Appeal by defendants from Lupton, Judge. Judgment entered 19 May 1978 in Superior Court, Rowan County. Heard in the Court of Appeals 27 June 1979.
Morris, Chief Judge. Judges Parker and Martin (Harry C.) concur.
The primary question presented by defendants' appeal concerns the application of the North Carolina rule with respect to the liability of the keeper of domestic animals. Defendants contend that the trial court's instructions were erroneous because they failed to require the jury to find that Dana's April had a
vicious propensity and that defendants knew or should have known of this propensity. We reject defendants' contention for the reasons explained below.
The notion that a party must show the dangerous propensity of a domestic animal before establishing a basis for recovery arose originally in what were essentially strict liability cases. See generally Prosser, Law of Torts § 76 (4th Ed. 1971). The basis of the action was the neglect or failure of the owner to restrain the domestic animal known to be vicious and thus liable to do harm. See generally 3A C.J.S., Animals § 177; 4 Am. Jur. 2d, Animals § 86. See also Restatement, Second, Torts § 509, comment d. The early North Carolina decision of Cockerham v. Nixon, 33 N.C. 269 (1850), was expressed in language which smacks of such strict liability. The Court reasoned that the "fact [of a bull's viciousness and dangerousness] coming to the knowledge of the owner, is notice sufficient to put him in the wrong and make him liable for the consequences of his neglect to keep the animal confined." Id. at 270. The Court further stated:
"When the owner knows or has reason to believe that an animal is dangerous, on account of a vicious propensity in him, from nature or habit (a term used to denote an acquired as distinguished from a natural vice), it becomes his duty to take care that no injury is done; and he is liable for any injury which is likely to be the result of this known vicious propensity." Id. at 271.
Although there may be argument to the contrary, we do not believe our Courts have ever authoritatively determined whether the strict liability rule as applied at common law now applies in North Carolina. The Court in Hill v. Moseley, 220 N.C. 485, 17 S.E.2d 676 (1941), raised the issue but concluded that it was unnecessary to resolve the question in that action based upon negligence. Some other decisions applying the rule do not specify whether the action was brought in negligence. See e.g., Sellers v. Morris, 233 N.C. 560, 64 S.E.2d 662 (1951); Plumides v. Smith, 222 N.C. 326, 22 S.E.2d 713 (1942); Harris v. Fisher, 115 N.C. 318, 20 S.E. 461 (1894).
Recent decisions of the Supreme Court and this Court rendered in negligence actions suggest that the gravamen of the action is not negligence, yet nevertheless apply the standard of a
reasonable person. See e.g., Sink v. Moore and Hall v. Moore, 267 N.C. 344, 148 S.E.2d 265 (1966); Sanders v. Davis, 25 N.C. App. 186, 212 S.E.2d 554 (1975); Miller v. Snipes, 12 N.C. App. 342, 183 S.E.2d 270 (1971), cert. denied, 279 N.C. 619, 184 S.E.2d 883 (1971). All of these cases involved negligence actions. To the extent that those cases applied the reasonable person standard in the context of negligence actions seeking to recover for injury caused by the dangerous propensity of the animal, the decisions are no doubt correct. To the extent the language in those decisions might by implication affect other actions, it is dictum.
Our brief summary of the history of the North Carolina vicious propensity rule indicates that often times decisions are rendered without distinguishing between traditional negligence actions and actions which at common law might amount to actions involving strict liability. The reported decisions most often applying the vicious propensity rule arise in what is clearly a negligence context. See e.g., Swain v. Tillett, 269 N.C. 46, 152 S.E.2d 297 (1967); Sink v. Moore and Hall v. Moore, supra; Hill v. Moseley, supra; Hallyburton v. Fair Association, 119 N.C. 526, 26 S.E. 114 (1896); Pharo v. Pearson, 28 N.C. App. 171, 220 S.E.2d 359 (1975); Sanders v. Davis, supra; Miller v. Snipes, supra; Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1 (1970). Into these decisions has been infused precedent from decisions such as Cockerham v. Nixon, supra, which presented facts which at common law would have supported a strict liability action upon proof of vicious propensity and knowledge by the owner. We consider this observation pertinent because it explains the origin of the rule as has been stated in negligence cases. What has evolved therefrom is not actually a hybrid cause of action but a line of cases enunciating a rule encompassing a specific application of the traditional standard of reasonable care in negligence actions. The rule correctly requires the keepers of domestic animals to guard against injury or damage from reasonably anticipated conduct of these animals. See generally Prosser, Law of Torts § 33 at 170 (4th ed. 1971). The line of cases beginning with Rector v. Coal Co., 192 N.C. 804, 136 S.E. 113 (1926), state the rule as follows:
"The liability of an owner for injuries committed by domestic animals, such as dogs, horses and mules, ...