WEINSTEIN v. HOLMES Et Al.

SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, 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
January 31, 2018
In the Court of Appeals of Georgia
A17A1526. WEINSTEIN v. HOLMES et al.
MILLER, Presiding Judge.
This case involves the availability of punitive damages for negligence after
Laurie Weinstein was injured by dogs owned by Courtney and David Holmes when
those dogs allegedly attacked Teddy, a Yorkshire Terrier, Weinstein was walking.1
The Holmeses moved for partial summary judgment on the issue of punitive damages,
arguing that there was no evidence that they had knowledge of the risk of an attack
because there were no prior instances that would have put them on notice. The trial
court granted the motion for partial summary judgment, finding that a single prior
incident was insufficient to establish an entire want of care or conscious indifference
1
The appeal in the companion case between Teddy’s owners and the Holmeses
has been withdrawn.
to the consequences. This appeal followed, and we now reverse the trial court’s order
on the motion for partial summary judgment because we find that there was sufficient
evidence for the issue of punitive damages to go to a jury.
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). A de novo standard of review applies to an appeal from
a grant of summary judgment, and we view the evidence, and all
reasonable conclusions and inferences drawn from it, in the light most
favorable to the nonmovant.
(Citations omitted.) Custer v. Coward, 293 Ga. App. 316, 317 (667 SE2d 135)
(2008).
So viewed, the evidence shows that, on May 9, 2013, Weinstein walked her son
and daughter-in-law’s Yorkshire Terrier, Teddy, to their neighborhood dog park. At
the time, Teddy was about eleven years old and weighed slightly over five pounds.
As they approached the dog park, Weinstein noticed Courtney Holmes with her two
larger dogs – a 75 pound Rhodesian Ridgeback named Lacy and a 40 pound
beagle/lab mix named Callie – already within the gated area of the park. Weinstein
asked Holmes if she and her dogs would be leaving soon, and Holmes shrugged her
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shoulders. A few moments later, Holmes put leashes on her dogs and, as she opened
the gate to the park, the dogs charged out.
Weinstein was standing a “good distance” away from the gate because she did
not want to be near the dogs as they came out. As the two dogs charged out of the
park, Holmes had trouble holding on to them and she lost her grasp on Lacy’s leash.
Weinstein tried to pick Teddy up as the three dogs were running around, but either
the larger dogs knocked her down or she became tangled in their leashes and fell.
When she stood, she noticed bruises and a paw mark on her arm, and that Teddy’s eye
was bleeding.
Weinstein asked a neighbor to call 911 and then went to find her son. By that
time, the “damage was already done,” and Teddy was “half gone.” An animal control
officer came to the scene, pronounced Teddy dead, and gave Holmes two citations,
one for having a dog off leash and another for dog biting dog.2 Although the animal
control officer had already pronounced Teddy dead, the Weinsteins took Teddy to the
vet that evening, and the veterinarian noted that Teddy had a broken neck, puncture
wounds on his face, and had been bleeding from his left eye, mouth, and nose.
2
Holmes paid the off-leash citation. The other citation was dismissed.
3
Weinstein submitted evidence that another neighbor had been involved in a
prior incident with Holmes’s dogs. On that day, Holmes lost control of her dogs and
they charged aggressively at a woman walking her dog and also started to attack that
dog. The neighbor restrained Holmes’s dogs, and he believed that they would have
injured the other dog had he not intervened. The neighbor’s wife stated that she
avoided Holmes when she saw Holmes walking the dogs because she did not think
Holmes could control the dogs, as they often pulled Holmes as Holmes held the
leashes.
Holmes denied that her dogs injured Teddy and testified that Weinstein fell on
Teddy when she got tangled in the leashes as the dogs chased each other. Holmes
further denied any previous incidents with either dog and stated that she never had
trouble controlling her dogs when she walked them. Additionally, Holmes stated that
“unless [Lacy] saw a dog that she wanted to play with, [Lacy] was usually very calm
and not aggressive.” She admitted, however, that she knew her dogs liked to play with
other dogs and that, on the day Teddy died, her dogs had not had the opportunity to
get their energy out before Weinstein asked them to leave the park. She
acknowledged that, during the incident, Callie was pulling her, and she was unable
to control Lacy.
4
The trial court granted summary judgment to Holmes on the issue of punitive
damages, finding that the single other incident was insufficient to establish that the
Holmeses acted with an entire want of care or conscious indifference to the
consequences of their actions. The trial court noted that the previous incident had not
resulted in an injury, and thus the Holmeses had no knowledge of the risk to
Weinstein.
In her sole enumeration of error, Weinstein argues that the trial court erred in
granting summary judgment on the issue of punitive damages because the conflicting
evidence in the record warranted jury consideration. We agree.
It is well-settled that
a dog owner is 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. A plaintiff must show that the dog had
the propensity to do the act and that the owner had knowledge of that
propensity. Although this traditionally has been described as Georgia’s
“first bite rule,” the rule does not literally require a first bite. Instead, the
true test of liability is the owner’s superior knowledge of [her] dog’s
temperament.
(Citations, punctuation, and footnotes omitted.) Raith v. Blanchard, 271 Ga. App.
723, 724 (1) (611 SE2d 75) (2005).
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To obtain punitive damages in such cases, however, the plaintiff must show “by
clear and convincing evidence that the defendant’s actions showed willful
misconduct, malice, fraud, wantonness, oppression, or that entire want of care which
would raise the presumption of conscious indifference to consequences.” OCGA
§ 51-12-5.1 (b). “Whether the tort was sufficiently aggravating to authorize punitive
damages is generally a jury question.” (Citation omitted.) Weller v. Blake, 315 Ga.
App. 214, 219-220 (3) (a) (726 SE2d 698) (2012).
The issue, therefore, is whether Holmes had knowledge of her dogs’ propensity
to charge uncontrollably and aggressively towards other dogs and people. Further, to
permit the issue of punitive damages to reach the jury, we need only conclude that
there is a genuine issue of fact as to whether Holmes’s actions showed “willful
misconduct, malice, fraud, wantonness, oppression, or that entire want of care which
would raise the presumption of conscious indifference to consequences.” Powell v.
Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991).
“[T]o infer 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.”
(Citation and punctuation omitted.) Steagald v. Eason, 300 Ga. 717, 720 (797 SE2d
838) (2017). Nevertheless, Weinstein need not show that Holmes was aware of an
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identical incident, “as long as there is an incident or incidents which would put a
prudent [woman] on notice to anticipate the event which occurred.” (Citation and
punctuation omitted.) Torrance v. Brennan, 209 Ga. App. 65, 67-68 (2) (432 SE2d
658) (1993). In other words, the prior incident need not be identical as long as it puts
the owner on notice of the risk of an actual attack. Steagald, supra, 300 Ga. at 721.
Thus, “when the evidence shows that an owner or keeper knows of such an attempted
[attack] . . . it may well be sufficient to establish knowledge of a propensity to
[attack].” (Citation omitted.) Id.Here, the evidence shows that Holmes was walking two dogs that collectively
weighed almost as much as she did, and on the day of the attack, she lost control of
Lacy’s leash. Holmes admitted that she did not want her dogs to interact with Teddy,
and that the dogs still had a lot of energy as they left the gated area of the park. And
despite Holmes’s testimony that she was able to control the dogs when she walked
them, there was evidence from Holmes’s neighbors that there had been a prior
instance in which Holmes lost control of her dogs, which allowed the dogs to act
aggressively and attack another dog. That neighbor further testified that he believed
that it was only his intervention that prevented an injury on that occasion. Moreover,
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Holmes admitted that Lacy was not usually aggressive “unless [Lacy] saw a dog that
she wanted to play with.”
We must construe the facts in the light most favorable to Weinstein, as the non-
movant, and these conflicts in the evidence create a jury question about Holmes’s
knowledge of the risk her dogs posed to Weinstein. See Osowski v. Smith, 262 Ga.
App. 538, 540 (1) (586 SE2d 71) (2003); Service Merchandise, Inc. v. Jackson, 221
Ga. App. 897, 898 (1) (473 SE2d 209) (1996) (“It is the jury, not the court, which is
the factfinding body. It weighs the contradictory evidence and inferences, judges the
credibility of witnesses, receives expert instructions, and draws the ultimate
conclusion as to the facts.”). Contrary to the trial court’s finding, the fact that the
prior incident did not cause an actual injury is not dispositive. Rather, all that is
required is that the prior incident put the owners on notice that an attack could occur.
Steagald, supra, 300 Ga. at 721. The evidence here satisfied this requirement.
Holmes’s knowledge of the risk is not the end of the inquiry, however. The jury
is also tasked with determining whether the actions Holmes took on the day of the
incident showed the requisite want of care or conscious indifference to the
consequences that would warrant punitive damages. Weller, supra, 315 Ga. App. at
219 (3) (a).
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We have not often addressed the availability of punitive damages in aggressive
dog cases. In Parsons v. Ponder, 161 Ga. App. 723 (288 SE2d 751) (1982), this Court
concluded that the issue of punitive damages was for the jury to decide where there
was more than one prior incident, the neighbors testified to a prior attack, and the
owner had been asked to keep the dog locked up. 161 Ga. App. at 724 (2).
Here, there was evidence that Holmes weighed little more than the combined
weight of her dogs, on at least one other occasion she had lost control of both dogs
and that on the prior occasion a neighbor had to intervene to prevent injury to another
person. Additionally, Holmes knew that Lacy still had a lot of energy when they left
the dog park and she testified that Lacy was “usually calm and not aggressive”
“unless [Lacy] saw a dog that she wanted to play with.” Nevertheless, Holmes
attempted to leave the dog park with both dogs while Teddy was present. On these
facts, it is for the jury to determine whether Holmes acted with “that entire want of
care which would raise the presumption of conscious indifference to consequences.”3
OCGA § 51-12-5.1 (b). Compare Powell, supra, 198 Ga. App. at 466 (summary
3
We express no opinion as to what steps Holmes could – or should – have
taken. Nor do we imply that punitive damages should be awarded in this case. That
determination is solely within the province of the jury after weighing the evidence
and considering the credibility of the witnesses.
9
judgment on punitive damages issue warranted where there was evidence that the
owners took appropriate precautions to keep the dog contained and to keep the dog
separated when a non-family member came to the house, and the evidence showed
that the injury resulted when the owners were unaware a non-family member was in
the house).
The trial court relied on two cases to conclude that the Holmes’s were entitled
to summary judgment on the issue of punitive damages, but neither case supports the
trial court’s conclusion. In the first case, Barking Hound Village v. Monyak, 299 Ga.
144 (787 SE2d 191) (2016), the parties had not appealed from the order denying
summary judgment on punitive damages and the Supreme Court of Georgia expressly
did not address that issue. 299 Ga. at 146 n. 3; Barking Hound Village v. Monyak, 339
Ga. App. 685, 686 n. 3 (794 SE2d 664) (2016).
Second, the trial court distinguished Parsons, supra, 161 Ga. App. at 724 (2),
however, we do not find Parsons distinguishable from the present case. Indeed,
Parsons requires the opposite conclusion from the trial court’s finding. Holmes’s own
testimony of her knowledge that Lacy was full of energy and liked to play with other
dogs, coupled with the neighbors’ affidavits reflecting a prior similar instance of
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aggressive behavior that could have resulted in an injury creates a question for the
jury as to punitive damages under Parsons.
Accordingly, the trial court erred in granting summary judgment to the
Holmeses on the issue of punitive damages. We therefore reverse the trial court’s
order and remand the case for further proceedings.
Judgment reversed and case remanded. Doyle, P. J., and Reese, J., concur.
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