in the Court of Appeals 22 August 2018.
by Plaintiff from order entered 31 March 2016 by Judge Mary
Ann Tally in Anson County, No. 15 CVS 102 Superior Court.
& Everage, PLLC, by Charles Ali Everage, for
McAngus Goudelock & Courie, PLLC, by John P. Barringer
and Meredith L. Cushing, for defendant-appellee.
Terry Parker ("Parker"), challenges the trial
court's order granting summary judgment to Defendant,
Barbara Colson Myers ("Myers"), on Parker's
negligence per se claim based upon three municipal
ordinances and negligence claim based on a theory of premises
liability. We hold the trial court erred in granting
Myers's motion for summary judgment on Parker's
negligence per se claim based on Wadesboro Ordinance
§ 4-4, but affirm the trial court's order granting
Myers's motion for summary judgment on the negligence
per se claim based on Wadesboro Ordinances
§§ 4-7 and 4-31. Additionally, we affirm the trial
court's order granting Myers's motion for summary
judgment on Parker's negligence claim based on a theory
of premises liability.
is the sole owner of a residential home and the parcel of
land upon which it sits at 914 Dora Street in Wadesboro.
Immediately adjacent to Myers's parcel of land is a
parcel owned by Myers's sister, Vickie Colson
("Vickie"). On Vickie's property at 916 Dora
Street sits a little stone house that was uninhabitable and
boarded up, with no running water or electricity. There is no
fence separating the two parcels. Neither property is the
primary residence of either sister. Myers's primary
residence is in Texas, and Vickie's primary residence is
in South Carolina. However, at all relevant times, the two
sisters and their brother, Henry Colson ("Henry"),
all had keys and full access to Myers's home and both
parcels of land.
resided in Charlotte and ran a pitbull breeding
"business." Henry's girlfriend told him that he
could not continue to board his two pitbulls at her residence
due to insurance concerns. Henry told his sisters that he
would be moving the two dogs to Wadesboro and selling any
puppies born on the property. An enclosure was built to board
the two dogs on Vickie's property. Myers's home was
used to store the food for the dogs, and, since Vickie's
property had no running water or electricity, it was also
used to provide water and electricity to care for the dogs.
In 2013, none of the siblings resided primarily in Wadesboro,
despite the dogs being boarded there. Henry would drive from
Charlotte only twice a week to feed the dogs; however, when
Myers occasionally visited Wadesboro, she would provide the
food and water for the dogs.
one of Myers's visits to her home in Wadesboro, Myers let
the two dogs out of their enclosure to roam free in the yard.
While the dogs were out of the enclosure, Parker's
brother, Tommy Parker ("Tommy"), was walking along
Dora Street. Myers yelled at Tommy not to come into the yard
because the dogs were roaming free. Hearing Myers yell, the
two dogs "just took off." The dogs chased Tommy and
"jumped on him," causing a wound that drew blood.
one month later on 30 August 2013, the date in question, the
dogs were let out of the enclosure by Henry and were drinking
water from the faucet located on Myers's property. At
this time, Parker was walking down the street where the
properties were located. While walking, Parker observed the
two dogs run from Myers's property towards him. The dogs
attacked, leaving Parker hospitalized for 13 days with severe
and permanent injuries to his legs.
subsequently brought a personal injury action against Henry,
Vickie, and Myers in Anson County Superior Court, the
procedural history of which we outlined in Parker v.
Colson, ___ N.C. App.__, 795 S.E.2d 654, 2017 WL 490487
In his complaint, [Parker] asserted claims grounded in strict
liability and negligence per se. [Myers]
subsequently filed a motion to dismiss [Parker's] claims
against her pursuant to Rule 12(b)(6) of the North Carolina
Rules of Civil Procedure. On 14 October 2015, the trial court
granted [Myers's] motion as to [Parker's] claim based
on strict liability but denied the motion as to the claim
based on negligence per se.
On or about 21 January 2016, [Myers] filed a motion for
summary judgment as to the remaining claims against her.
[Parker] subsequently filed a cross-motion for partial
summary judgment against all of the defendants on the issue
of negligence per se. A hearing was held before the
Honorable Mary Ann Tally on 28 March 2016 in connection with
the pending motions. On 31 March 2016, the trial court issued
an order (1) granting [Parker's] motion for summary
judgment on the issue of negligence per se as to
Henry and Vickie; and (2) granting [Myers's] motion for
summary judgment, thereby dismissing all remaining claims
Id. at *1. Parker now appeals the trial court's
order granting Myers's motion for summary judgment.
Standard of Review
standard of review for an order granting summary judgment is
[We] review a trial court's entry of summary judgment
de novo. Summary judgment is proper when 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 any
party is entitled to a judgment as a matter of law. When
considering a motion for summary judgment, the trial judge
must view the presented evidence in a light most favorable to
the nonmoving party. The moving ...