TO: MARSHA MELLOW,
FROM: HARBOUR VIEW,
RE: MARSHA MELLOW DOGBITE CLAIM,
DATE: 12TH February, 2018.
SUBJECT: Whether or not the claimant can recover on her dog bite claim.
The claimant herein, Marsha Mellow received a bite wound from a nearby neighbor’s house when she entered the neighbor’s yard to retrieve her ball which had accidentally been thrown into the neighbor’s property. Despite her having the knowledge that the neighbor has a Doberman Pincher in his residence and frequently being warned that the dog does not like strangers. When the ball gets lost in the neighbor’s yard, Marsha goes to retrieve the ball as she does not see the dog anywhere in sight. The dog is normally tied to a post in the front yard, and Marsha takes the extra precaution to check if the dog is around. After confirming no sight of the dog, she jumps the fence to retrieve the ball as the dog bursts out of the bush and proceeds to bite her hard on her hand. After kicking the dog to try and break free, the dog proceeded to bite her buttocks, leg, and ankle before Marsha could finally get jump over the fence to safety.
Based on the above facts, the following are the issues and questions for determination:
I. Whether or not the claimant’s acts provoked the dog;
II. Whether or not the defendant owned the dog;
III. Whether or not the defendant is liable for the dog bite claim.
I. The claimant jumping the fence did not amount to trespass; nor did she actively provoke the dog.
II. The dog does in fact belong to the defendant, making him liable for its actions, as it caused several injuries.
III. The defendant is in fact liable for the dog bite claim.
The following rules emanating from case law of North Carolina shall be applicable:
Simpson v. Skinner used the rule that when the claimant had passed into the dog owner’s property and started to actively provoke the dog, the claim of recovering for the injury could not be awarded, and the dog bite was a means of self-defense for the dog which it was entitled to.
Pinky Pie v. Discord was similar to Simpson v. Skinner as it reaffirmed its ruling and stated that even unintentional provocation, the claimant could not receive payment for her claim and that there was enough of a provocation to make the claim null.
In Loman v. Charley, it was decided that the claimant had been walking on the public sidewalk and that spraying the dog was only done after the dog had attacked the claimant, which was an action of self-defense in the place of the claimant.
The case laws state that the dog owner will not be liable when a claimant has trespassed onto a defendant’s property, and if the dog was provoked, which leads to an injury. However, in the case of Loman v. Charley, the claimant was walking on a public sidewalk and the instigation of the dog was purely out of defense, the defendant will be held accountable. To this degree, Marsha Mellow’s claim should succeed, based on the fact that the dog was not provoked whether intentionally or unintentionally, and that the backyard had been known to be used by other people with the assurance by the dog owner that it was safe.
Due to the circumstances, the claim should succeed, according to the already established case laws. The claimant did not intentionally or unintentionally provoke the dog in, nor was the claimant considered trespassing as the property had been known to have public traffic regularly.