S&S Towing & Recovery, Ltd. v. Charnota

• Citation: 844 S.E.2d 730,309 Ga. 117
• Decision Date: 16 June 2020
• Docket Number: S20A0161
• Parties: S&S TOWING & RECOVERY, LTD. et al. v. CHARNOTA.
• Court: Supreme Court of Georgia

309 Ga. 117

844 S.E.2d 730

S&S TOWING & RECOVERY, LTD. et al.

v.CHARNOTA.

S20A0161

Supreme Court of Georgia.

Decided: June 16, 2020

Mason Bradley Rountree, Rountree Law Firm, 27 Courthouse Square, Dallas, Georgia 30132, Attorneys for the Appellant.

Jack Edward Clay, Jack Clay Law Firm, LLC, Robert Wesley Starrett, Starrett Law, LLC, 25 Atlanta Street, Suite B, Marietta, Georgia 30060, Attorneys for the Appellee.

McMillian, Justice.

We granted an interlocutory appeal in this "dog bite" case and expressed particular concern about whether the second sentence of OCGA § 51-2-7, which provides that an animal running at large in violation of a local "leash law" is considered a "vicious" animal, violates procedural due process. For the reasons set forth below, we conclude that it does not and remand this case for further proceedings.

The underlying facts show that on November 7, 2015, Michael Charnota was walking his dog "Katie," who was leashed, in front of his residence in Paulding County when a dog later identified as "Tucker" attacked and killed Katie. When Charnota carried Katie into his home, Tucker followed and attacked Charnota, seriously injuring him.¹ Prior to the attack, Tucker had been kept on the premises of S&S Towing & Recovery, Ltd., which is located approximately 1,000 feet from Charnota's residence and owned by Timothy and Paula Seals. On the day of the attack, Tucker had apparently escaped from the S&S Towing lot and was not on a leash or under the control of a person as required by the Paulding County Code.²

Charnota filed a complaint for damages against the Sealses, individually, and S&S Towing (collectively "S&S Towing"). Charnota asserted several causes of action, including a claim for liability under OCGA § 51-2-7, which provides in pertinent part as follows:

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.

(Emphasis supplied.)

S&S Towing filed a motion in limine seeking to, among other things, prohibit Charnota from using, referencing, or relying on the evidentiary presumption of viciousness created by OCGA § 51-2-7 on the ground that the statute is facially invalid under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Finding the evidentiary presumption of vicious propensity to be constitutional, the trial court rejected this facial challenge, but also issued a certificate of immediate review. S&S Towing filed an application for interlocutory appeal to the Court of Appeals, but the case was transferred to this Court because it invoked our jurisdiction over constitutional questions. We then granted S&S Towing's application and issued a question asking whether the second sentence of OCGA § 51-2-7 violates procedural due process.

On appeal, S&S Towing maintains that the trial court erred in upholding the constitutionality of OCGA § 51-2-7 because it creates an irrebuttable statutory presumption that an owner of a dog is aware of the dog's vicious propensity. According to S&S Towing, this presumption violates the procedural due process protections afforded under the Fourteenth Amendment because the presumption does not allow an opportunity to present rebuttal evidence that the animal had never before bitten anyone or otherwise exhibited a dangerous or vicious propensity. We disagree that the statute violates the Fourteenth Amendment.

1. Our analysis begins with the recognition that "[w]e presume that statutes are constitutional, and before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality." Ga. Dept. of Human Svcs. v. Steiner , 303 Ga. 890, 894-95 (II), 815 S.E.2d 883 (2018) (citation and punctuation omitted). In addition, "we have a duty to construe a statute in a manner which upholds it as constitutional, if that is possible." Cobb County School Dist. v. Barker , 271 Ga. 35, 37 (1), 518 S.E.2d 126 (1999) (citation omitted). Thus, "[i]f a statute is susceptible of more than one meaning, one of which is constitutional and the other not, we interpret the statute as being consistent with the Constitution." Id. "Because all presumptions are in favor of the constitutionality of a statute, the burden is on the party claiming that the law is unconstitutional to prove it." Steiner , 303 Ga. at 894-95 (II), 815 S.E.2d 883.

With these principles in mind, we turn to S&S Towing's argument that OCGA § 51-2-7 contravenes its Fourteenth Amendment right to procedural due process in defending against Charnota's negligence claim. The Fourteenth Amendment prohibits government deprivation of "life, liberty, or property, without due process of law."

U.S. Const. amend. XIV, § 1.³ See also Gregory v. Sexual Offender Registration Review Bd. , 298 Ga. 675, 685 (2), 784 S.E.2d 392 (2016) ("[P]rocedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fourteenth Amendment." (citation and punctuation omitted)). These principles "extend to every proceeding[, whether] judicial or administrative or executive in its nature[,] at which a party may be deprived of life, liberty, or property." Barker , 271 Ga. at 37 (2), 518 S.E.2d 126 (citation and punctuation omitted). The Due Process Clause does not guarantee a particular form or method of procedure. See Coppedge v. Coppedge , 298 Ga. 494, 500 (4), 783 S.E.2d 94 (2016) ("the requirements of due process are flexible and call for such procedural protections as the particular situation demands") (citation and punctuation omitted). Instead, due process "is satisfied if a party has reasonable notice and opportunity to be heard, and to present its claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it." Barker , 271 Ga. at 37 (2), 518 S.E.2d 126 (citation and punctuation omitted).

In a civil tort case between private parties,⁴ a presumption that "authorizes a fact-finder to find the existence of a fact from proof of one or more other facts is not invalid per se." Barker , 271 Ga. at 37 (3), 518 S.E.2d 126. A rebuttable presumption that has "a rational connection between what is proved and what is to be inferred does not constitute a denial of due process." Id. at 37 (3), 518 S.E.2d 126. In contrast, "a presumption which cannot be rebutted by any amount of uncontradicted evidence or which precludes any opportunity for the production of contrary evidence is inconsistent with the principles of due process." Id. But see Flint River Mills v. Henry , 239 Ga. 347, 349-50, 236 S.E.2d 583 (1977) (distinguishing United States Supreme Court cases addressing statutory presumptions, including Vlandis v. Kline , 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) (statutory definition of "resident" for purposes of setting tuition invalid where students not granted opportunity to show factors clearly bearing on issue of residency), because each case was decided on its particular facts and holding that workers’ compensation statute's conclusive presumption that minor, unmarried step-children are the dependents of a deceased worker was constitutional).

2. Turning to the merits, S&S Towing argues that the second sentence of OCGA § 51-2-7 creates an irrebuttable statutory presumption in violation of procedural due process, so we begin our analysis by examining the structure and statutory history of OCGA § 51-2-7 to determine what effect the second sentence has on the claim and defenses under the statute. The first sentence of OCGA § 51-2-7 has existed in various forms since 1863. See Ga. Code of 1863, § 2907; Code 1868, § 2913; Code 1873, § 2964; Code 1882, § 2964; Civil Code 1895, § 3821; Civil Code 1910, § 4417; Code 1933, § 105-110; Ga. L. 1985, p. 1033, § 1. As we have explained, the statute "is but a restatement of the common law, and at common law, in order to support such actions, it was necessary to show, not only that the animal was vicious or dangerous, but also that the owner knew this fact. The scienter was the gist of the action." Harvey v. Buchanan , 121 Ga. 384, 385, 49 S.E. 281 (1904). See also Steagald v. Eason , 300 Ga. 717, 719, 797 S.E.2d 838 (2017) ("Even when it is shown that a dog is, in fact, vicious or dangerous, proof that its owner or keeper knows of the peculiar propensities that render the dog in question vicious or dangerous is an essential element of a lawsuit under OCGA § 51-2-7."); Conway v. Grant , 88 Ga. 40, 41, 13 S.E. 803 (1891) ("The ferocious character of the dogs and the knowledge of the owner are sufficiently alleged."). In 1985, the General Assembly amended the statute by adding the second sentence: "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 ... and the said animal was at the time of the occurrence not at heel or on a leash."⁵ Relying on Johnston v. Warendh , 252 Ga. App. 674, 556 S.E.2d 867 (2001), and similar cases, S&S Towing argues that the amendment is a conclusive presumption in violation of due process because it "creates liability based upon a violation of a local or county ordinance and requires no proof of scienter." Id. at 676 (1), 556 S.E.2d 867.We disagree.

Starting with the text of the statute, we observe that although neither the first nor the second sentence of OCGA § 51-2-7 speaks of the owner's...