A self-employed cleaning woman in a rural North Carolina county visited a new customer’s home for the purpose of providing an estimate. During this meeting, the business owner/cleaning woman inspected the property, which included a large farmhouse and a separate pool house; provided a quotation for services; and met the homeowner’s 2 Pit Bull dogs, who while supervised by the property owner appeared friendly.
Two days later, the cleaning woman and her 11-year-old daughter arrived at 8 am to perform the verbally contracted service. At the time, the property owner had already departed for work. Therefore, no resident was present on the property.
Once the cleaning woman parked in the driveway, her daughter exited the passenger side of the vehicle, and then opened the rear door of their 4-door pickup to remove equipment they brought to the job. Upon opening the rear door, the daughter was approached by a large, female Pit Bull dog, who apparently sought friendly interaction.
Suddenly, an even larger, male Pit Bull dog appeared and immediately began attacking the daughter. The cleaning woman promptly exited the driver side door to help her daughter fend off the onslaught. She was able to grab the animal’s collar, extricating her daughter from the Pit Bull’s dental salvo. The daughter then hurriedly re-entered the F-150 truck, closed the door, and called 9-1-1. Unfortunately, while awaiting the arrival of police, the daughter witnessed a horrific experience.
The male Pit Bull diverted its attack to the cleaning woman, whereupon the female Pit Bull joined the assault. Each time the cleaning woman attempted to remove or evade the dogs, one or both continuously battered her to the ground. Although the male dog inflicted the most severe bites, both dogs orally penetrated the cleaning woman’s flesh during the lengthy oral bombardment.
The violence was persistent, intense, and damaging, until the cleaning woman finally could again grab the male dog by its collar, lift the dog in the air while twisting its collar, and create enough distance, where she had sufficient time to flee inside her truck and hurriedly close the driver-side door. Lamentably, by this time, she suffered frightful lacerations to her legs, back, abdomen, and arms.
An upper arm wound was the most severe, as muscle tissue was exposed and left hanging. Concomitantly, once EMTs arrived, they rushed both the cleaning woman and her daughter to proximal hospital emergency rooms.
The cleaning woman incurred medical costs, pain and suffering, psychological damages, and emotional distress. The medical costs included acute emergency room care, subsequent outpatient care, and future expenses for ongoing cosmetic surgery. Pain and suffering arose from contusions, lacerations, and inflammation related to the multiple deep bites. Psychological damages were highlighted by her developing a chronic fear of dogs that resulted in her becoming too afraid to continue her occupation. Consequently, there were also economic damages. Emotional distress occurred when she witnessing a vicious animal suddenly attack her daughter, within a domestic working environment that should have been kept safe.
Nevertheless, there were significant obstacles to what on the surface may seem like a cut and dry slam dunk case. First, North Carolina civil dog bite statute (67-4.4) imposes strict liability, but only if the dog had previously been declared “dangerous,” as defined by statute 67-4.1. Neither Pit Bull was classified as dangerous or potentially dangerous. Second, the Defendant claimed he lacked notice, since he had never observed either dog act aggressively toward a human. Moreover, there was no evidence contradicting the Defendant’s claim- no animal control citations, comments on veterinary records, or useful observations from neighbors or other third parties. Third, the Defendant claimed the cleaning woman assumed risk, both by saying during the estimate that she didn’t mind the dogs being loose when she returned to clean the home and by exiting the truck upon observing the dogs approaching the vehicle.
Compounding the impediment posed by the last claim, North Carolina is a contributory negligence state. Therefore, if during trial the Defense convinces a judge or jury that the Plaintiff in any manner or degree negligently contributed to her predicament, then the Plaintiff receives nothing. Contributory negligence contrasts with comparative negligence doctrine, where the Plaintiff’s recovery would be reduced pro rata if she was deemed partially negligent.
Due to the harshness of contributory negligence doctrine upon persons suffering damages, comparative negligence is the rule in 46 US states- all but Alabama, Maryland, North Carolina, and Virginia. Nevertheless, the cleaning woman was injured in North Carolina. Therefore, the potential of a jury considering the Plaintiff/cleaning woman partially responsible for the incident posed a major hurdle.
The insurance company representing the Defendant was well aware of the figurative contributory wrecking ball, ready to demolish the Plaintiff’s case. Resultantly, during mediation the insurer proposed an initial settlement offer that barely exceeded initial medical costs, and then remained intractable.
Fortunately, a synergistic collaboration between Plaintiff counsel and the CPT expert produced favorable results. First, CPT assisted Plaintiff’s counsel in developing deposition questions and strategies. At first glance, the Defendant’s deposition responses appeared difficult to surmount. However, upon closer inspection, both the Plaintiff’s attorney and the CPT expert doubted the verity of several key Defendant answers. In short, we thought he was lying.
Whereas the Defendant stated the cleaning woman said she didn’t care whether the dogs were loose on the cleaning day, the cleaning woman (Plaintiff) was adamant that she requested he confine the dogs to an outdoor kennel, a crate, or a room. Yet, that’s “he said-she said.” And the Defendant was well known and respected within the rural community- a community where his extended family has deep roots.
Thus, we had gruesome photographs saliently depicting the dogs’ aggressiveness. We also had the word of the cleaning woman stating she requested the Defendant confine the dogs. At this point of discovery, the preceding was our most potent arsenal to counterbalance the Defendant’s claims there was no evidence the dogs were ever previously aggressive and the Defendant’s claim the cleaning woman never requested he confine the dogs- and perhaps the Defendant’s status as an honest, locally revered person.
The photographs of the cleaning woman’s wounds were certainly compelling. Yet, we wanted more before going to trial.
Serendipitously, the Defendant’s brazenness gave us more. In his deposition responses, the Defendant claimed that numerous family members of all ages participated in frequent pool parties where the dogs congregated with guests. Similarly, he stated peer group friends of his teenage daughter attended parties where the dogs milled about. Furthermore, he boasted that while the dogs were loose, these people often came on the property to use the pool without homeowner accompaniment. Therefore, he not only had no notice of the dog’s aggression, he had ample evidence of their sociability, both with and without owner supervision.
However, when asked to provide names he balked. It was almost like he was adhering to the principles of omerta.
Subsequently, we addressed our incredulity by designing a second set of interrogatories, in which we demanded the Defendant produce names, contact information, photographs, videos, and social media posts verifying the parties occurred. We received better than we intended. The Defendant basically said, “You got me.” In his interrogatory responses he admitted there weren’t any parties.
Our position improved tremendously. Although there still wasn’t evidence of prior aggression, there wasn’t evidence of the dogs acting friendly amidst unescorted guests. Moreover, the Defendant now was impeachable, whereby we thought we had a much higher probability of winning the “he said-she said” debate. Furthermore, in his depositions, the Defendant admitted he never professionally trained his dogs; never walked them off the property; and kept them exclusively outdoors, other than for very rare times during the winter or when one dog suffered a broken leg.
Subsequently, the CPT expert produced a detailed report focusing on:
- conflicting testimony and the impeachability of the Defendant;
- statistical data confirming a relationship between low socialization and canine aggression;
- statistical data confirming a relationship between dogs kept exclusively outdoors and a higher probability of aggression;
- statistical data confirming the relationship between owner-dog attachment style and canine aggression;
- statistical data confirming a relationship between a lack of training and canine aggression;
- epidemiological and hospital data confirming the disproportionate number of lethal and severe dog-human bites inflicted by the Pit Bull breed;
- epidemiological data confirming the preponderance of dog-child bites;
- an analysis of the bites inflicted by the Defendant’s dogs, which demonstrated significant physical depth, force, and pressure and high emotional arousal;
- the athletic differential between a human, especially a juvenile human, and an adult dog, including data on nerve conduction velocity;
- the probable rationale for the dog’s aggression- territoriality and anxiety, arising from lack of socialization and lack of preparation for accepting unfamiliar or semi-familiar persons on the property without owner supervision;
- the importance of information known only to the Defendant/dog owner, whereby the Plaintiff did not have equivalent knowledge and thereby did not assume a known risk;
- the actions and inactions of the Defendant, who either consciously or unknowingly ignored ample information present in the public domain regarding dog ownership in general and Pit Bull ownership specifically, whereby his actions and inactions not only failed to mitigate risk to the Plaintiff, but unnecessarily exposed the Plaintiff to unacceptable risk of harm; and
- the negligent violation of a duty of care the Defendant owed to an invitee upon his property, where something as simple as confining the dogs could have prevented risk exposure and injury to the Plaintiff.
Moreover, to minimize Defense rebuttal, the report was heavily researched, with over 80 footnotes to published peer reviewed studies and other supporting documents.
Plaintiff counsel elected to present the Defense with the report during a mediation session. Subsequently, the Defense tripled their offer, which was hesitantly accepted by the Plaintiff, as the cleaning woman wanted to figuratively “clean house” in court. Yet, she also realized the risk of a trial, especially in a contributory negligence state- and in a county where the Defendant and his family are well known.
This case provides an outstanding example of how an effective attorney-expert team can collaboratively strengthen a case. The attorney has stated that without his CPT expert he would not have acquired all the ammunition required to prod the intransigent insurance company into an equitable settlement.
North Carolina civil dog bite statute (67-4.4)