Matta-Troncoso v. Tyner

• Decision Date: 04 October 2017
• Docket Number: A17A0734
• Citation: 806 S.E.2d 10,343 Ga. App. 63
• Parties: MATTA-TRONCOSO et al. v. TYNER.
• Court: Georgia Court of Appeals

343 Ga.App. 63

806 S.E.2d 10

MATTA-TRONCOSO et al.

v.TYNER.

A17A0734

Court of Appeals of Georgia.

October 4, 2017

Bruce Robert Millar, Jonesboro, James Brian Sullivan, for Appellant.

Michael Charles Kendall, Kimberly DeWitt Mowbray, Douglasville, for Appellee.

Dillard, Chief Judge.

After Maria Matta-Troncoso sustained severe injuries in an attack by two dogs, she and her husband ("plaintiffs") filed a lawsuit against Michael and Lakeisha Thornton, the dogs' owners, and Gregory Tyner, the Thorntons' landlord, alleging that her injuries were a result of the Thorntons failing to prevent their dogs from escaping their fenced back yard and Tyner's failure to keep a latch on the fence's gate in good repair.Tyner moved for summary judgment, which the trial court granted.On appeal, the plaintiffs contend that the trial court erred in holding that summary judgment for Tyner was warranted because they failed to produce evidence that the Thorntons' dogs had previously exhibited vicious propensities.For the reasons set forth infra, we reverse.

Viewed in the light most favorable to the nonmovant,¹ the record shows that Tyner owns a house located at 108Ivy Trace in Stockbridge, Henry County, Georgia.Initially, Tyner lived in the home, but on December 6, 2008, he entered into an agreement to lease the property to Michael and Lakeisha Thornton, and shortly thereafter, the couple and their three children moved into the home.The couple also owned a Labrador Retriever, but the lease specifically allowed pets, and the property had a fairly large back yard, which was enclosed by a wooden privacy fence and accessible via the house's back door and a gate that opened onto the front yard.

A few months after the Thorntons moved into the home, a lawn-care service provider broke the latch to the front gate of the fence.Michael Thornton notified Tyner that the latch had been broken within a few days after it happened, but Tyner never repaired it, and Michael admittedly never followed up with any subsequent requests for Tyner to do so.Instead, Michael began securing the front gate by tightly tying a dog leash around the top posts of the gate and the abutting part of the fence, and by placing weights and a cement block at the base of the gate to stop it from swinging open.

Nevertheless, a few years after they had been living in the leased home, the Thorntons' Labrador Retriever escaped from their back yard and was fatally struck by a car.Subsequently, the Thorntons adopted two Pit Bull Terrier puppies, which—like their previous dog—they kept outside in the back yard during the day and crated in the basement of the home at night.Over the course of the next two years, neither of the two dogs ever displayed any aggressive behavior, and in fact, the Thorntons were comfortable allowing their children and young nieces to play with them.

In the early afternoon of October 24, 2013, Maria Matta-Troncoso, who lived a few blocks away from the Thorntons, was walking her two small dogs in the neighborhood when the Thorntons' two dogs—who had obviously escaped from their back yard—raced toward her and began attacking her dogs.One of her dogs fled, but in attempting to defend her other pet, Troncoso picked it up and shielded it in her arms, at which point the two Pit Bulls knocked Troncoso to the ground and began attacking her as well.A neighbor quickly called the police, and within minutes, an officer responded to the scene.Initially, the officer attempted to stop the attack on Troncoso by kicking the dogs.But when this proved unsuccessful, the officer fatally shot both of them.The responding officer and another officer, who had just arrived, began administering first aid to Troncoso, who, shortly thereafter, was airlifted to the hospital.

Not long after the attack ended, Lakeisha Thornton arrived home, saw that the front gate to the fence was open, and that the dogs had escaped.She then began driving around the neighborhood to look for them.Almost immediately, she encountered a police officer, who told her that he was looking for a dog but provided no additional details.A few minutes later, she came upon a television news reporter and asked him why he and the police were in the neighborhood.The reporter informed her that two dogs had attacked a woman, and based on his description of the dogs, Lakeisha feared that her pets were responsible.Lakeisha then called Michael, who was at work, and informed him of what had transpired.

Following his wife's phone call, Michael came home, and after speaking with one of the police officers and viewing photographs of the dogs the officer had shot, he confirmed that the dogs involved in the attack belonged to him.A few months later, the State charged Michael, via accusation, with four counts of violating Henry County ordinances pertaining to keeping a vicious animal, failing to provide a collar and display of current vaccination tag for an animal, failing to keep an animal under restraint, and allowing an animal to become a public nuisance.Ultimately, he pleaded guilty to all charges.

Thereafter, Troncoso and her husband filed a lawsuit against the Thorntons, alleging that she suffered injuries as a result of the Thorntons' failure to prevent their dogs from escaping their fenced back yard and attacking her.Later, the plaintiffs amended their complaint to add Tyner as a defendant, alleging that Troncoso's injuries were also a result of Tyner's failure to keep the latch on the fence's gate in good repair.Both the Thorntons and Tyner filed answers.

Upon the conclusion of discovery, Tyner filed a motion for summary judgment, arguing that the plaintiffs failed to present any evidence showing that his failure to repair the gate's latch was the proximate cause of Troncoso's injuries.Subsequently, the plaintiffs filed a response.After considering these written submissions, the trial court granted summary judgment in Tyner's favor, finding that Tyner breached a duty to keep the premises in good repair but that summary judgment was nevertheless warranted because the plaintiffs presented no genuine issue of material fact showing that the Thorntons' dogs had ever displayed vicious propensities or that Tyner had knowledge of same.This appeal follows.

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."²If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, "and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met."³Moreover, in our de novo review of a trial court's grant of a motion for summary judgment, we are charged with "viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant."⁴With these guiding principles in mind, we turn now to the plaintiffs' specific claims of error.

The plaintiffs contend that the trial court erred in granting summary judgment in favor of Tyner, specifically arguing that the court misconstrued the applicable law in holding that no genuine issues of material fact showed that the Thorntons' dogs previously exhibited vicious propensities.We agree.

OCGA § 51-2-7"sets forth the liability of owners of vicious or dangerous animals for injuries caused by those animals,"⁵ providing 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.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....⁶

Accordingly, 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."⁷And importantly, 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."⁸

In its order granting summary judgment in this matter, the trial court focused on whether the Thorntons' dogs had ever displayed any vicious propensities, finding that the plaintiffs presented no genuine issues of material fact that they had.But because the plaintiffs alleged in their complaint—and noted in their response to Tyner's motion for summary judgment—that the dogs were running at large in the neighborhood unrestrained, in violation of the Code of Henry County Article I, Section 3-4-9, Subsections (2), (3), (5), and (8), when they attacked Troncoso, the rule requiring evidence that the Thorntons and Tyner were aware of the dogs' vicious propensities is not implicated here, and therefore, the trial court's focus in this regard was misplaced.⁹

Nevertheless, Tyner counters that the trial court did not err in granting summary judgment in his favor, arguing that the court properly did not consider the Henry County ordinance because the plaintiffs failed to provide a copy of the ordinance for the record.¹⁰Tyner is, of course, correct that "judicial notice can not be taken by the superior court or this [C]ourt of city or county ordinances, but they must be alleged and proved."¹¹And the proper method of proving a city ordinance is "by production of the original or of a properly certified copy."¹²But contrary to Tyner's argument, the plaintiffs' "burden was only to...