Levy v. McKay , 149 Ga. App. 251 ( 1979 )

149 Ga. App. 251 (1979) 253 S.E.2d 812

LEVY
v.
McKAY et al.

57172.

Court of Appeals of Georgia.

Argued February 7, 1979. Decided March 8, 1979.

Robert E. Sigal, for appellant.

Dennis, Corry, Webb, Carlock & Williams, Douglas W. Smith, Thomas S. Carlock, for appellees.

QUILLIAN, Presiding Judge.

The plaintiff brought an action for injuries she sustained upon being attacked and bitten by a dog owned by the defendants. This appeal followed the trial judge's grant of a motion for summary judgment by the defendants. Held:

"[T]he two essential elements that must be proved in order to recover in a case of this nature are: (1) the animal has a vicious or dangerous character, and (2) knowledge of this propensity on the part of the owner." Wright v. Morris, 143 Ga. App. 571 (239 SE2d 225).

Here by affidavits the two defendants denied any knowledge of any vicious propensity on the part of the dog. The plaintiff attempted to counter this by an affidavit stating they had constructive knowledge that the animal was dangerous because the dog was tied to a stairwell of the apartment complex where the incident occurred. As this court held in McCree v. Burks, 129 Ga. App. 678 (200 SE2d 491) the fact that a dog is kept chained is not sufficient to show a vicious propensity to attack humans. Accord, Banks v. Adair, 148 Ga. App. 254.

The trial judge properly granted the motion for summary judgment.

Judgment affirmed. Smith and Birdsong, JJ., concur.