*1 JJ., concur. Ness, Harwell, Chandler, Gregory, A.J., separate opinion. concurs (concurring): Justice Gregory, concur; however, majority ques- to reach failed damages, any, if tion of that are recoverable on remand. Mungo’s liability Recovery, is determined the contract. any, taps pursuant is limited to the to be installed timely request. recovery Southmark’s To allow additional in Mungo becoming would result insurer an of Southmark’s development. contemplated by now-defunct This was not contract. By HOSSENLOPP, Litem, his Guardian ad Through
Eric John John HOSSENLOPP, Respondent, CANNON, Jr., Yong v. William J. H. Cannon, Appellants.
(329 (2d) 438) S. E. Supreme Court *2 John W. Thomas, Windham, Dial, Thomas of Daniel & Columbia, appellants. for Merritt, Jr., Rothwell, Ellis of Law Donald Offices of
Columbia, respondent. Submitted Jan. 1985. April 26,
Decided 1985. Chief Justice:
Littlejohn, Plaintiff-respondent, four-year Hossenlopp, Eric John child, bring old injuries action to recover for sustained Cannon, when the of defendant-appellants, William J. Yong Cannon, Jr. and H. causing personal him sutures, puncture of nineteen requiring wounds sur- gery hospitalization. alleging and negli- It is tort action gence part 1) keeping dangerous on the of the owners in dangerous animal propensities; 2) with it had allowing large law; to run statutory at violation of 3) failing depositions restrain the animal. Based on affidavits, judge granted the trial liability,, leaving favor of the child as to the assessment of by jury for trial in the usual fashion. The appealed contending owners genuine have that is a there they issue of fact as to whether had notice of the propensity people. of their agree bite We with the judge trial affirm. showing judge made young to the trial revealed boy were,
Hossenlopp young and another on the afternoon of injuries, babysitter. his They at home of a playing were babysitter’s watching dogs outside the residence own her dog charged which were fenced in. The Cannons’ toward them; attack, boys to avoid both tried to climb over the *3 plaintiff fence. The herein failed and his efforts was dog dragged by him leg the which the ankle causing inspired which this action. Court, appropriate Rule 44 of
Under the Circuit it is grant spec to on or all issues on genuine if there no fact ified issues issue of to be The determined. conventional law in this state forth in cases is heretofore set several as follows: ... rule in this that domestic animals are It is the State dangerous persons, to presumed not to be owner, against recovery damages may had of be prove particular injured party must that the animals dangerous, nature, or vicious and that his was of a known, dangerous propensity either should have was or negligence imposes to the owner. been known keeping dangerous liability upon the owner is of a tendencies, dangerous of its or animal with persons injuring to it from ... the failure restrain Russell, 513, 180 (2d) (1971). Giles v. 225 S. Ct. S. Also 201 Brown, 512, (1978) McQuaig (2d) see 242 E. 688 v. S. C. S. Conoley Riel, (1983). E. (2d) v. 279 S. C. 309 S. dog argument There is serious but that no proximately Cannons caused substantial to seriously argued child. Nor can it be that the Cannons were negligent. not Section 47-3-50of the South Carolina Code (1976) provides Laws as follows: any county adopting penalty It shall be unlawful provisions pursuant provisions of this article for keeper dog owner or other to:
(a) large property run allow his to at off of
owned, by him; rented or controlled statutory provision, Pursuant above Section 11-6004, Code, County and, of the Richland was enacted pertinent provisions its read as follows: (a) any dog It shall unlawful for owner or other
keeper of a to: (1) large allow his to run at off of
owned, him; rented or controlled
[*] [*] [*] 47-7-110, Further, Laws, Section South Carolina Code of (1976), provides as amended as follows: manager It shall be unlawful for owner or any any description willfully domestic animal of or negligently permit any such animal to run at large beyond the limits of his own lands or the leased, occupied or controlled him. lands The sole contention of the Cannons is that there is a knowledge of the contested issue as to their fact that their dog had, occasions, on harmed others or had dan- *4 gerous propensities. The affidavit of Mr. and Mrs. Porter big avers previous goldish-brown that on “... the a occasion dog deponents of the Cannons’, which the are informed and did, fact, believe Hossenlopp in attacked Eric John bite and substantially grandson, of their the buttocks John bruise Mark deponents Porter on property the of the and in the carport however, deponents.” is, of the There no averment that this was within of the the Cannons. deposition Cannon,
The of William J. Jr. admits that he was aware of the fact that on a occasion six-year boy this a leaving old what he a small right describes as little mark here scratch on immediately the inside of his arm. I took my the child into bathroom, I Q-tip, attempted took a some alcohol and to — just dry clean was attempted it a small amount of blood. I enough to clean There not pink it. was to the Q- blood even tip.” Mr. Cannon averred that he unable the keep was to in the fence because she was able to climb the fence even put after he an truly extension on it. When he wanted to dog, kept restrain the he her on a chain. We think that his own guilty admission is to knowledge. sufficient establish opinion,
We are of the under our established rule of law, correctly judge granted that the trial In addition, on the issue. this Court 4, may § under any ground Rule affirm the court trial on in appearing McQuaig the In in record. the case of v. Brown, supra, the court bench alerted the to the bar dog-bite fact antiquated. that the law this was state See McQuaig. dissent in origin. may law of common law It
changed by law common mandate. The time has come give way commonly when our rule must to the more accepted by rule of law indicated other states case both law and statute. child, case, injured
When as in this has been the another, damages, of burden medical ex penses, hospital, paid etc. must be either owner parents of the or the of the It child. is common knowl edge dogs tendency that have a to bite. The owners know respond in damages this and should be' made when dogs they keep regardless do whether others bite, injury is a result of first the second or other state; paradoxical bite. In we have situation that (1976) § Code of of South gives 15-75-30 Laws Carolina to an injured party right damages parents to collect from age where minor child an unmarried under of seventeen years property another; does to the that but another, parents’ dog damage same does money may not be unless it be shown he had collected In bitten or was to be of nature. known a mischievous cases, party culpable responsible tort should be for not only the second delict first. but *5 by way has dealt with this matter statute.
California jury in of that statute has come a instruction found Out — Jury (1950 Supp.). ap- Instructions Civil We California prove. follows: It reads as any owner of provides that the of California The law in person is on or a person while such dog which bites a private place, in lawfully on or a public place or is dog, is property of the owner of such liable including the may person suffered as for such dog previously regardless whether or not bitten vicious, or regardless of the owner’s had been viciousness, any and re- knowledge of such lack of negligent has been gardless or not the owner of whether however, person provided, respect dog, to the upon voluntarily invites attack himself knowingly and dog owner, if, [herself], or when on voluntarily, knowingly, and without reasonable person danger, necessity, exposes himself {herself] consequences ... liable for the owner is not We think the rule is sound. It is short of the California dogs. the trial rule of strict We sustain court on ground. All cases heretofore decided this additional expressed the view herein Court inconsistent with are hereby Many overruled. of these cases are cited the South seq. Digest, § Carolina Animals et Affirmed. JJ.,
Ness concur. Chandler, Gregory JJ., sepa- concur and dissent Harwell, opinions. rate Justice:
Harwell, holding dog-owner I concur in the result of liable dog-bite However, under conventional law of this State. disagree majority’s dog- imposition with the of California bite law decision of this Court. I believe our traditional law, requiring dog-owner to know or have reason dog’s dangerous propensity being to know of held liable, sound. This the law in rule should remain South Assembly Carolina until the General sees fit to liberalize it. Gregory, Justice: *6 concur the result majority. reached There is
ample supporting evidence finding under exist- ing However, South Carolina law. I dissent as insofar majority adopts holding the California rule. Such as an sustaining ground clearly gratuitous. is This case .additional not the proper vehicle far-reaching change for such a the law. STATE, Respondent, KELLY, Appellant. v. Ardis Baker
(329 442) (2d) E.S. Supreme Court Gaines, Wade, Columbia, Kenneth of Gaines & appellant.