “about the size of my pinkie nail.”
-2-
CURLEE V. JOHNSON
Opinion of the Court
Chad Massengill, Johnston County’s Animal Services (“JCAS”) Director,
affirmed the hospital did not document the incident in a report and the “nick” was
minor. When investigating the October 2014 incident, Director Massengill classified
Johnny’s breed as a “Retriever, Labrador/Terrier, American Pit Bull.” Director
Massengill based this classification upon his visual identification.
Johnny was quarantined for ten days following the 13 October 2014 incident.
JCAS determined Johnny did not satisfy the statutory definition of either a
dangerous dog or even a potentially dangerous dog. No preventative measures of the
Johnston County Ordinances relating to keeping animals were required of Talado
and Craven. Johnny was returned to Talado and Craven following the expiration of
the ten-day quarantine.
Director Massengill advised Talado and Craven of voluntary steps they could
take to minimize the risks of keeping Johnny, including placing “Beware of Dog” signs
on the property and keeping Johnny on a leash anytime children were around.
Nothing in the record shows JCAS notified Johnson of this 2014 incident, as the
owner of the property.
C. 17 March 2015 Incident
Over six months later, seven-year-old Curlee visited the Property to play with
Craven and Talado’s children. Curlee lived on Gower Circle with his parents, Becerra
-3-
CURLEE V. JOHNSON
Opinion of the Court
and Ricky Curlee, Sr. During his visit, Talado and Craven had restrained Johnny
with a leash on the Property.
Curlee walked within the radius of the leash restraining Johnny while walking
home. While inside the radius, Curlee pointed a toy gun at Johnny’s head. Johnny
bit Curlee on his cheek and tore the tissue off. Plaintiff’s complaint alleges Curlee
suffered severe and permanent facial disfigurement and psychological injuries as a
result of the incident. JCAS responded to the incident, took possession of Johnny,
and followed Craven and Talado’s instructions to euthanize the dog.
D. Procedural History
Plaintiffs initially sued Johnson only, and alleged negligence and strict liability
on 5 July 2016. Following discovery, Johnson filed a Rule 56 motion for summary
judgment under North Carolina Rules of Civil Procedure. Before this motion was
heard, Plaintiffs voluntarily dismissed their complaint.
Ten days before the third anniversary of the incident, Plaintiffs re-filed their
claims against Johnson and added Craven and Talado as co-defendants on 6 March
2018. Craven and Talado proceeded pro se and did not file answers to the complaint.
Plaintiffs moved for and were granted an entry of default on 17 July 2018 solely
against Craven and Talado.
-4-
CURLEE V. JOHNSON
Opinion of the Court
Johnson denied liability, timely filed, and served his answer. Following
discovery, Johnson filed his motion for summary judgment, which was granted by the
trial court. Plaintiffs timely filed a notice of appeal.
II. Jurisdiction
Plaintiffs concede their appeal is interlocutory, but assert without immediate
appeal their substantial rights will be impacted. See N.C. Gen. Stat. § 7A-27(b)(3)(a)
(2019). “Entry of judgment for fewer than all the defendants is not a final judgment
and may not be appealed in the absence of certification pursuant to Rule 54(b) unless
the entry of summary judgment affects a substantial right.” Camp v. Leonard, 133
N.C. App. 554, 557, 515 S.E.2d 909, 912 (1999) (citations omitted).
Our Supreme Court has held that a grant of summary
judgment as to fewer than all of the defendants affects a
substantial right when there is the possibility of
inconsistent verdicts, stating that it is the plaintiff's right
to have one jury decide whether the conduct of one, some,
all or none of the defendants caused his injuries.
Id. (citations and internal quotation marks omitted).
This Court has held a substantial right is affected when “(1) the same factual
issues would be present in both trials and (2) the possibility of inconsistent verdicts
on those issues exists.” N.C. Dep’t of Transportation v. Page, 119 N.C. App. 730, 736,
460 S.E.2d 332, 335 (1995) (citations omitted). Here, the same factual issues apply
to all claims against the property owner and the tenants. Two trials may bring about
inconsistent verdicts relating to Plaintiff’s damages. We conclude Plaintiffs assert a
-5-
CURLEE V. JOHNSON
Opinion of the Court
substantial right to have the liability of all defendants be determined in one
proceeding. Id.
This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)(3)(a)
(2019). We address the merits of Plaintiff’s interlocutory appeal.
III. Issue
Plaintiffs argue the trial court erred in granting summary judgment for
Johnson.
IV. Summary Judgment
A. Standard of Review
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that [a] party is entitled to
judgment as a matter of law.” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247,
249 (2003) (citation and internal quotation marks omitted); see N.C. Gen. Stat. § 1A-
1, Rule 56(c) (2019).
On Defendant’s motion for summary judgment in a negligence action:
A defendant may show entitlement to summary judgment
by (1) proving that an essential element of the plaintiff’s
case is non-existent, or (2) showing through discovery that
the plaintiff cannot produce evidence to support an
essential element of his or her claim, or (3) showing that
the plaintiff cannot surmount an affirmative defense.
Summary judgment is not appropriate where matters of
credibility and determining the weight of the evidence
-6-
CURLEE V. JOHNSON
Opinion of the Court
exist.
Once the party seeking summary judgment makes the
required showing, the burden shifts to the nonmoving party
to produce a forecast of evidence demonstrating specific
facts, as opposed to allegations, showing that he can at least
establish a prima facie case at trial.
Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735
(2003) (citations and quotation marks omitted), aff’d per curiam, 358 N.C. 131, 591
S.E.2d 521 (2004) (emphasis supplied).
B. Analysis
This Court recently stated: “Summary judgment is seldom appropriate in a
negligence action. A trial court should only grant such a motion where the plaintiff’s
forecast of evidence fails to support an essential element of the claim.” Hamby v.
Thurman Timber Company, LLC, __ N.C. App. __, __, 818 S.E.2d 318, 323 (2018)
(citation omitted). However, this “forecast of evidence” must still demonstrate
“specific facts, as opposed to allegations, showing [Plaintiff] can at least establish a
prima facie case at trial.” Id.; Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735.
In order to hold a landlord liable for injuries caused by a tenant’s dog to a
visitor, “a plaintiff must specifically establish both (1) that the landlord had
knowledge that a tenant’s dog posed a danger; and (2) that the landlord had control
over the dangerous dog’s presence on the property in order to be held liable for the
-7-
CURLEE V. JOHNSON
Opinion of the Court
dog attacking a third party.” Stephens v. Covington, 232 N.C. App. 497, 500, 754
S.E.2d 253, 255 (2014) (citations omitted).
The crux of this case is whether Johnson had prior knowledge Johnny posed a
danger. Specifically, within this context, “posed a danger” is not a generalized or
amorphous standard, but ties directly back to our common-law standard for liability
in dog-attack cases: “that the landlord had knowledge of the dogs’ previous attacks
and dangerous propensities.” Id.
This standard is consistent with the common-law standard applicable to the
owner or keeper of the animal requiring prior knowledge of the animal’s vicious
propensity as an essential element in dog-bite cases to establish liability. “[T]he
gravamen of the cause of action is not negligence, but rather the wrongful keeping of
the animal with knowledge of its viciousness.” Holcomb v. Colonial Assoc., L.L.C., 358
N.C. 501, 511, 597 S.E.2d 710, 717 (2004) (alterations, citations, and quotation marks
omitted).
Plaintiff argues the trial court erred in granting Johnson’s motion for summary
judgment, citing Holcomb, supra and Stephens, supra.
1. Holcomb v. Colonial Associates
In Holcomb, our Supreme Court examined “whether a landlord can be held
liable for negligence when his tenant’s dogs injure a third party.” Holcomb, 358 N.C.
at 503, 597 S.E.2d at 712. The landlord in Holcomb, was aware of two prior incidents
-8-
CURLEE V. JOHNSON
Opinion of the Court
involving the tenant’s Rottweiler breed dogs, yet continued to allow the tenants to
keep the dogs on the property. Id. at 504, 597 S.E.2d at 712-13.
A lease provision allowed the landlord to have the tenant “remove any pet . . .
within forty-eight hours of written notification from the landlord that the pet, in the
landlord’s sole judgment, creates a nuisance or disturbance or is, in the landlord’s
opinion, undesirable. Id at 503, S.E.2d at 712. Our Supreme Court stated the
landlord with prior knowledge of multiple past attacks could be held liable because
the express “lease provision [above] granted [the landlord] sufficient control to
remove the danger posed by [the tenant]’s dogs. Id. at 508-09, 597 S.E.2d at 715.
2. Stephens v. Covington
In Stephens v. Covington, this Court applied rationale from Holcomb to a
premises liability factual pattern that is analogous to the present case. Stephens, 232
N.C. App. at 500, 754 S.E.2d at 255. The landlord lived in the same neighborhood as
the property and knew the tenants owned a Rottweiler dog. Id. at 498, 754 S.E.2d at
254. The landlord and the tenants spoke with animal control officers regarding safety
measures for keeping a Rottweiler. Id.
The tenants created a fenced-in gate and posted “No Trespassing” and “Beware
of Dog” signs on the property. Id. The incident occurred within the dog’s fenced-in
pen. Id. Even with the multiple signs posted, and the breed of the dog, this Court
held the evidence failed to show the defendant knew or should have known the
-9-
CURLEE V. JOHNSON
Opinion of the Court
Rottweiler had a dangerous propensity prior to the attack on the plaintiff. Id. at 501,
754 S.E.2d at 256. Johnson, unlike the defendant in Stephens, was not involved with
the placing of the signs nor in arranging safety measures for Johnny.
3. Plaintiffs’ Proffer of Forecasted Evidence
Plaintiffs contend direct and circumstantial evidence tends to show Johnson
had prior knowledge of Johnny’s alleged dangerous propensities. Plaintiff sent
requests for admission of their prior knowledge of the dog’s propensities to Talado,
Craven, and Johnson. Craven failed to respond to the requests for admission. The
items contained in the request for admission sent to Craven are admitted as against
him by operation of law. See N.C. R. Civ. P. 36(a).
Talado responded pro se to Plaintiffs’ request for admission, but not under oath
or before a notary. Request for admission twelve provides: “Please admit that you
informed your landlord, John Johnson III (“landlord”), of the attack, shortly after the
attack.” Talado responded with a handwritten “yes.”
Plaintiffs contend their proffered evidence creates a genuine issue of fact of
whether Johnson knew or should have known of this prior 2014 incident. Plaintiffs
contend their proffer shows, at a minimum, a disputed issue of fact exists of whether
Talado personally informed Johnson of the incident. Additionally, Plaintiffs claim
their proffered expert testimony established, even if Johnson had not been informed
of the incident, the appearance of the “Beware of the Dog” signs constituted “a
- 10 -
CURLEE V. JOHNSON
Opinion of the Court
flashing red light to the landlord that they’ve got a potential problem there.”
Plaintiffs assert this imposed a duty upon Johnson to further investigate and inspect
the premises to determine whether the dog posed a danger and take appropriate
steps.
Taken in the light most favorable to the Plaintiffs and accepting the proffer as
true, Plaintiffs’ proffer fails to establish a genuine issue of material fact exists of
whether Johnson knew or should have reasonably known of the October 2014
incident.
Plaintiffs’ characterization of the prior October 2014 incident as an “attack” is
not supported by the evidence in the record. To the contrary, the only evidence in the
record is that the October 2014 incident occurred when another child was playing
with the dog, and during the course of that play, the child picked his head up hitting
the dog’s mouth causing a “nick” on the child’s head, resulting in a trip to the
emergency room and a stitch. That incident does not raise a genuine issue of material
fact of a “dog bite” to charge Johnson with prior notice.
Plaintiffs point to the JCAS case report that indicates it was for a
“bite/exposure investigation” and the deposition testimony of Director Massengill,
who had no independent recollection of the October 2014 incident, that the incident
involved a “minor bite” because of the lack of any documentation concerning its
severity.
- 11 -
CURLEE V. JOHNSON
Opinion of the Court
From this, Plaintiffs contend a genuine issue of material fact exists of whether
the prior incident should be classified as a dog-bite and/or attack sufficient to survive
summary judgment. That characterization conflicts with the first-hand evidence of
the October 2014 incident, and Plaintiffs offer no evidence to the contrary. JCAS
investigated the incident and determined the dog was not dangerous or potentially
dangerous.
To reach the conclusion advocated by Plaintiffs—that the October 2014
incident was “an attack” such that knowledge of it would have put Johnson on notice
of the dog’s dangerous propensity — would require speculation or conjecture that the
October 2014 incident was not as described in the uncontradicted evidence. Such
speculation or conjecture is insufficient as a matter of law to withstand summary
judgment. See Estate of Tipton v. Delta Sigma Phi, ___ N.C. App. ___, ___ 826 S.E.2d
226, 233, disc. rev. denied, 372 N.C. 703, 831 S.E.2d 76 (2019) (“[I]t is well established
that ‘a plaintiff is required to offer legal evidence tending to establish beyond mere
speculation or conjecture every essential element of negligence, and upon failure to
do so, summary judgment is proper.’” (citing Hamby, ___ N.C. App. at ___, 818 S.E.2d
at 323 (internal citation and internal quotation marks omitted)). Plaintiffs failed to
forecast evidence that Johnson knew or should have known the dog posed a danger
prior to the March 2015 incident.
- 12 -
CURLEE V. JOHNSON
Opinion of the Court
Plaintiffs assert Talado’s pro se unsworn answer to an ambiguous question of
an “attack” imputes Johnson’s prior knowledge of the 13 October 2014 incident. This
admittingly “ambiguous” interrogatory where Talado entered a hand written “yes”
does not differentiate between the 13 October 2014 or the 17 March 2015 incidents.
This notion is contrary to law.
A co-defendant’s nonresponses or admissions are not binding upon another co-
defendant, even at the summary judgment stage. Barclays American v. Haywood, 65
N.C. App. 387, 389, 308 S.E.2d 921, 923 (1983) (“Facts admitted by one defendant are
not binding on a co-defendant.”). The language of Barclays applies not only to
purported admissions of liability, but also to facts. Id. “Admissions in the answer of
one defendant are not competent evidence against a [co-defendant].” Cambridge
Homes of N.C. Ltd. P'ship v. Hyundai Constr., Inc., 194 N.C. App. 407, 418, 670
S.E.2d 290, 299 (2008). During Talado and Craven’s sworn depositions, both
specifically denied informing Johnson of the earlier 13 October 2014 incident
involving P.K.
Consistent with Draughon, this Court properly held: “If the moving party
makes out a prima facie case that would entitle him to a directed verdict at trial,
summary judgment will be granted unless the opposing party presents some
competent evidence that would be admissible at trial and that shows that there is a
- 13 -
CURLEE V. JOHNSON
Opinion of the Court
genuine issue as to a material fact.” Insurance Co. v. Bank, 36 N.C. App. 18, 26, 244
S.E.2d 264, 268-69 (1978) (emphasis supplied) (citations omitted).
Under our precedents, a pro se and unsworn answer by a co-defendant to an
ambiguous question in discovery, refuted at the sworn deposition, is not “competent
evidence . . . [to show] . . . a genuine issue as to a material fact” of Johnson’s prior
knowledge. Id. The dissenting opinion purports to bolster the unsworn answer, as
creating a factual issue, but fails to address its competency and admissibility under
N.C. Gen. Stat. § 1A-1, Rule 56. “[M]aterial offered which set forth facts which would
not be admissible in evidence should not be considered when passing on the motion
for summary judgment.” Strickland v. Doe, 156 N.C. App. 292, 295, 577 S.E.2d 124,
128 (2003) (citations omitted).
Additionally, the dissenting opinion improperly places the burden on the
Defendants. See Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735 (“the burden
shifts to the nonmoving party to produce a forecast of evidence demonstrating specific
facts, as opposed to allegations, showing that he can at least establish a prima facie
case at trial” (citation omitted)). Once Johnson showed Plaintiffs cannot introduce
evidence of an essential element of their claim, Johnson’s prior knowledge, the burden
shifts to Plaintiffs to make a forecast of prima facie evidence. which shifts and relieves
Defendant of any burden of production. Id.
- 14 -
CURLEE V. JOHNSON
Opinion of the Court
Plaintiffs have not presented a genuine issue of material fact admissible at
trial to satisfy the first prong of Stephens to prove “the landlord had knowledge that
a tenant’s dog posed a danger.” Stephens, 232 N.C. App. at 500, 754 S.E.2d at 255. A
review of the admissible evidence presented at the motion hearing and before this
Court points merely to Johnson’s knowledge that his tenants owned a dog, while they
were staying on the Property. A refuted, unsworn, pro se and inadmissible statement
does not create a genuine issue of material fact. Plaintiffs’ argument is overruled.
The cases of Barclays and Volkman provide no support for one defendant’s
inadmissible assertion against another defendant to create any genuine issue of
material fact. Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923; Volkman v. DP
Associates, 48 N.C. App. 155, 157, 268 S.E.2d 265, 267 (1980). This assertion not only
misinterprets the controlling bright line principle articulated in Barclays, but also
ignores the posture of Volkman. Barclays holds “[f]acts admitted by one defendant
are not binding on a co-defendant.” Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923.
The facts in Volkman involved interrogatories sent to a plaintiff by a defendant
and the defendant’s subsequent answers being used to support a defendant’s motion
for summary judgment. Volkman, 48 N.C. App. at 155-56, 268 S.E.2d at 266.
Alternative theories for establishing a partnership, overlooked by the trial court in
the summary judgment award, provided a justification to reverse and remand that
case on appeal. Id. at 157, 268 S.E.2d at 267.
- 15 -
CURLEE V. JOHNSON
Opinion of the Court
The instant case involves unsworn and pro se answers by co-defendants
triggering the rule from Barclays. Ignoring or overlooking this distinction and
disregarding the legitimate use and admissibility of discovery, does not create
genuine issues of material fact, nor compel a contrary result.
The bright-line rule from Draughon, Barclays, and Insurance Co. shows the
correctness of the trial court’s judgment. No case is cited to support the admission of
this unsworn and refuted answer into evidence or to allow thi.s Court to deviate from
Barclays and these precedents to reverse and remand.
Plaintiffs have not satisfied the first prong of Stephens. Plaintiffs’ “forecast of
evidence fails to support an essential element of the claim.” Hamby, __ N.C. App. at
__, 88 S.E.2d at 323. Summary judgment is proper. We do not need to address the
remaining prong of Stephens or Plaintiffs’ arguments of alleged “willful or wanton”
conduct to award punitive damages.
V. Conclusion
Plaintiffs’ “forecast of evidence” does not establish a genuine issue of material
fact exists of their alleged negligence claims against Johnson or present a prima facie
case. Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735. The trial court’s summary
judgment order is affirmed. It is so ordered.
AFFIRMED.
Judge HAMPSON concurs.
- 16 -
CURLEE V. JOHNSON
Opinion of the Court
Judge BROOK dissents with separate opinion.
-2-
No. COA19-701 – Curlee v. Johnson
BROOK, Judge, dissenting.
I respectfully dissent.
The question raised on this appeal is not whether Plaintiffs proved that
Defendant John Johnson (“Johnson”) knew that Stacie Talada (“Talada”) and
Raymond Craven’s (“Craven”) dog posed a danger; Plaintiffs will bear that burden at
trial. The question is whether, viewing the facts in the light most favorable to
Plaintiffs, Johnson carried his burden of showing there was no genuine issue of
material fact as to whether he knew the dog posed a danger. I would hold he has not
and, as such, would reverse the trial court’s entry of summary judgment for Johnson.
I. Governing Law
A party moving for summary judgment has a hill to climb. First, summary
judgment is only appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file . . . show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as a matter of law.”
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019); see also Volkman v. DP Associates, 48 N.C.
App. 155, 157, 268 S.E.2d 265, 267 (1980) (noting summary judgment improper where
“[t]he answers to the [written discovery] indicate that there is at least a question as
to” a disputed material fact). In evaluating such a motion, the evidence must be
“viewed in the light most favorable to the non-moving party”—here, Plaintiffs.
Hardin v. KCS Int’l., Inc., 199 N.C. App. 687, 695, 682 S.E.2d 726, 733 (2009). Indeed,
CURLEE V. JOHNSON
BROOK, J., dissenting
“[e]ven the slightest doubt should be resolved in favor of the nonmovant.” Volkman,
48 N.C. App. at 157, 268 S.E.2d at 267.1
Beyond these generally applicable rules, the hill becomes steeper in
circumstances such as these. “Summary judgment is seldom appropriate in a
negligence action.” Hamby v. Thurman Timber Co., LLC, ___ N.C. App. ___, ___, 818
S.E.2d 318, 323 (2018) (internal marks and citation omitted). Additionally,
“[s]ummary judgment is rarely proper when a state of mind such as intent or
knowledge is at issue.” Valdese Gen. Hosp., Inc. v. Burns, 79 N.C. App. 163, 165, 339
S.E.2d 23, 25 (1986).
As articulated by the majority opinion, to succeed in a suit against a landlord
for injuries caused by a tenant’s dog to a third party, “a plaintiff must specifically
establish both (1) that the landlord had knowledge that a tenant’s dog posed a danger;
and (2) that the landlord had control over the dangerous dog’s presence on the
property in order to be held liable for the dog attacking a third party.” Stephens v.
Covington, 232 N.C. App. 497, 500, 754 S.E.2d 253, 255 (2014). Again, Plaintiffs need
not have proved each of these elements at this summary judgment stage—instead,
1 The majority opinion notes that if the moving party shows entitlement to summary judgment,
it “will be granted unless the opposing party presents some competent evidence that would be
admissible at trial and that shows that there is a genuine issue as to a material fact.” Old S. Life Ins.
Co. v. Bank of N.C., N.A., 36 N.C. App. 18, 26, 244 S.E.2d 264, 268-69 (1978). The next sentence in
Old is equally pertinent here, however: “In addition, as is true of other material introduced on a
summary judgment motion, uncertified or otherwise inadmissible documents may be considered by
the court if not challenged by means of a timely objection.” Id.
2
CURLEE V. JOHNSON
BROOK, J., dissenting
Johnson must establish that they have not forecast evidence sufficient to create a
genuine issue of material fact with regard to each element of the claim. Addressing
each element pursuant to the applicable de novo standard of review, I would hold that
Johnson has not met his burden of establishing there is no genuine issue of material
fact.
II. Application
A. Knowledge of Dog’s Dangerousness
Plaintiffs have not only alleged but presented evidence, through requests for
admission and deposition testimony, that places Johnson’s knowledge in dispute. I
briefly review this evidence below.
Plaintiffs submitted requests for admissions to Talada and Craven. In
response to these requests, Talada made certain handwritten admissions as follows:
9. Please admit that you owned a pit bull mix named
Johnny which you kept on the property you leased . . .
RESPONSE: never owned a pit bull
10. Please admit that this pit bull attacked (“the attack”)
and injured a child (“the child”) on or about October 13,
2014 on the property.
RESPONSE: never owned a pit bull
11. Please admit that the child bitten on your property
required medical treatment following the attack.
RESPONSE: yes
3
CURLEE V. JOHNSON
BROOK, J., dissenting
12. Please admit that you informed your landlord, John
Johnson III (“landlord”), of the attack, shortly after the
attack.
RESPONSE: yes
(Emphasis added.) Craven did not respond; he is therefore deemed to have admitted
each request by operation of law. See N.C. Gen. Stat. § 1A-1, Rule 36(a) (2019) (“The
matter is admitted unless, within 30 days after service of the request, . . . the party
to whom the request is directed serves upon the party requesting the admission a
written answer or objection[.]”). Talada and Craven, in short, both admitted that
they informed Johnson of the 13 October 2014 incident shortly after it occurred.
In addition to these admissions, Talada testified that Johnson would come to
her house once a month to collect rent. Johnny would be in the yard during some of
these visits. Both Craven and Talada testified at their depositions that they posted
at least four “Beware of Dog” signs around their property after the October incident.
Chad Massengill, Director of Johnston County Animal Services, testified at his
deposition that such signs can be helpful in informing the public that a dog could be
potentially dangerous. Plaintiffs’ expert witness, Certified Property Manager Daryl
Greenberg, testified that the appearance of such signs “is a flashing red light to the
landlord that they’ve got a potential problem there . . . and that they have a duty to
inspect and take additional steps under the area of safety.” Johnson also admitted
that he saw the signs and that he did not ask why they were posted when they had
not been posted previously.
4
CURLEE V. JOHNSON
BROOK, J., dissenting
Considered as a whole and in the light most favorable to Plaintiffs, this
evidence places Johnson’s knowledge of the danger the dog posed at issue and meets
the low bar of establishing a genuine issue of material fact. The narrative is easy
enough to discern: Talada and Craven told Johnson about the 13 October 2014
incident involving Johnny biting another child, requiring that child to receive medical
care; they further put up “Beware of Dog” signs on the property in response to this
incident, a “flashing red light to the landlord that [he had] a potential problem”;
Johnson saw these signs; and, in response to these developments, Johnson did
nothing. Taken in the light most favorable to Plaintiffs, these facts are cleanly
distinguishable from instances where our Court has found no genuine issue of
material fact in this context and, as such, are sufficient to survive a motion for
summary judgment. See Stephens, 232 N.C. App. at 501, 754 S.E.2d at 256
(“Defendant [landlord] could not have known that Rocky [the dog] was dangerous[.]”).
The majority’s response is to shade both the facts and law in favor of
Defendant, which is inappropriate here given that he moved for summary judgment.
I discuss three instances of such shading below.
First, the majority resolves ambiguities pertaining to the 13 October 2014
incident in favor of Defendant. Talada in her deposition testimony stated that the
October incident between her dog and another child resulted in the child receiving
“one or two stitches” from emergency medical personnel. Furthermore, the hospital
5
CURLEE V. JOHNSON
BROOK, J., dissenting
reported the incident as a “minor bite” to Johnston County Animal Services. In
contrast, the majority opinion characterizes the record as follows: “the only evidence
. . . is that the October 2014 incident occurred when another child was playing with
the dog, and during the course of that play, the child picked his head up hitting the
dog’s mouth causing a ‘nick’ on the child’s head, resulting in a trip to the emergency
room and a stitch.” Curlee, supra at ___. This interpretation of the record evidence
resolves ambiguities in a manner helpful to Defendant. But, at this point in the
proceeding, our mandate is clear: to view the record evidence in the light most
favorable to the Plaintiffs as they seek to establish notice of dangerousness. 2
Second, the majority interprets ostensibly ambiguous requests for admission
in a manner disadvantageous to Plaintiffs.
As an initial matter, the majority is incorrect that Plaintiffs’ requests for
admission do not distinguish between the 13 October 2014 and the 17 March 2015
incidents. In fact, the requests for admission are not ambiguous in the least. The
requests at issue, as noted above, proceed as follows:
10. Please admit that this pit bull attacked (“the attack”)
and injured a child (“the child”) on or about October 13,
2014 on the property.
2 The majority opinion further notes Johnston County Animal Services “determined Johnny
did not satisfy the statutory definition of either a dangerous dog or even a potentially dangerous dog.”
Curlee, supra at ___. Left unsaid is that these statutory definitions did not factor into the inquiry in
Holcomb or Stephens and that the definitions are quite exclusive, including only dogs who have killed
or inflicted severe injury without provocation, “[i]nflicted a bite on a person that resulted in broken
bones or disfiguring lacerations[,]” and the like. N.C. Gen. Stat. § 67-4.1 (2019).
6
CURLEE V. JOHNSON
BROOK, J., dissenting
RESPONSE: never owned a pit bull
11. Please admit that the child bitten on your property
required medical treatment following the attack.
RESPONSE: yes
12. Please admit that you informed your landlord, John
Johnson III (“landlord”), of the attack, shortly after the
attack.
RESPONSE: yes
(Emphasis added.) The requests plainly utilize the parenthetical to define the 13
October 2014 incident as “the attack” and then refer back to that incident using that
same language in the requests for admission that immediately follow. Even without
guidance from the parenthetical, the most straightforward reading of the above is
that requests 11 and 12 are referring to the event introduced in request 10. This
straightforward interpretation is reinforced when reviewing the requests for
admission as a whole. The 17 March 2015 “attack” is the only other “attack”
referenced therein, and it is not introduced until request 17. And, when it is
referenced, it is defined parenthetically as the “second attack[.]” Hence, it is clear
that the “attack” referenced in requests 11 and 12 is that of 13 October 2014.
But even accepting request 12 as ambiguous does not support the grant of
summary judgment. At this stage in the proceedings, “[e]ven the slightest doubt
should be resolved in favor of the nonmovant.” Volkman, 48 N.C. App. at 157, 268
7
CURLEE V. JOHNSON
BROOK, J., dissenting
S.E.2d at 267; see also Warren v. Rosso and Mastracco, Inc., 78 N.C. App. 163, 164,
336 S.E.2d 699, 700 (1985) (“If different material conclusions can be drawn from the
evidence, then summary judgment should be denied.”). Accordingly, the affirmative
responses from Talada and Craven to request 12 here must be interpreted as evidence
that Johnson knew of the 13 October 2014 incident shortly after it occurred.
Finally, Johnson and the majority opinion also suggest that the admissions
from Talada and Craven cannot raise a genuine issue of material fact. But the rules
are clear: summary judgment is only appropriate where “pleadings, depositions,
answers to interrogatories, and admissions on file . . . show that there is no genuine
issue as to any material fact.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019).
The majority opinion cites Cambridge Homes of N.C. Ltd. P’ship v. Hyundai
Constr., Inc., 194 N.C. App. 407, 670 S.E.2d 290 (2008), and Barclays American
Financial, Inc. v. Haywood, 65 N.C. App. 387, 308 S.E.2d 921 (1983), as dooming
Plaintiffs’ appeal; however, a brief review indicates this is not so.3 Both cases are
cited, at bottom, for the proposition that “[f]acts admitted by one defendant are not
binding on a co-defendant.” Cambridge, 194 N.C. App. at 418, 670 S.E.2d at 299
(quoting Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923). Barclays illustrates this
central point well. There, the trial court granted plaintiff summary judgment against
3 In addition to the below reason that these cases do not stand for the proposition asserted,
Cambridge is inapposite here as it deals with a far different circumstance: whether to reverse the
denial of a motion to dismiss for lack of personal jurisdiction. 194 N.C. App. at 419, 670 S.E.2d at 299.
8
CURLEE V. JOHNSON
BROOK, J., dissenting
one defendant based on another defendant’s admission via failure to respond to
requests for admission. Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923. While this
admission made summary judgment proper against the defendant who failed to
respond, our court reversed the entry of summary judgment against the other
defendant the plaintiff sought to bind. Id.
But just because one defendant’s admission is not all powerful with the effect
of resolving all issues as to another defendant does not mean it is inert. As in
Barclays and Volkman, in the current controversy, “[t]he answers to the [written
discovery] indicate[d] that there [wa]s at least a question as to” the key issue. 48 N.C.
App. at 157, 268 S.E.2d at 267. And, here, as there, summary judgment is thus
inappropriate.4
B. Control Over Dog’s Presence on the Property
I turn briefly to the second element Plaintiffs must ultimately prove: “that
[Johnson] had control over the dangerous dog’s presence on the property[.]” Stephens,
232 N.C. App. at 500, 754 S.E.2d at 255.
4 The majority also argues these admissions were not properly considered at summary
judgment because they were unsworn, an argument not made by Johnson at the trial court or before
our Court. This argument has been waived because it was not raised below and, as such, is not
properly before us. See Thelen v. Thelen, 53 N.C. App. 684, 689, 281 S.E.2d 737, 740 (1981). Further,
assuming arguendo that the majority opinion is correct as to admissibility, “as is true of other material
introduced on a summary judgment motion, uncertified or otherwise inadmissible documents may be
considered by the court if not challenged by means of a timely objection.” Old S. Life Ins. Co., 36 N.C.
App. at 26, 244 S.E.2d at 269.
9
CURLEE V. JOHNSON
BROOK, J., dissenting
Our Supreme Court in Holcomb v. Colonial Assocs., 358 N.C. 501, 597 S.E.2d
710 (2004), articulated the relevant inquiry as whether the landlord had “sufficient
control to remove the danger posed by” a tenant’s dog. Id. at 508-09, 597 S.E.2d at
715. The Holcomb Court found that the tenants’ lease clearly granted the landlord
the right to remove any pet undesirable to the landlord. Id. at 508-09, 597 S.E.2d at
715. The Supreme Court cited several cases from other jurisdictions for the
proposition that a written lease provision does not provide the only manner by which
a landlord can exercise control over a tenant’s dog. Id. (Uccello v. Laudenslayer, 44
Cal. App. 3d 504, 514, 118 Cal. Rptr. 741, 747 (1975) (holding the landowner had
control via the power “to order his tenant to cease harboring the dog under pain of
having the tenancy terminated”); Shields v. Wagman, 350 Md. 666, 684, 714 A.2d
881, 889-90 (1998) (holding the landowner could exercise control over his tenant’s dog
by refusing to renew a month-to-month lease agreement)).
Here, Johnson’s deposition testimony indicated the following regarding the
control he retains over his tenants’ dogs:
[JOHNSON]: My policy is if, it can’t be a nuisance to any
of the tenants or property owners, it can’t destroy my
property of course and be, you know, dangerous to anybody
else in the area. What I do is if someone, if I get a phone
call, generally it’s from an adjoining one or someone close
by saying hey, I have got a problem with so and so and so
and so, this is the problem. I go to that tenant and I say
okay, I have been notified there is a problem, this is what
they have said. Let’s just use an example of a nuisance, a
dog, barking dog. If they can’t stop the dog from
10
CURLEE V. JOHNSON
BROOK, J., dissenting
barking, they’re going to have to move or get rid of the
dog and I have had many people move.
Q: Because of a barking dog?
[JOHNSON]: Because they can’t figure it out. You figure
it out. If you don’t figure it out, I’ll figure it out.
Q: So, you have the power to kick them out of there if they
don’t stick to your policy even with a barking dog?
[JOHNSON]: If that dog is a nuisance to other tenants and
property owners, sure. Sure.
(Emphasis added.) He further testified that he has before exercised control over
tenants’ dogs by evicting tenants over an issue with an animal and that he has
required tenants to get rid of dogs.
Accordingly, Johnson has not met his burden of establishing that no genuine
issue of material fact exists regarding his control over Talada and Craven’s dog.
III. Conclusion
Were I a juror and defense counsel made the majority’s arguments, I might
well be persuaded. But we are not there yet. At this stage in the proceedings, the
majority opinion steps beyond our limited role in a fashion at odds with our
precedent’s teaching that “[s]ummary judgment is an extremely drastic remedy that
should be awarded only where the truth is quite clear.” Volkman, 48 N.C. App. at
157, 268 S.E.2d at 267. Taking the facts in the light most favorable to Plaintiffs, as
is our duty here, there is no such clarity as to the matter at issue: whether Johnson
11
CURLEE V. JOHNSON
BROOK, J., dissenting
knew the dog posed a danger. I respectfully dissent and would reverse the entry of
summary judgment.
12