## Facts

- Richard Ray Hill, a drywall finisher employed by Dellinger Drywall, Inc., worked on construction of Stephen and Patricia Williams’s home near Lake Norman.
- The Williamses owned “Rowdy,” a male Rottweiler weighing about 120 pounds, kept on the property with an underground electric shock fence and otherwise able to roam the lot during the workday.
- Before the incident, Hill’s employer asked whether the dog would bite; the Williamses said the dog was “friendly.” Hill testified he did not trust the dog when he first saw it.
- While Hill was assisting his supervisor with repairing a texturizing machine outside the house, Rowdy jumped up and bit off part of Hill’s right ear.
- Hill escaped with his supervisor’s help and required surgery and multiple hospitalizations; Hill and his wife sought damages, including loss of consortium.
- Plaintiffs proceeded on an ordinary negligence theory that the Williamses failed to use reasonable care to restrain the dog and protect invitees, relying in part on evidence about general Rottweiler propensities rather than prior attacks by Rowdy.
- A jury found the Williamses negligent, found Hill not contributorily negligent, and awarded damages; the trial court entered judgment for plaintiffs.
- On appeal, defendants challenged denial of discovery-related sanctions, admission of a veterinarian’s expert testimony about the breed, and denial of directed verdict/JNOV motions on negligence and contributory negligence.

## Issues

1. Whether the trial court abused its discretion by denying defendants’ requested sanctions (including exclusion) based on plaintiffs’ alleged failure to supplement interrogatory responses concerning an expert veterinarian’s anticipated testimony.
2. Whether the trial court abused its discretion by qualifying and admitting a veterinarian’s expert testimony on Rottweiler breed characteristics.
3. Whether the evidence was sufficient to submit plaintiffs’ negligence claim to the jury and to deny defendants’ motions for directed verdict and JNOV where negligence was premised on knowledge of the breed’s general propensities.
4. Whether Hill was contributorily negligent as a matter of law, requiring directed verdict or JNOV for defendants, or whether the issue was properly submitted to the jury.

## Decision

- The North Carolina Court of Appeals affirmed the judgment for plaintiffs.
- The court held the trial court did not abuse its discretion in denying defendants’ sanctions motions and in allowing a last-minute opportunity to interview/depose the expert rather than excluding testimony.
- The court held the veterinarian was properly qualified to testify about Rottweiler characteristics based on training and substantial experience treating the breed.
- The court held there was sufficient evidence for a reasonable jury to find defendants negligent based on constructive knowledge of general breed propensities and failure to reasonably control the dog around workers.
- The court held contributory negligence was not established as a matter of law and was properly decided by the jury.

## Legal Principles

- Discovery sanctions and evidentiary rulings on expert qualification are reviewed for abuse of discretion; exclusion of testimony is a severe remedy, particularly where the moving party had advance notice and failed to timely pursue discovery.
- An expert need not be the most specialized witness available; it is enough that the witness is better qualified than the average juror to give an opinion on the subject.
- In a dog-injury negligence action, an owner may be liable where the owner knew or should have known of the general propensities of the dog’s breed and failed to exercise reasonable care to control the dog and protect lawful entrants.
- Contributory negligence is ordinarily a jury issue and becomes a matter of law only when the evidence permits no other reasonable inference; employment-related conduct undertaken under supervision and in reliance on an owner’s assurances may support a finding of reasonable care by the plaintiff.

## Conclusion

The appellate court upheld the jury’s negligence verdict, permitting expert testimony on Rottweiler breed traits and recognizing that an owner’s duty of reasonable control may be established through constructive knowledge of breed propensities; it also left contributory negligence to the jury where the worker acted in the course of his job and after assurances about the dog.


Hill v. Williams, 144 N.C. App. 45, 547 S.E.2d 472 (2001)