Heard in the Court of Appeals 9 October 2013.
Appeal by plaintiff from order entered 3 October 2012 by Judge Gary E. Trawick
in New Hanover County Superior Court.
Smith Moore Leatherwood LLP, Raleigh, by Matthew Nis Leerberg, and The Kirby Law Firm, Clinton, by Albert D. Kirby, Jr., for plaintiff-appellant.
Culbreth Law Firm, LLP, Wilmington, by Stephen E. Culbreth, for defendant-appellee.
Joshua Stephens (" plaintiff" ) appeals from an order granting summary judgment in favor of Shelby Covington (" defendant" ). Defendants James and Glenda Hewett (collectively, " the Hewetts" ) are not parties to this appeal. Plaintiff only appeals the 3 October 2012 order granting summary judgment in defendant's favor. We affirm.
In the early 1990s, the Hewetts leased a home located on Louisiana Avenue in Wilmington, North Carolina (" the property" ) from defendant's husband, John Covington (" Mr. Covington" ) (collectively with defendant, " the Covingtons" ). Mr. Covington knew that the Hewetts owned a Rottweiler (" Rocky" ), and since the houses in the neighborhood were close together, Mr. Covington and the Hewetts contacted Animal Control regarding safety measures for keeping a dog. As a precaution and at the direction of Animal Control, the Hewetts created a fenced area in the backyard with two gates and posted " Beware of Dog" and " No Trespassing" signs on each gate.
Shortly after the Hewetts leased the property, but prior to purchasing it, Rocky grew so large that the Hewetts began keeping Rocky exclusively in the fenced area. At the time the incident in the instant case occurred, plaintiff was eight years old. Plaintiff visited his friend Jeremy Hewett (" Jeremy" ), the Hewetts' nine-year-old son. During plaintiff's visit, plaintiff followed Jeremy when he entered the fenced area to refill Rocky's water dish. While the boys stood in the fenced area, Rocky bit plaintiff's lower leg. Jeremy hit Rocky with a stick to make him release plaintiff. When Jeremy was unsuccessful, he ran to get his mother. Rocky briefly released plaintiff, but then bit him again, catching plaintiff's shoulder in his teeth. Eventually Glenda Hewett managed to release plaintiff from Rocky, and a neighbor pulled plaintiff over the fence, safely away from Rocky. Plaintiff sustained " extremely severe" injuries to both his leg and shoulder. Animal Control officers investigated and took statements from witnesses. After Rocky remained at the animal shelter for a ten day mandatory quarantine period, James Hewett decided to have him euthanized.
In October 2008, after plaintiff reached majority, he filed a complaint against the Covingtons and the Hewetts. However, since Mr. Covington died in 1998, the complaint was voluntarily dismissed without prejudice. Plaintiff refiled the complaint against the Hewetts and defendant on 27 January 2011. Plaintiff alleged, inter alia, negligence against the Hewetts and defendant. On 21 November 2012, the trial court entered a final judgment of $500,000 against the Hewetts as compensatory damages. On 12 March 2012, defendant filed a motion for summary judgment. After a hearing in New Hanover County Superior Court, the trial court entered an order on 3 October 2012 granting defendant's motion. Plaintiff appeals the order granting summary judgment in defendant's favor.
II. Standard of Review
" Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.’ " In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
" When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the ...