Carlton F. Poston v. Dr. Jack and Beverly Hyatt13-CVS-852, Catawba County
This matter arose from a dog bite incident occurring at Defendants’ home on December 3, 2010. Plaintiff was a HVAC technician and was performing work on Defendants’ HVAC unit on the day of the incident.
Defendants’ have owned many Bullmastiff breed dogs in their lives as they both love the breed and have shown their dogs in various AKC competitions over the years. Two of their prior Bullmastiffs have been AKC champions for the breed. Defendants’ home also contained an indoor/outdoor room separate from the main living space, so the dogs could go out to their run in the backyard and also come into the indoor/outdoor room of the home. The indoor/outdoor room was separated from the rest of the home by a dutch-door such that the top half and bottom half of the door swung separately.
On December 3, 2010 Plaintiff was working on Defendants’ HVAC unit in the basement of the home. He came from the basement to talk to Ms. Hyatt who was standing in the indoor/outdoor room with three of her dogs. The bottom half of the dutch-door was closed, and Ms. Hyatt and the dogs were on one side of the door and Plaintiff was on the other side.
Ms. Hyatt testified that Plaintiff reached over the door to pet one of her Bullmastiff dogs, Molly, and in doing so startled Molly causing her to bite Plaintiff on the hand. Plaintiff testified that he was standing beside the door and resting his hand on the top of the door when Molly came up to him and bit the top of his hand without provocation. Defendants both testified that Molly had never bitten anyone or showed any signs of aggressions before this incident.
Subsequent to the bite Plaintiff’s puncture wound became infected, and the infection continued on for several weeks. The infection was found to have been caused by a rare bacteria, Pastuerella Pneumotropica, which is occasionally found in dogs and cats. Because the infection could not be healed it destroyed the tissue in the middle part of Plaintiff’s hand, and his doctors recommended amputation of his middle finger. In total, Plaintiff’s medical expenses and lost wages amounted to $100,969.
At the close of Plaintiff’s case in chief Defendants moved for directed verdict on the grounds there was no evidence that Molly had ever shown aggressive tendencies or bitten anyone before. Therefore Defendants’ had no reason to believe she would have bitten Plaintiff on this occasion. However there was testimony from two of Plaintiff’s co-workers, who had been at Defendants’ home working on the HVAC unit four years before this incident, that they were scared when one of the Defendants’ dogs barked, growled, and jumped up on the dutch-door while they were in Defendants’ home. The witnesses were uncertain whether this dog was Molly because Defendants’ owned three Bullmastiffs at this time. The witnesses described this incident as an attempted attack, although they conceded that while they were scared the dog was always confined to the indoor/outdoor room and never bit, chased, on jumped on them in any way. As a result of this testimony the motion for directed verdict was denied.
The defense also moved for directed verdict on Plaintiff’s common law claim for strict liability. Defense counsel argued that a strict liability claim could only be supported by evidence of expert testimony that the particular breed of dog had characteristics of viciousness or aggression. This motion was again denied because of the testimony from the witnesses describing they were scared by aggressive conduct by one of the Defendants’ dogs four years earlier.
The case went to the jury on four issues: negligence, contributory negligence, strict liability, and damages. The jury deliberated for about three hours and found Defendants’ negligent, and Plaintiff contributorily negligent. On strict liability the jury was charged with deciding the issue of whether the Defendants owned or kept a vicious animal? The jury answered “No” to this issue, and the issue of damages was not reached.
Some members of the jury commented after the verdict that they could see both parties having some responsibility for the bite occurring; however no one believed that Molly was a vicious dog, thereby shielding Defendants from the strict liability cause of action.
