Harper v. Robinson, A03A1506.

• Decision Date: 22 October 2003
• Docket Number: No. A03A1506.,A03A1506.
• Citation: 589 S.E.2d 295,263 Ga. App. 727
• Parties: HARPER v. ROBINSON et al.
• Court: Georgia Court of Appeals

589 S.E.2d 295

263 Ga. App. 727

HARPER v. ROBINSON et al.

No. A03A1506.

Court of Appeals of Georgia.

October 22, 2003.

Certiorari Denied February 16, 2004.

Gray Hedrick & Edenfield, Lloyd B. Hedrick, Jr., Atlanta, for appellant.

Miller, Cowart, Cates & Howe, Wallace Miller III, Joel A. Howe, Macon, for appellees.

ADAMS, Judge.

Charles W. Robinson and Kristie Robinson filed a wrongful death action against Philip Harper III in connection with the death of their daughter, Cora Le Robinson. Harper appeals from the trial court's denial of his motion for summary judgment. We reverse.

In November or December 2000, Charles Robinson became aware of an animal, named Natsayia, belonging to Steve Cole. Cole was looking for a home for Natsayia. Robinson understood that Natsayia had been "bred as a wolf" or "was a wolf," and he believed that his brother, Matthew Robinson, would be interested in the animal, so Charles brought the dog to Matthew. A few weeks later, Matthew and Natsayia moved in with Philip Harper. On January 19, 2001, Charles and Kristie Robinson, along with their infant daughter, Cora Le, were visiting in Harper's home. During the visit, Cora Le was placed on a bed to sleep. A few minutes later, Natsayia picked the infant up in her mouth and carried the child into the kitchen, resulting in the child's death.

The wrongful death complaint filed by Charles and Kristie Robinson asserted claims of negligence, strict liability, liability under OCGA § 51-2-7 and premises liability under OCGA § 51-3-2(b). Harper moved for summary judgment on these claims. The trial court granted summary judgment as to the Robinsons' negligence claim, but denied the motion as to the remaining claims.

1. Harper first contends that the trial court erred in denying summary judgment as to the Robinsons' strict liability claim. The trial court relied upon Candler v. Smith, 50 Ga.App. 667, 179 S.E. 395 (1935), in holding that a strict liability claim can exist against an animal that is ferae naturae¹ under Georgia law and that an issue of fact existed as to whether Natsayia should be considered ferae naturae. Harper asserts that this was error, however, because he presented uncontradicted evidence establishing that Natsayia was a dog, and thus not ferae naturae.

The Candler case held that when a person is injured by an animal ferae naturae, such as a lion, tiger, bear, or ape, the owner's negligence is presumed. Id. at 670(2), 179 S.E. 395. And the owner or keeper of such wild animals is required "to exercise that degree of care in regard to them which will absolutely prevent the occurrence of an injury to others...." Id. Thus, the Candler court held "the occurrence of the act producing the injury affords sufficient evidence that the owner or keeper has not exercised the degree of care required of him." Id. Under Georgia law, a dog is not considered ferae naturae, but rather is a domestic animal, and thus not subject to the holding in Candler. See Turner v. Irvin, 146 Ga.App. 218, 219, 246 S.E.2d 127 (1978) (Deen, P.J., concurring specially).

In support of his motion for summary judgment, Harper presented affidavit testimony from Steve Cole stating that Natsayia had been given to him by Wendy Davis. Davis, in turn, signed an affidavit stating that in 1998, she owned a female Malamute/Huskey dog named "Asia," and a male German Shepherd/Malamute dog named "Harley." Davis stated that these two dogs mated in 1998, resulting in a litter of three puppies. She said that she gave one of these puppies to Cole, and that puppy was the only dog she had ever given him.

In response, the Robinsons submitted Charles Robinson's affidavit stating that Cole's son had told him that Natsayia is a wolf and that the animal was bred as a wolf. But that statement is hearsay and has no probative value; thus, it cannot be considered on motion for summary judgment. Erickson v. Hodges, 257 Ga.App. 144, 146, 570 S.E.2d 420 (2002). Robinson also stated that his own observations "establish" that Natsayia is a wolf. He stated that he had known people who own wolves and that Natsayia "looks like a wolf, walks like a wolf and howls like a wolf."

We find that this evidence was insufficient to raise a jury issue as to whether Natsayia was ferae naturae, and therefore, Harper is entitled to summary judgment on the Robinsons' claim of strict liability. Harper presented evidence of Natsayia's direct pedigree as a dog. In the face of this evidence, the Robinsons were required to proffer more than a subjective belief that Natsayia exhibited wolf-like behaviors in order to create a jury issue as to Natsayia's parentage. On summary judgment, "an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility." (Citation and punctuation omitted.) Heinsimer v. Wellington Leisure Products, 231 Ga.App. 579, 582(1), 500 S.E.2d 7 (1998).

2. Harper also contends that the trial judge erred in failing to grant his motion for summary judgment on the Robinsons' claim under OCGA § 51-2-7. That statute provides, in pertinent part, that "[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." OCGA § 51-2-7.

"In order to support an action for damages under this statute, it must be shown that the dog was vicious or dangerous and that the owner knew it. The dog's nature and the owner's knowledge are two separate issues, and proof of both is necessary for recovery." (Citations omitted.) Clark v. Joiner, 242 Ga.App. 421, 422, 530 S.E.2d 45 (2000). And the Robinsons must show that Harper had knowledge that Natsayia had the propensity to do the particular act which caused the injury in this case. Wade v. American Nat. Ins. Co., 246 Ga.App. 458, 459(1), 540 S.E.2d 671 (2000).

The Robinsons contend that Harper had knowledge of Natsayia's dangerous propensities because he took precautions to keep her separated from his own two, much smaller dogs. In addition, they note that he created a rule that Natsayia could not be in the house unless Matthew Robinson stayed with her. The Robinsons assert that these actions by Harper create a jury issue as to whether he was aware of Natsayia's dangerous propensities.

But there is no evidence that...