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COURT OF APPEALS RULES DOG OWNER ENTITLED TO SUMMARY JUDGMENT

Posted by Susan J. Levy

Under current Georgia law, in order for an injured person to recover in a dog bite case, they must show not only that the dog had vicious propensities, but that the owner knew or should have known of those propensities, and that the injured person had no such knowledge. “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 his dog’s temperament. (Citation and punctuation omitted.)” Custer v. Coward, 293 Ga. App. 316, 318-319 (2008). In the recent case of Brock v. Harris, 2011 Ga. App. LEXIS 986, Plaintiff’s failure to demonstrate the owner’s knowledge of prior aggression by the dog resulted in summary judgment for the Defendant dog owner.

In Brock v. Harris, Defendant Ted Brock owned and operated a lawn mower repair shop. On December 14, 2007, Brock brought his dog to the shop with him, as he frequently did. The Plaintiff, a customer of the shop, alleged that when he approached the counter, a large dog came out of the back of the store and behaved aggressively toward him. To escape, Plaintiff ran out of the store and into a trailer parked outside, fracturing his ankle. Id. at *2. Plaintiff alleged that the owner knew or should have known of the danger of keeping an unrestrained dog in the shop, however, the Plaintiff was unable to present any evidence of prior aggression by the dog.

The Defendant testified that on the day of the incident, he heard the dog’s paws click across the door toward the front, but did not hear any growling, barking, or other sounds of aggressive behavior. Moreover, and most importantly, the Defendant testified that he had owned the dog since the dog was a puppy, and that he had never before behaved aggressively or attacked anyone. Id..

The trial court denied the Defendant’s motion for summary judgment, but the Court of Appeals reversed, finding that,

pursuant to OCGA § 51-3-1, an owner or occupier of land ‘is liable in damages to [invitees] for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.’ [Plaintiff] contends that by keeping the dog on the premises, [Defendant] created an unsafe condition for invitees. Nevertheless, ‘[i]n a typical dog bite case, regardless of whether the cause of action is based on . . . [OCGA § 51-3-1] or the dangerous animal liability statute . . ., a plaintiff must produce evidence of the vicious propensity of the dog in order to show that the owner of the premises had superior knowledge of the danger.’ Moreover, ‘under Georgia law, there is a presumption that dogs are harmless,’ and a plaintiff bears the burden of showing superior knowledge on the part of the owner that the dog is not harmless.

Id. at *3-*4.

Finding that Plaintiff had failed to produce evidence of the Defendant’s superior knowledge of the dog’s propensity for aggression, the Court of Appeals reversed and granted the Defendant’s motion for summary judgment.

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