Saulsbury v. Wilson

• Decision Date: 08 February 2019
• Docket Number: A18A1901
• Parties: SAULSBURY et al. v. WILSON.
• Court: Georgia Court of Appeals

348 Ga.App. 557

823 S.E.2d 867

SAULSBURY et al.

v.WILSON.

A18A1901

Court of Appeals of Georgia.

February 8, 2019

Michael Lewis Miller, Steven Harris Campbell, Atlanta, for Appellant.

Walter Joseph Gabriel Jr., Yolanda D. Edwards, for Appellee.

Markle, Judge.

This interlocutory appeal arises from a dog fight between Alpha, a dog owned by Lilita Renee Wilson, and Baby, a dog owned by Maribel Saulsbury. Both Wilson and Saulsbury allege they were injured during the dog fight and seek compensation for their injuries.¹ The Saulsburys moved for summary judgment on Wilson’s counterclaims, in part, on the ground that Wilson assumed the risk of harm by intervening to break up the dog fight with her bare hands. The trial court denied the motion, finding that material issues of fact exist, but issued a certificate of immediate review of this order. This Court granted the Saulsburys’ application for interlocutory review and the Saulsburys timely appealed. Upon review of the record, we find that Wilson assumed the risk of harm as a matter of law, and we reverse the trial court’s denial of the motion for summary judgment on Wilson’s claim.

"In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment." (Citation omitted.) La Cosecha, Inc. v. Hall , 246 Ga. App. 441, 442, 540 S.E.2d 659 (2000).

So viewed, the record shows that Saulsbury was walking her English Bulldog, Baby, past Wilson’s house on May 13, 2016. Wilson’s Pit Bulldog, Alpha, was secured in a crate inside Wilson’s open garage, but the dog somehow escaped. A fight ensued between the dogs, though the parties disagree about the particulars of the fight. Wilson intervened to try to break up the fight. At one point she was able to pull Alpha out of the fight, but she slipped and lost control of the dog. Wilson engaged with the dogs again in an attempt to pull Alpha away. Wilson was not afraid of her own dog during this fight, and she was not concerned about being bitten by Baby because she believed Baby was solely focused on Alpha. However, Wilson was aware prior to this fight that Baby previously bit a different neighbor.² Wilson nonetheless did not think any bite would be severe because, in her experience, the bites sustained during dog fights were superficial. Also, she had broken up other dogfights before using a stick.

While attempting to break up this fight, Wilson was bitten, allegedly by Baby. Wilson left the dogs fighting outside to tend to her bite. Wilson returned outside and eventually the dogs stopped fighting, though the parties disagree about what caused the fight to end. Wilson suffered a broken arm as a result of the dog bite, and she was required to undergo rabies shots when Baby’s vaccination

history was not timely available.

The Saulsburys sued Wilson in magistrate court to recover hospital and veterinary expenses. Wilson answered, counterclaimed, and successfully transferred the case to superior court because her claims exceed $15,000. The Saulsburys moved for summary judgment on Wilson’s claims, and the trial court denied the motion. This appeal followed.

1. The Saulsburys argue they were entitled to summary judgment because Wilson assumed the risk of harm as a matter of law when she intervened in a dog fight with her bare hands. We agree.

Wilson brings her cause of action pursuant to OCGA § 51-2-7³ which provides, in relevant part,

[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.

Regardless of whether Saulsbury’s dog, Baby, would be considered a "vicious or dangerous animal" pursuant to this statute, Wilson cannot recover if she assumed the risk of harm by using her bare hands to break up a dog fight.

Assumption of risk in its simplest and primary sense means that the plaintiff has given [her] express consent to relieve the defendant of an obligation of conduct toward [her] and to take [her] chance of injury from a known risk. The result is that the defendant is simply under no legal duty to protect the plaintiff.

(Citation and punctuation omitted.) Lundy v. Stuhr , 185 Ga. App. 72, 75, 363 S.E.2d 343 (1987).

The defense of assumption of the risk of danger applies when the plaintiff, with a full appreciation of the danger involved and without restriction of her freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct. A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed herself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

(Citation omitted.) Gilreath v. Smith , 340 Ga. App. 265, 268 (1), 797 S.E.2d 177 (2017). "Assumption of risk is a complete defense to negligence." (Citation omitted.)

Christian v. Eagles Landing Christian Academy, Inc. , 303 Ga. App. 113, 115-116 (2), 692 S.E.2d 745 (2010).

Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, either for or against the complainant, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.

(Citations and punctuation omitted.) Fagan v. Atnalta, Inc. , 189 Ga. App. 460, 376 S.E.2d 204 (1988) ; see also Durham v. Mason , 256 Ga. App. 467, 468 (2), 568 S.E.2d 530 (2002) (assumption of the risk defense bars recovery when the evidence shows that the plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.") (punctuation omitted).

This Court has recognized the risk that animals, even domesticated animals, can pose to humans. See Lundy , 185 Ga. App. at 73-74, 363 S.E.2d 343 ("It is in the common knowledge of the members of society that even domestic animals, when startled, are prone to defend themselves by biting. It is an unwise person who approaches an unknown dog and makes gestures toward that dog without first ascertaining the propensities of the dog."); see also Griffiths v. Schafer , 223 Ga. App. 560, 563, 478 S.E.2d 625 (1996) ("practically any dog will bite in certain circumstances and that particularly violent and aggressive breeds are more likely to bite and even to inflict severe wounds

."). Although we have not applied assumption of the risk to dog fight injuries, in other contexts we have held that "an adult of ordinary intelligence will be held to be aware of manifest risk or danger of possible injury when [she] deliberately and voluntarily joins in an affray, as a matter of law." (Citations and punctuation omitted.) Cornelius v. Morris Brown College , 299 Ga. App. 83, 86 (3), 681 S.E.2d 730 (2009). This Court has previously held that "it is well settled that an adult of ordinary intelligence assumes the risk of possible injury when [she] deliberately and voluntarily joins in a fight, or enters into a fight for the purpose of breaking it up." Carter v. Scott , 320 Ga. App. 404, 408 (2), 750 S.E.2d 679 (2013) ; see also Fagan , 189 Ga. App. at 461, 376 S.E.2d 204. While all of these cases involved fights with human participants, we see no reason for a different rule when...