Askew v. Rogers
| Decision Date | 06 March 2014 |
| Docket Number | No. A13A1757.,A13A1757. |
| Citation | 755 S.E.2d 836,326 Ga.App. 24 |
| Court | Georgia Court of Appeals |
| Parties | ASKEW et al. v. ROGERS. |
OPINION TEXT STARTS HERE
Chambless, Higdon, Richardson, Katz & Griggs, Joseph David Stephens, Macon, for Appellants.
Fleming, Hudson & Crosby, Joseph Shane Hudson, Tifton, Shiver Hamilton, Alan John Hamilton, Jeffrey Parker Shiver, for Appellee.
This case arises out of injuries sustained by Earnestine Rogers when she fell during an attempt to get away from a pitbull owned by Shelah and Eddie Askew. Rogers filed a motion for partial summary judgment on the issue of negligence against the Askews, which the trial court granted. Finding that an issue of material 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 and remand the case for trial.
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 the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citation omitted.) Bomia v. Ben Hill County School District, 320 Ga.App. 423, 423, 740 S.E.2d 185 (2013).
So viewed, the record shows that the Askews had a pitbull that spent most of its time in a cage located in the back of their house. After arriving home from work around 4:00 p.m., Shelah Askew let the dog out of his cage for a few minutes and then placed him back inside the cage and went into the house. Around 7:30 p.m., Rogers went on an evening walk in her neighborhood when she passed by the Askews' home. As Rogers was passing by the Askews' yard, she noticed the dog outside of his cage. Rogers was initially not afraid of the dog because she had seen him before and he had always been on a leash. Rogers then noticed the dog running toward her, and she yelled for Shelah Askew, who was coming out of her back door, to come get the dog. Rogers began to run away, but the dog caught up to her at the end of the Askew's driveway. The dog jumped up, put his two front paws on her chest, then slid down, growled at her, and nipped her on her right thigh. During this time, Shelah Askew ran toward Rogers and called the dog's name, but the dog did not obey her. Shelah Askew managed to grab hold of the dog's collar, and as Rogers was trying to get away from the scene, she fell in the Askews' driveway and injured her wrist.
Shelah Askew deposed that the dog had never before escaped from his cage and that she was not sure how he had escaped on this occasion, but that it was possible that she had forgotten to lock the cage's door. It was undisputed that the dog was not on a leash at the time of the incident.
Following the incident, an investigator with Animal Control issued a citation for violation of the Tifton/Tift County Animal Control Ordinance, which the Askews paid. The Animal Control officer further stated in her affidavit that this was not the only occasion on which the Askews' dog had been allowed to roam free, as a few months earlier the dog “ran out in the street in front of [the officer's] vehicle causing [her] to strike it.”
1. Rogers filed a motion for partial summary judgment as to the issue of negligence, which the trial court granted, claiming that the Askews violated the applicable animal control ordinance and OCGA § 51–2–7 and, thus, were negligent as a matter of law. The Askews appeal from the trial court's grant of partial summary judgment to Rogers, arguing that an issue of material fact existed regarding whether the Askews “carelessly managed” their dog. We are constrained to agree.
OCGA § 51–2–7, which governs an owner's liability for injuries caused by vicious animals, 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.
Thus, under this Code section, a plaintiff must show that (a) the owner carelessly managed or allowed the...
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Cowan v. Carillo
...caused the injury. See Hackett v. Dayton Hudson Corp., 191 Ga.App. 442, 445(2), 382 S.E.2d 180 (1989) ; see also Askew v. Rogers, 326 Ga.App. 24, 26(1), 755 S.E.2d 836 (2014) (physical precedent only). OCGA § 51–2–7 relieves a plaintiff from producing evidence of a dog's vicious propensity ......
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Myers v. Ogden, A17A1779
...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 S.E.2d 836 (2014) (physical precedent only), the defendants' dog escaped from his cage in the backyard, ran after the plaintiff who was on a......