Cowan v. Carillo

• Decision Date: 19 March 2015
• Docket Number: No. A14A2330.,A14A2330.
• Citation: 771 S.E.2d 86,331 Ga.App. 387
• Parties: COWAN et al. v. CARILLO et al.
• Court: Georgia Court of Appeals

331 Ga.App. 387

771 S.E.2d 86

COWAN et al.

v.CARILLO et al.

No. A14A2330.

Court of Appeals of Georgia.

March 19, 2015.

Cowsert & Avery, Craig C. Avery, Athens, Michael Shannon Broun II, for Appellants.

The Federal Firm, R. Keegan Federal Jr., Atlanta, R.O. Lerer, for Appellees.

Opinion

MILLER, Judge.

After their minor children E.G. and Y.G. were bitten by a pit bull, Rafaela Carillo and Ernesto Gurrola (collectively, “the Plaintiffs”) filed suit against Daniel Cowan and Sarah Arechiga, the owners of the dog.¹ The trial court granted partial summary judgment to the Plaintiffs, finding that there was no material question of fact as to whether the dog was properly restrained under OCGA § 51–2–7. A jury then returned a verdict in favor of the Plaintiffs. Cowan and Arechiga appeal, contending that the trial court erred in finding that they were negligent under OCGA § 51–2–7 and by instructing the jury that the only issue for determination was damages, because the trial court had only granted partial summary judgment to the Plaintiffs as to one element of their cause of action. Cowan and Arechiga also contend that the jury's calculation of damages was not supported by the evidence. We reverse because the trial court erred by removing the question of whether the defendants carelessly managed the dog from the jury's consideration.

Viewed in the light most favorable to the jury's verdict,² the trial evidence shows that the Plaintiffs rented Unit 2–B of an apartment duplex in Lilburn, and Cowan and Arechiga rented Unit 2–A next door. The units shared a common front yard. Shortly after moving in, the Plaintiffs discovered that Cowan and Arechiga owned a pit bull. The Plaintiffs would see the pit bull outside the apartment, sometimes unrestrained, and the dog would growl at them. One time, when the dog escaped, Arechiga had to run after it. The Plaintiffs complained to their landlords about the pit bull because they felt unsafe, and they brought their children inside when they saw the dog.

On February 27, 2011, E.G. and Y.G. were playing outside, and E.G. returned home to get a drink of water. At the time, Cowan had two guests at the apartment who had gone outside to smoke. Cowan's guests had failed to properly shut the apartment's front door, and the pit bull was able to get out of the apartment. After drinking some water, E.G. ran out of the front of his apartment, and the pit bull then attacked him. Arechiga, who had just returned home, attempted to control the pit bull and yelled for Cowan to come outside to control the dog. The pit bull took off running and subsequently bit Y.G. The children were taken to a hospital for their injuries.

After the Plaintiffs filed the instant suit, they moved for partial summary judgment on the ground that the pit bull was a vicious or dangerous animal under OCGA § 51–2–7 because it was not properly restrained as required by local county ordinances. The trial court granted the Plaintiffs' motion, finding that there was no genuine issue of material fact as to whether the pit bull was properly restrained. The trial court's order was not appealed, and the case proceeded to trial.

Following the presentation of evidence, Arechiga moved for a directed verdict, arguing that there was no evidence that she had any role in letting the dog escape the apartment. The trial court denied Arechiga's motion, concluding that there was a factual question as to whether Arechiga carelessly managed the pit bull. The trial court then instructed the jury that, as to Arechiga and Cowan, it had already decided that they were negligent because the pit bill was not properly restrained and that the jury was only to calculate the amount of damages. Arechiga and Cowan objected to the trial court's instruction, arguing that the trial court had previously found only that the pit bull was not properly restrained. The jury returned a verdict in favor of the Plaintiffs in the amount of $150,000, apportioned equally between Arechiga and Cowan. This appeal ensued.

1. In related enumerations of error, Arechiga and Cowan contend that the trial court erred in concluding that they were negligent under OCGA § 51–2–7 and in taking this issue away from the jury's consideration because the trial court's order granting partial summary judgment found only that the pit bull was not properly restrained and made no ruling as to whether the dog was carelessly managed. We agree.

Under OCGA § 51–2–7,

[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....

Consequently, under this Code section, a plaintiff must show that (1) the owner carelessly managed or allowed the animal to go at liberty; (2) the animal was vicious or unrestrained at the time of the injury in violation of a local ordinance requiring such restraint; and (3) the animal 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 based on evidence of a violation of an ordinance that requires a dog to be at heel or on a leash. See Stennette v. Miller, 316 Ga.App. 425, 427(1), 729 S.E.2d 559 (2012) ; Huff v. Dyer, 297 Ga.App. 761, 763(1), 678 S.E.2d 206 (2009).

(a) In this case, it is undisputed that the pit bull was not properly restrained as required by section 10–29 of Gwinnett County's animal control ordinance.³ Evidence establishing that Cowan and Arechiga were in violation of Gwinnett County's leash law, however, only relieved the Plaintiffs from having to show that the owners had knowledge of the dog's vicious propensity. See Stennette, supra, 316 Ga.App. at 427(1), 729 S.E.2d 559 ; Huff, supra, 297 Ga.App. at 763(1), 678 S.E.2d 206. Under OCGA § 51–2–7, the Plaintiffs still had to establish that the owners carelessly managed the pit bull or allowed the animal to go at liberty. See Hackett, supra, 191 Ga.App. at 445(2), 382 S.E.2d 180. Here, there was no evidence that Cowan or Arechiga personally allowed the pit bull to run free on the day in question, because the evidence showed that Arechiga was not at home when the dog escaped and Cowan's guests had allowed the dog to escape when they failed to properly close the apartment's front door. Consequently, the Plaintiffs had to establish careless management. See Goodman v. Kahn, 182 Ga.App. 724, 725, 356 S.E.2d 757 (1987).

The Plaintiffs argue that, in granting partial summary judgment to them, the trial court implicitly found that Cowan and Arechiga carelessly managed the pit bull. That issue, however, was not presented to the trial court in Plaintiffs' motion for partial summary judgment. In their motion, the Plaintiffs argued only that Cowan and Arechiga were strictly liable because their pit bull was not properly restrained pursuant to the Gwinnett County animal control ordinance,⁴ but they made no argument regarding careless management. Had the trial court ruled on summary judgment that Arechiga and Cowan carelessly managed the dog, such a ruling would have been erroneous because there is no evidence that the defendants had notice and an opportunity to respond on that issue. See Hodge v. SADA Enterprises, Inc., 217 Ga.App. 688, 690, 458 S.E.2d 876 (1995) (where an issue is not raised in movant's motion for summary judgment, the trial court may not sua sponte grant summary judgment unless the non-movant is given full and fair notice and opportunity to respond to the issue prior to entry of summary judgment).

The parties clearly contemplated that the negligence issue had not been fully resolved because the pre-trial order expressly mentioned that the defendant's negligence under OCGA § 51–2–7 was an issue for the jury to determine. “Once entered, the pretrial order controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” (Citation and punctuation omitted.) Williams v. Martin, 273 Ga.App. 562, 564(1), 615 S.E.2d 774 (2005). Additionally, following the presentation of the trial evidence, the trial court determined that the jury still needed to resolve the careless management issue when...