Under Georgia law, a dog owner’s liability for injuries caused by her dog depends on several factors.
Under Georgia law, a dog owner’s liability for injuries caused by her dog depends on several factors. Georgia’s so-called “Dog Bite Statute” provides:
A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. The foregoing sentence shall not apply to domesticated fowl including roosters with spurs. The foregoing sentence shall not apply to domesticated livestock.O.C.G.A. §51-2-7
Pursuant to the terms of this statute, a plaintiff seeking to hold a dog’s owner liable for injuries caused by the dog must show: (1) the owner carelessly managed or allowed the animal to go at liberty; (2) the animal was vicious or unrestrained at the time of the injury in violation of a local ordinance requiring such restraint, and (3) the animal caused the injury. Cowan v. Carillo, 331 Ga.App. 387 (2015).
Step One: Dangerous Propensity
An injured party seeking to hold a dog’s owner liable for injury caused by the dog must show the dog had a dangerous or vicious propensity. If a plaintiff is unable to prove the dog’s dangerous propensity, and the owner’s knowledge of same, then the defendant is entitled to summary judgment. Stolte v. Hammock, 311 Ga. App. 710 (2001).
A plaintiff can establish a dog’s dangerous propensity in one of two ways. First, if the dog was unrestrained at the time of the incident, in violation of a local ordinance requiring such restraint, the dog will be deemed to have a dangerous propensity regardless of any prior attacks or lack thereof. In other words, a plaintiff is relieved of showing the dog’s vicious propensity if the dog was running free in violation of a local leash law at the time of the injury. Fields v. Thompson, 190 Ga. App. 177 (1989). In Fields, the trial court granted summary judgment for the defendant given the uncontroverted evidence that the defendant had no knowledge of his dog’s vicious propensity. The plaintiff appealed, arguing that the defendant’s violation of a county leash law at the time of the incident relieved him proving the dog’s vicious propensity and the defendant’s knowledge of the same. The Court of Appeals agreed with the plaintiff and found the trial court erred in granting summary judgment because “[t]he clear and unambiguous language of OCGA § 51-2-7 establishes that the vicious propensity of an animal may be proved by showing that the animal was required to be ‘at heel or on a leash by an ordinance’ of the applicable governmental body and that the animal at the time of occurrence was not at heel or on a leash.” Fields, 190 Ga. App. at 177.
Where a defendant is not in violation of a county leash law at the time of the attack, a plaintiff must prove that the owner had knowledge of the dog’s propensity to commit the act that caused the injury. The dog’s nature and the owner’s knowledge are two separate issues, and proof of both is necessary for recovery. Harper v. Robinson, 263 Ga. App. 727 (2003). To infer the owner had the requisite knowledge, there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury. Durham v. Mooney, 234 Ga. App. 772 (1998).
Although Georgia generally adheres to a “first bite” rule in deciding whether a dog owner has knowledge of her dog’s propensity to bite someone, the rule does not literally require a first bite. Phiel v. Boston, 262 Ga. App. 814 (2003). Phiel held that “under [the first bite rule], a dog owner will be liable for damages only if the owner has knowledge that the dog has the propensity to do the particular act which caused injury to the complaining party.” Phiel, 262 Ga. App. at 816.
Therefore, to establish a dog’s dangerous propensity, the prior conduct must be sufficiently similar to the conduct that caused the plaintiff’s injuries. For example, a dog’s prior attack on an animal was not sufficient to put its owner on notice of its propensity to bite a person. Kringle v. Elliot, 301 Ga. App. 1 (2009). Moreover, Georgia courts have found that a dog’s prior aggressive or menacing behavior alone is not sufficient to place its owner on notice of a propensity to bite. Wade v. American Nat. Ins. Co., 246 Ga. App. 458 (2000); Hamilton v. Walker, 235 Ga. App. 635 (1998).
Step Two: Careless Management or Allowing the Dog to Go at Liberty
Even if a plaintiff establishes the dog’s dangerous propensity, either through violation of a county ordinance or evidence that the dog previously exhibited conduct similar to that which caused the injury, the plaintiff must still establish the owner carelessly managed or allowed the dog to roam freely. Cowan v. Carillo, 331 Ga. App. 387 (2015). In Cowan, the Court of Appeals found the trial court erred in instructing the jury that the defendants were negligent based solely on their violation of a county leash law. Although it was undisputed that the defendants were in violation of a county leash law, this violation only relieved the plaintiffs from having to show the dog’s dangerous propensity. To find the defendants negligent under O.C.G.A. §51-2-7, the plaintiffs still had to establish the defendants carelessly managed their dog, or allowed it to go at liberty. Cowan, 331 Ga. App. at 390.
The issue of an owner’s management of her dog is most likely a question for the jury. Currently, there is no Georgia case where the court granted summary judgment for a defendant based on proper management of an otherwise dangerous dog. However, several cases have discussed the issue. In Evans-Watson v. Reese, the defendant testified that her vicious dog was securely chained inside her fenced yard when she left for work. Nevertheless, the dog somehow escaped and injured the plaintiff. The court found the defendant did not conclusively establish adherence to the proper degree of care where it was not shown what the dog was chained with, how it got loose, or the nature of a third party’s actions. Evans-Watson v. Reese, 188 Ga. App. 292 (1988).
In Hackett v. Dayton Hudson Corporation the defendant’s dog was chained in an area accessible only by stepping over a 28″ high guardrail. Moreover, the area was not one where people would normally pass. However, it was unclear if the dog’s chain was secured or dragging free when plaintiff was bitten. Thus, the court found a genuine issue of material fact existed as to whether the defendant carelessly managed his dog. Hackett v. Dayton Hudson Corporation, 191 Ga. App. 442 (1989).
In analyzing potential liability under Georgia’s Dog Bite Statute, it is best to ask the following initial questions:
- Was the defendant in violation of an applicable county leash law at the time of the incident?
- If NO, the plaintiff must prove the dog’s dangerous propensity. Continue to question # 2.
- If YES, the plaintiff will be relived of proving the dog’s dangerous propensity. Jump to question # 3.
- Is there evidence that the dog previously committed an act sufficiently similar to the particular act which caused injury such that a prudent person should have anticipated the actual incident that caused the injury?
- If NO to both questions #1 and #2, then there is support for summary judgment in favor of defendant.
- If YES, continue to question # 3.
- Is there evidence that the defendant carelessly managed, or allowed her dog to go at liberty, at the time of the incident?
- This will most likely be a question for the jury.