Clark v. Joiner , 242 Ga. App. 421 ( 2000 )

Andrews, Presiding Judge.

We granted Thomas and Beverly Clark’s application for interlocutory review after the trial court denied their motion for summary judgment on John Joiner’s claim for damages from a dog bite. Because there is no evidence that the dog had ever bitten anyone before or that the Clarks knew that the dog had any propensity to bite someone, we reverse.

This case arose when Joiner went to the Clarks’ house to sell them insurance. Joiner had gotten out of his car and was walking to the house when the Clarks’ two dogs ran toward him. Joiner said the dogs did not act hostile but ran at him as if they wanted to play. When he put his hand out to keep them from jumping on him, one of the dogs, Bud, a mixed-breed 12-year-old male, grabbed his hand and bit it. After Joiner got his hand loose, the dog jumped up and bit him in the side.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

OCGA § 51-2-7 provides, in pertinent part:

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.

In order to support an action for damages under this statute, it must be shown that the dog was vicious or dangerous and that the owner knew it. Rowlette v. Paul, 219 Ga. App. 597 (466 SE2d 37) (1995). The dog’s nature and the owner’s knowledge are two separate issues, and proof of both is necessary for recovery. Durham v. Mooney, 234 Ga. App. 772 (507 SE2d 877) (1998).

1. The Clarks had not violated any city or county ordinance. The county ordinance at issue here provides as follows:

Animals within the County of Camden shall be adequately confined by a fence, leash or other appropriate measure, to the premises of the owner or custodian at all times. The animal shall not be permitted to leave those premises unless leashed and accompanied by the owner or custodian, and shall not be permitted to run loose on the property of others, nor on streets, alleys, beaches, parks, picnic areas, recreation areas, and/or other public sites at any time.

“Confined” is defined in the ordinance as “[Restricted by a fence or leash to the premises of the owner or custodian at all times or merely on the property of the owner or custodian whereby the animal shall not be permitted to leave those premises unless leashed and accompanied by the owner or custodian. . . .” (Emphasis supplied.) As the dog was on the property of the owner when the bites occurred, there was no violation of any city or county ordinance.

2. There is also no evidence that the Clarks knew that the dog was vicious or dangerous. Both of the Clarks testified that Bud had never bitten anyone before, and there is no evidence in the record of a previous bite. Joiner claims, however, that the Clarks were on notice because Bud acted aggressively toward an animal control officer who had previously tried to remove a hurt, stray dog in heat from underneath the Clarks’ porch.¹ Manning, the animal control officer, testified that Bud never growled or barked at her but “just exhibited a very protective, aggressive posture.” The Clarks were not at home at the time of this incident and therefore were unaware of any problem. Clark testified at his deposition that Manning told him “that the dog didn’t act like he wanted to let her catch the old stray dog. . . .”

Georgia has traditionally adhered to the “first bite” rule in deciding whether a dog owner has knowledge that his dog has the propensity to bite someone. Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998). There have, however, been some recent cases which look at whether the owner had “prior knowledge of his dogs’ tendency to attack humans” and “superior knowledge of his dog’s temperament.” Supan v. Griffin, 238 Ga. App. 404, 406 (519 SE2d 22) (1999).

Here, Joiner has introduced no evidence that this dog had ever bitten anyone before and also has introduced no evidence that the dog had a tendency to attack humans or that the Clarks had any knowledge aboiit the dog’s temperament that would have put them on notice that the dog would bite someone. The evidence in the record, as described above, shows nothing that would put the Clarks on notice of their dog’s vicious propensity. Therefore, the trial court erred in denying the Clarks’ motion for summary judgment on Joiner’s claim.

Judgment reversed.

Ellington, J., concurs. Ruffin, J., concurs specially.

1 The dog with Bud at the time he bit Joiner was a female that was in heat at the time.