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Parker v. Colson

Court of Appeals of North Carolina

July 2, 2019

TERRY PARKER, Plaintiff,
v.
HENRY COLSON, BARBARA COLSON MYERS, AND VICKIE COLSON, Defendants.

          Heard in the Court of Appeals 22 August 2018.

          Appeal by Plaintiff from order entered 31 March 2016 by Judge Mary Ann Tally in Anson County, No. 15 CVS 102 Superior Court.

          Hunter & Everage, PLLC, by Charles Ali Everage, for plaintiff-appellant.

          McAngus Goudelock & Courie, PLLC, by John P. Barringer and Meredith L. Cushing, for defendant-appellee.

          MURPHY, JUDGE

         Plaintiff, 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.

         BACKGROUND

         Myers 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.

         Henry 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.

         During 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.

         Approximately 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.

         Parker 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 (2017) (unpublished):

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 against her.

Id. at *1. Parker now appeals the trial court's order granting Myers's motion for summary judgment.

         ANALYSIS

         A. Standard of Review

         Our standard of review for an order granting summary judgment is well established:

[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 ...

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