Myers v. Ogden. ( 2017 )

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J. and SELF, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 3, 2017
In the Court of Appeals of Georgia
A17A1779. MYERS v. OGDEN.
SELF, Judge.
After he was bitten on the hand by a dog, John Ogden filed suit against the
dog’s owner, Katie Myers. Ogden filed a motion for partial summary judgment on the
issue of negligence per se, which the trial court granted. Finding that an issue of fact
exists as to whether the dog was carelessly managed under OCGA § 51-2-7 at the
time of the incident, we reverse the order of the trial court.
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). On appeal from a grant or
denial of summary judgment, we conduct a de novo review “and we view the
evidence, and all reasonable conclusions and inferences drawn from it, in the light
most favorable to the nonmovant.” (Citation omitted.) Matta-Troncoso v. Tyner, __
Ga. App. __, 2017 Ga. App. LEXIS 449, at *7, n. 1 (__ SE2d __) (Case No.
A17A0734, decided Oct. 4, 2017). So viewed, the record shows that Myers was
walking her 80-pound dog in Piedmont Park on the morning of June 25, 2015. Myers
is six feet tall and weighs 165 pounds, and was walking the dog on a two-foot long
leash attached to a standard nylon collar. At the same time, Ogden was supervising
the unloading of audio equipment from a truck for a concert in the park. As Myers
and the dog walked beside the truck towards the front of the cab where Ogden was
standing, the dog lunged forward and bit Ogden on the hand. Myers did not see
Ogden until the bite occurred.
Myers deposed that she was able to pull the dog back from Ogden after the bite
occurred, but was not able to restrain him from biting Ogden in the split second the
dog lunged; that she is physically capable of restraining the dog; and that the dog
reacted in an instinctual and protective manner when he saw Ogden, which was not
a behavior the dog had ever displayed before. Following the incident, a City of
Atlanta police officer issued an arrest citation to Myers for violation of a city
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ordinance by “hav[ing] dog on a leash[;] however the dog was able to bite victim on
his left hand.”
Ogden filed a motion for partial summary judgment on the issue of negligence
per se, claiming that Myers violated a county ordinance (Fulton County Code Section
34-205).1 The trial court granted the motion “as to the limited issues of duty and
breach of duty under [the Fulton County Code Section.]” Myers appeals, arguing that
an issue of material fact exists as to whether the dog was under the control of a
competent person at the time of the incident. Ogden contends that the trial court’s
ruling was correct because Myers admitted that she violated the county ordinance by
failing to keep her dog under control and that “if [Myers] had competently controlled
her dog, [the] dog would not have been able to bite [Ogden].”
OCGA § 51-2-7 provides that,
[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
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Ogden also argued that Myers violated “Atlanta City Ordinance Sec. 110-70
(c)” by walking her dog in a restricted area of the park. The trial court rejected this
ground, finding no evidence that “[Ogden] was within the class of persons to be
protected under [the] ordinance or that a dog bite was within the harms to be
protected against.”
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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.
Pursuant to this Code section, “a plaintiff must show that (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.” (Citation, punctuation, and footnote
omitted.) Matta-Troncoso, supra, at *7. The county ordinance at issue in this case
provides as follows:
It shall be unlawful for the owner, custodian or harborer of any dog to
allow or permit such dog to leave the premises of the owner or other
person having custody of the dog unless such dog is securely under
leash; said leash being not more than six-feet long, and under the control
of a competent person.
Fulton County Code § 34-205.
Ogden contends that Myers admitted to violating the county ordinance by
failing to keep her dog under control and that “if [Myers] had competently controlled
her dog, [the] dog would not have been able to bite [Ogden].” In its order granting
partial summary judgment, the trial court found “that there has been a violation of the
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ordinance because the dog was not under the control of the Defendant at the moment
when he lunged toward [Ogden].” (Emphasis in original.) Accepting this reasoning,
however, effectively means that every plaintiff in a dog bite case would prevail on the
issue of duty and breach of duty. In a similar case, Askew v. Rogers, 326 Ga. App. 24(755 SE2d 836) (2014) (physical precedent only), the defendants’ dog escaped from
his cage in the backyard, ran after the plaintiff who was on an evening walk, jumped
on her and growled, and then nipped the plaintiff on her thigh. Id. at 25. One of the
defendants opined that she may have forgotten to lock the dog’s cage. The trial court
granted summary judgment to the plaintiff, finding that the defendant’s speculative
statement about failing to lock the cage showed that “she was careless in her
management of the dog as a matter of law.” Id. at 26 (1). We reversed, finding that
“even assuming that the dog was a vicious animal due to the violation of the
[Tifton/Tift County] Leash Law, . . . a genuine issue of material fact remains as to
whether either of the [defendants] were careless in their management of the dog at the
time of the incident.” Id.
In this case, Ogden has not established as a matter of undisputed fact that the
dog bit him because of Myers’ careless management. On the contrary, evidence that
the dog was on a two-foot leash shows that Myers was in full compliance with the
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ordinance’s leash requirement. Moreover, given Myers’ size, her testimony that she
is physically capable of restraining the dog, and the absence of any evidence that the
dog had a history or propensity for vicious behavior, it is for a jury to decide whether
Myers carelessly managed the dog at the time it bit Ogden. See Cowan v. Carillo, 331
Ga. App. 387 (771 SE2d 86) (2015) (trial court erred in removing from the jury’s
consideration question of whether defendants carelessly managed dog that attacked
plaintiffs’ children). Accordingly, we find that the trial court erred in granting partial
summary judgment to Ogden.
Judgment reversed. Dillard, C. J., and Ray, P. J., concur.
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