Green v. Wilson
Decision Date | 16 July 2015 |
Docket Number | No. A15A0674.,A15A0674. |
Citation | 773 S.E.2d 872,333 Ga.App. 631 |
Parties | GREEN v. WILSON et al. |
Court | Georgia Court of Appeals |
Wilson R. Smith, Savannah, for Appellant.
William E. Turnipseed, Atlanta, for Appellee.
Pamela Green appeals from the grant of summary judgment to Robert Wilson in this personal injury action against him individually and in his capacity as executor of the estate of his wife, Audie Wilson. In the action, Green alleged that she was injured while trying to get away from the Wilsons' dog. Because there is evidence that Mrs. Wilson knew that the dog had the propensity to do the type of act that caused Green's injury, summary judgment is not appropriate. Accordingly, we reverse.
Stennette v. Miller, 316 Ga.App. 425, 426, 729 S.E.2d 559 (2012) (citation omitted).
So viewed, the evidence showed that at the time of the incident Green worked for a housecleaning company that provided cleaning services to the Wilsons, who owned a border collie named Nani. Normally, after arriving at the Wilsons' house, the housecleaners would wait outside until Mrs. Wilson locked Nani in a room. When the housecleaners were ready to clean that room, Mrs. Wilson would move Nani, sometimes physically dragging the dog to another room as the dog lunged, barked, and growled at the housecleaners. After securing Nani in the other room, Mrs. Wilson would tell the housecleaners that they were “safe.” Although Green testified that she did not see Nani behave viciously or aggressively, the other housecleaners testified that they were afraid of Nani.
On October 11, 2011, Green and a co-worker arrived at the Wilsons' house in a cleaning company van. Unlike other times, on this occasion Nani was outside the house in a fenced enclosure, barking. Green got out of the van. Suddenly, Green's co-worker saw Nani leap over the fence and run towards Green. The co-worker yelled a warning to Green, who quickly jumped inside the van and shut the door as Nani barked, growled, and jumped against the van door. In Green's effort to escape the dog, she struck her arm against the van, sustaining an injury that required surgery.
Wade v. American Nat. Ins. Co., 246 Ga.App. 458, 459(1), 540 S.E.2d 671 (2000) (citations and punctuation omitted) (addressing claims made under both the dangerous animal liability statute, OCGA § 51–2–7, and the premises liability statute, OCGA § 51–3–1 ). See generally Stennette, supra, 316 Ga.App. 425, 729 S.E.2d 559 ( ).
Torrance v. Brennan, 209 Ga.App. 65, 67–68(2), 432 S.E.2d 658 (1993) (citations and punctuation omitted).
Green presented more than simply evidence of Nani's aggressive or menacing behavior. She presented evidence that, on at least one occasion, a barking and growling Nani lunged at the housecleaners as Mrs. Wilson held the dog back. We find no meaningful distinction between this behavior and what happened on the day Green was injured. In both instances the dog's acts could be construed as attempts to move toward a person in an aggressive manner. The evidence of the incident in which Nani, while restrained, lunged aggressively at a housecleaner raises a genuine issue of material fact as to whether a prudent person would anticipate that Nani would chase someone if unrestrained. Together with that evidence, Mrs. Wilson's efforts to keep Nani away from the housecleaners also raises a fact question about her knowledge of the dog's propensities. See Supan v. Griffin, 238 Ga.App. 404, 406, 519 S.E.2d 22 (1999) ( ).
The dissent cites several cases in which we held that prior incidents, as a matter of law, did not show the defendant dog owner knew or should have known of the dog's propensity to do the act that resulted in the plaintiff's injury. In those cases, however, the dogs' prior conduct was not as similar to the conduct that injured the plaintiff as is the case here. See, e.g., Kringle v. Elliott, 301 Ga.App. 1, 3(1), 686 S.E.2d 665 (2009) ( ); Huff v. Dyer, 297 Ga.App. 761, 763(1), 678 S.E.2d 206 (2009) ( ); Phiel v. Boston, 262 Ga.App. 814, 816 –817(1), 586 S.E.2d 718 (2003) ( ); Wade, 246 Ga.App. at 460(1), 540 S.E.2d 671 ( ); Hamilton v. Walker, 235 Ga.App. 635–636, 510 S.E.2d 120 (1998) ( ); Durham v. Mooney, 234 Ga.App. 772, 773 –774(1), 507 S.E.2d 877 (1998) ( ); Rowlette v. Paul, 219 Ga.App. 597, 599, 466 S.E.2d 37 (1995) ( ); Marshall v. Person, 176 Ga.App. 542, 543, 336 S.E.2d 380 (1985) ( ); Banks v. Adair, 148 Ga.App. 254, 255, 251 S.E.2d 88 (1978) ( ).
Because a fact question exists as to whether Nani had the propensity to do the act that caused Green's injury and whether Mrs. Wilson had knowledge of that propensity, summary judgment was not appropriate. See Evans–Watson v. Reese, 188 Ga.App. 292, 293–294, 372 S.E.2d 675 (1988) ( ).
Judgment reversed.
Because there is no evidence in the record sufficient to infer that the owners of the dog, the Wilsons,1 knew or should have known of their dog's propensity to chase people (inside or outside of the home), the trial court did not err in granting the Wilsons' motion for summary judgment.
For Green to recover damages resulting from the injuries she sustained while running away from the Wilsons' dog,2 she must prove that the Wilsons knew or should have known of their dog's propensity to do the particular act that caused the injury at issue.3 The particular act that allegedly caused Green's injury was the Wilsons' dog chasing her. And while Green was not required to show that the Wilsons knew or should have known of the dog's propensity to do the exact same act that caused her injury (i.e., vaulting the fence and chasing someone who had just pulled up in a vehicle),4 the law does require that there must be at least one incident that would cause a prudent person to anticipate the actual incident that occurred (i.e., chasing people in general).5 Thus, unless Green can point to a prior incident of the same type as the incident at issue, the requisite knowledge necessary to impose liability for the incident that caused her injury will not be ascribed to the...
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