Durham v. Mooney
| Decision Date | 16 October 1998 |
| Docket Number | No. A98A1292.,A98A1292. |
| Citation | 234 Ga. App. 772,507 S.E.2d 877 |
| Parties | DURHAM et al. v. MOONEY. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
George W. McGriff & Associates, George W. McGriff, Atlanta, Eric E. Wyatt, Madison, for appellants.
Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Susan G. James, Joan G. Crumpler, Atlanta, for appellee.
William and Cora Durham brought suit against Charles Mooney to recover damages for personal injury, punitive damages, and loss of consortium incurred when Mooney's dog bit William Durham. The trial court granted Mooney's motion for summary judgment, and this appeal ensued. We find that because Mooney successfully negated at least one essential element of the Durhams' case, the trial court properly entered summary judgment in favor of Mooney. We therefore affirm the judgment.
The record shows that Mooney bought his Rottweiler dog, Malik, in 1994. He had previously owned two other Rottweilers and other large dogs. None of his dogs, including Malik, ever attacked anyone before. On the date of the incident, in April 1996, Mooney took Malik for a walk. Malik was on a leash. Durham, who was a neighbor but had not been formally introduced to Mooney, walked over to Mooney, and the two men introduced themselves and shook hands. Durham testified he admired Malik and asked if he could pet him. Durham then knelt, petted Malik, and rubbed his head and neck, whereupon the dog suddenly bit Durham's arm. The parties agree that the dog gave no warning signals such as growling or barking at Durham before biting him and Durham did nothing overt to provoke or abuse the dog.
OCGA § 51-2-7 provides that Under this Code section, it is clear that to recover in a dog bite case, a plaintiff must show not only that the dog had vicious propensities, but also that the owner knew or should have known of those propensities. Freeman v. Farr, 184 Ga.App. 830-831, 363 S.E.2d 48 (1987) (physical precedent only).
The trial court ruled that Mooney was not liable under the per se provision of the statute notwithstanding a county leash law, because the dog was leashed at the time of the incident. The court also concluded that no evidence was presented showing careless management, vicious propensities, or knowledge attributable to Mooney of any such propensities.
1. The Durhams contend the trial court erred in concluding that insufficient evidence was presented to show that Malik had vicious propensities or that Mooney had knowledge of such propensities. The dog's nature and the owner's knowledge are two separate issues, and both are necessary for recovery. Torrance v. Brennan, 209 Ga.App. 65, 66(1), 432 S.E.2d 658 (1993).
The Durhams point to evidence that Malik had barked and growled at Mooney's next door-neighbor as evidence of his vicious propensity. But barking and growling amount, at most, to what has been characterized as menacing behavior. And it is clear that menacing behavior alone does not establish vicious propensity. Banks v. Adair, 148 Ga.App. 254, 255, 251 S.E.2d 88 (1978). Even assuming, arguendo, that Malik did have a vicious propensity, if no evidence was presented of Mooney's knowledge of that propensity, an essential element of the Durhams' case is lacking, and summary judgment was proper.1
"[T]his court has repeatedly held that proof that the owner of the dog either knew or should have known of the dog's propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner." (Citations and punctuation omitted; emphasis supplied.) Freeman, supra. The owner need not be aware of the dog's propensity to do the exact same act that caused the injury in issue, but in order to 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. Torrance, supra at...
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