Oertel v. Chi Psi Fraternity

• Decision Date: 16 July 1999
• Docket Number: No. A99A0386.,A99A0386.
• Citation: 521 S.E.2d 71,239 Ga. App. 147
• Parties: OERTEL v. CHI PSI FRATERNITY (National) et al.
• Court: Georgia Court of Appeals

521 S.E.2d 71

239 Ga. App. 147

OERTEL v. CHI PSI FRATERNITY (National) et al.

No. A99A0386.

Court of Appeals of Georgia.

July 16, 1999.

John H. Ridley, Jr., Jonesboro, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Brian J. Amero, Hawkins & Parnell, Anita W. Thomas, Atlanta, for appellees. BARNES, Judge.

R.L. Oertel appeals the grant of summary judgment to Chi Psi Fraternity ("National"); Chi Psi Fraternity, Alpha Iota Delta Chapter ("Local"); Armin Steinke, as agent of the fraternity and individually; and Andrew Sain, as agent of the fraternity and individually. Mr. Oertel filed suit against the defendants after he was bitten by a large golden retriever named Spencer that lived at the fraternity house. After the incident, a representative of the fraternity pled guilty in Atlanta Municipal Court to allowing Spencer to run free and to keeping a vicious dog in violation of local ordinances.

Mr. Oertel's complaint averred the defendants had ownership and control of Spencer and all knew of Spencer's vicious propensities because they had been cited several times for allowing Spencer to run loose. Contending they had no knowledge of Spencer's propensity to bite and denying any ownership interest in the dog, both Local and National moved for summary judgment. The record on appeal does not show that defendants Steinke or Sain filed motions for summary judgment, and the motions filed by National and Local do not seek summary judgment on their behalf.

After summary judgment was granted to all defendants, including Steinke and Sain, Oertel filed this appeal. He contends the trial court erred by granting summary judgment to Local because Steinke pled guilty on behalf of Local to having a dog at large and to having a vicious dog, and also contends the trial court erred by granting summary judgment to National because Local is an agent of National and was acting within the scope of its agency. While we agree with Oertel's first contention, we find no factual support for the second and, therefore, must reverse in part and affirm in part.

1. The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). When ruling on a motion for summary judgment, the party opposing the motion should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward that party. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843 (1988). On appeal, this court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga.App. 399, 486 S.E.2d 662 (1997); Goring v. Martinez, 224 Ga.App. 137, 138(2), 479 S.E.2d 432 (1996).

2. The law concerning liability of owners or keepers of vicious or dangerous animals for injuries caused by that animal is codified at 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 animal was at the time of the occurrence not at heel or on a leash....

(Emphasis supplied.) Because it is alleged that Spencer was running at large in violation of the local ordinance when he bit Oertel, we are not concerned with whether the defendants were otherwise aware of Spencer's alleged vicious propensities. The "one bite rule," if it can be called that any longer, see Supan v. Griffin, 238 Ga.App. 404, 519 S.E.2d 22 (1999), is not implicated in this case.

The portion of OCGA § 51-2-7 emphasized above became effective July 1, 1985. It is not controverted that, at the time he allegedly bit Oertel in March 1995, Spencer was not on the fraternity's premises and was not on a leash.

The clear and unambiguous language of OCGA § 51-2-7 establishes that the vicious propensity of an animal may be proved by showing that the animal was required to be "at heel or on a leash by an ordinance" of the applicable governmental body and that the animal at the time of the occurrence was not at heel or on a leash.

Fields v. Thompson, 190 Ga.App. 177, 378 S.E.2d 390 (1989). Although Oertel did not introduce copies of the particular local ordinances in question, he did present evidence through the deposition of defendant Steinke that Steinke appeared in Atlanta Municipal Court as a representative of the local fraternity after Spencer bit Oertel, and pled guilty to violations of the local ordinances for allowing Spencer to run at large and for maintaining a vicious dog.

This testimony was corroborated by the transcript of the hearing during which Steinke pled guilty as a representative of Local. In addition to Steinke's plea, the transcript also contains the testimony of the animal control officer, who charged Steinke with having a vicious dog and a dog at large. Giving Oertel the benefit of all reasonable doubts and construing the evidence and all inferences and conclusions from the evidence in his favor, we find it reasonable to infer from Steinke's deposition testimony and the transcript of the guilty plea hearing that an ordinance existed that required Spencer to be at heel or on a leash at the time that Spencer bit Oertel. Further, the evidence shows that Spencer was not at heel or on a leash when he bit Oertel. Accordingly, Oertel presented sufficient evidence for a question of fact to exist on the issue of Spencer's vicious propensity.

By presenting evidence that appellee's animal was required to be on a leash by an ordinance of the applicable governmental body and that the animal was not on a leash at the time of the occurrence, appellant has presented sufficient evidence to prove the vicious propensity of appellee's dog under OCGA § 51-2-7. The trial court erred by granting summary judgment in appellee's favor.

Fields, supra, 190 Ga.App. at 178, 378 S.E.2d 390.

Although the dissent concludes that Oertel's response to the motion was not adequate because he "failed to provide sufficient evidence that Spencer's owners should have known of his propensity to bite under either statutory or common law standards," that argument fails on two grounds:

First, Oertel had no such burden.

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.

OCGA § 51-2-7. If an animal is running at large in violation of a local ordinance when it bites someone, the owner's knowledge of its propensity to bite is immaterial.

By [the language of OCGA § 51-2-7] the General Assembly has abrogated in situations meeting the statutory requirements the prior case law of this court and the Supreme Court requiring proof in all instances that the owner of the animal had knowledge of the animal's vicious propensity.

Fields, supra, 190 Ga.App. 177, 378 S.E.2d 390.

Second, contrary to the dissent's assertion, Oertel met his burden as a respondent to a motion for summary judgment. Oertel's burden was only to "point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Lau's Corp., 261 Ga. at 491, 405 S.E.2d 474. His obligation was to come forward with evidence raising a material issue of fact, not to prove conclusively the fact that is for the jury to decide. We are satisfied that, based upon the evidence discussed below and the inferences and conclusions to which he is entitled, Moore, supra, 187 Ga.App. at 595-596, 370 S.E.2d 843, Oertel has satisfied his burden. Further, courts should treat the nonmovant's response "`with considerable indulgence.'" (Citations omitted.) Haire v. City of Macon, 200 Ga.App. 744, 746, 409 S.E.2d 670 (1991).

The record shows that Oertel's response to the motion for summary judgment relied upon the "dog at large" part of OCGA § 51-2-7 and used Steinke's and Sain's deposition testimony, as well as the transcript of the municipal court hearing, as evidentiary support for his argument. The defendants did not raise the objections now raised by the dissent. Instead, the defendants ignored the "dog at large" part of OCGA § 51-2-7, and continued to base their defense on the "one bite theory."

Because of the dissent's allegation regarding the inadequacy of Oertel's response, it is important to understand the nature of the evidence showing the violation of the local ordinance. Therefore, the testimony on this issue is set out below:

Steinke's deposition shows he was asked the following:

Q: How many times did you as an individual appear in court for a dog at large charge?

A: I believe it was five times.

Q: Do you recall what the violations were beginning with the first through fifth that the animal control had cited you for?

A: To my knowledge, they were all dog at large which after asking questions it was just a dog not on a leash.

Q: When you went to court for the five times or approximately five times, you were there representing the fraternity. You weren't there as an individual, were you?

A: Correct.

Q: Those five times you said—or did you, let me ask you that—yes, you were guilty of a dog at large and will pay the fine?

A: Correct.

Q: On June 13th, 1995, do you recall pleading guilty to having a vicious dog and the dog at large?

A: I do.

Mr. Sain's deposition testimony shows the following:

Q: Do you recall on how many occasions your fraternity has been cited by law because of Spencer?

A: Cited by law, for the time I was there I would guess it's probably been about three. There probably have been about three fines or four fines paid for dog at

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