Stennette v. Miller

• Decision Date: 26 June 2012
• Docket Number: No. A12A0622.,A12A0622.
• Citation: 729 S.E.2d 559,316 Ga.App. 425,12 FCDR 2097
• Parties: STENNETTE v. MILLER et al.
• Court: Georgia Court of Appeals

316 Ga.App. 425

729 S.E.2d 559

12 FCDR 2097

STENNETTE

v.MILLER et al.

No. A12A0622.

Court of Appeals of Georgia.

June 26, 2012.

Mathew G. Nasrallah, Marietta, for Appellant.

Lloyd B. Hedrick Jr., for Appellee.

McFADDEN, Judge.

Maureen Stennette was injured when she was bitten multiple times by Robin Miller's dog, Milo, while Stennette was at Miller's house providing nursing services to Miller's elderly mother, Helen Amonds, who also lived in the house. Stennette appeals from the trial court's grant of summary judgment to Miller in Stennette's personal injury action. As detailed below, we affirm the grant of summary judgment to Miller on Stennette's claims of liability based on the dangerous animal liability statute (OCGA § 51–2–7) and the premises liability statute (OCGA § 51–3–1), because Stennette failed to point to evidence showing triable issues on whether Milo had a vicious propensity and whether Miller knew of that propensity. But we reverse the grant of summary judgment to Miller on Stennette's claim that Miller negligently performed a voluntarily-undertaken duty to keep the dog away from her when she was at the house, because the evidence created genuine issues of material fact as to this claim. (The trial court also granted summary judgment to Miller on Stennette's claim of liability based upon OCGA § 4–8–26, but Stennette has raised no claim of error on appeal regarding that ruling.)

“Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.” (Citations and punctuation omitted.) Stolte v. Hammack, 311 Ga.App. 710, 716 S.E.2d 796 (2011).

So viewed, the evidence showed that at the time of the incident Stennette worked for a company that provided in-home nursing services to patients. On Stennette's first visit to Miller's house to provide services to Amonds, Milo jumped on her in an aggressive manner but did not attempt to scratch or bite her. Stennette asked Miller to keep Milo and Miller's other dogs away from her during that visit, and Miller did so. Stennette later informed her employer about the dogs and was told that it was company policy for dogs to be confined during a home health care visit. It became Stennette's practice to call Miller before visiting the house to ask that the dogs be confined away from her and, upon arriving, to check that the dogs were so confined before entering the house.

They day of the incident, December 1, 2008, Stennette informed Miller that she would be coming to the house and asked that the dogs be confined. Miller put the six dogs—Milo (a male bulldog), two female bulldogs, and three smaller dogs—into her fenced backyard. She then departed to run an errand, leaving Amonds and the housekeeper at the house.

When Stennette arrived at the house she was greeted by the housekeeper who told her that the dogs were confined. As Stennette entered the house through the front door, however, the dogs managed to get into the house through the back door. As Milo approached Stennette, the housekeeper unsuccessfully attempted to stop him or call him back. The two female bulldogs began chewing on Stennette's shoe, and Milo bit her leg. Stennette jumped onto a couch, followed by Milo, who continued to bite her. She was bitten more than 20 times and sustained significant injuries before the housekeeper managed to pull Milo away from her. Amonds, who was in her eighties at the time, witnessed the incident but did not attempt to control Milo.

1. Stennette argues that a genuine issue of material fact exists as to Miller's liability under OCGA § 51–2–7, which “sets forth the liability of owners of vicious or dangerous animals for injuries caused by those animals.” Durham v. Mason, 256 Ga.App. 467, 468(1), 568 S.E.2d 530 (2002). That Code section pertinently provides:

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.

OCGA § 51–2–7. “Unless there is evidence that the animal was not ‘at heel or on a leash’ as required by local ordinance at the time of the incident, a plaintiff in a dog bite case [under OCGA § 51–2–7] must show that the owner had knowledge that the dog had the propensity to commit the act that caused the injury.” (Citations omitted.) Durham, 256 Ga.App. at 468(1), 568 S.E.2d 530. Accord Oertel v. Chi Psi Fraternity, 239 Ga.App. 147, 148–149(2), 521 S.E.2d 71 (1999); Fields v. Thompson, 190 Ga.App. 177, 378 S.E.2d 390 (1989). As explained below, we find no genuine issue of material fact that, at the time of the incident, Milo was required to be at heel or on a leash or that Miller had knowledge that Milo had the propensity to bite a human, and thus the court did not err in granting summary judgment on Stennette's OCGA § 51–2–7 claim.

(a) Stennette argues that Miller violated section 10–11(a)(1) of Cobb County's animal control ordinance, which pertinently provided that “[i]t shall be unlawful for the owner of any animal to permit such animal to be out of his immediate control and restraint....” The ordinance, however, did not require Milo to be “at heel or on a leash” at the time of the incident. Where, as here, a dog is on its owner's premises, section 10–11(a)(2) a. of the ordinance permits three alternative means of restraining the dog:

Restraint of dogs and/or animals shall be maintained as follows: ... When upon the premises of the owner, all animals shall be kept [1] indoors or [2] in a primary enclosure as defined by this chapter in such a manner as to contain the animal within the bounds of the owner's premises, or [3] on a leash in the hands of a person that possess the ability to restrain the animal.

It is undisputed that, at all relevant times, Milo was kept either inside Miller's house or in her fenced backyard, which was a “primary enclosure” as defined by section 10–1 of the ordinance.

Nevertheless, Stennette argues that Miller was in violation of more general requirements of the ordinance relating to the control of animals, which she contends was enough to raise an issue of Miller's liability under OCGA § 51–2–7. She cites Johnston v. Warendh, 252 Ga.App. 674, 556 S.E.2d 867 (2001), in support of this argument. We find Johnston distinguishable because the dog in that case was not within its owner's house or fenced yard but was running free in front of the owner's house when it bit the plaintiff. Id. In any event, we must follow the plain meaning of the language in construing statutes and local ordinances. Huff v. Dyer, 297 Ga.App. 761, 764(2), 678 S.E.2d 206 (2009). OCGA § 51–2–7 provides that an animal's vicious propensity may be proved by a showing of a specific type of violation of an animal control ordinance—a violation of a requirement that the animal be at heel or on a leash. But OCGA § 51–2–7 says nothing about violations of other requirements within an animal control ordinance. Because Stennette did not make the showing of the type of animal control ordinance violation specified by the plain language of OCGA § 51–2–7, she was required instead to show that Miller had knowledge of Milo's vicious propensity in order to establish Miller's liability under that Code section. See Durham, 256 Ga.App. at 468(1), 568 S.E.2d 530.

(b) “In order to support an action for damages under OCGA § 51–2–7, it is necessary to show that the dog was vicious or dangerous and that the owner had knowledge of this fact.” (Citation omitted.) Rowlette v. Paul, 219 Ga.App. 597, 599, 466 S.E.2d 37 (1995). “[T]o infer the requisite knowledge there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” (Citation omitted.) Durham v. Mooney, 234 Ga.App. 772, 773(1), 507 S.E.2d 877 (1998).

In support of her motion for summary judgment, Miller offered evidence that Milo had not previously bitten or attempted to bite anyone. See Custer v. Coward, 293 Ga.App. 316, 318–319(1), 667 S.E.2d 135 (2008) (summary judgment was appropriate where there was no evidence that dog had bitten or attempted to bite anyone prior to incident). In response, Stennette failed to point to specific evidence giving rise to a triable issue on Miller's knowledge that Milo had a vicious propensity. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

Stennette conceded in deposition testimony that she was not aware of any prior instance in which Milo had bitten a person and that, although Milo jumped on her in an aggressive manner on her first visit to the house, he did not attempt to bite or scratch her. A dog's menacing behavior alone does not demonstrate its vicious propensity or place its owner on notice of such propensity. See Huff, 297 Ga.App. at 763(1), 678 S.E.2d 206;Raith v. Blanchard, 271 Ga.App. 723, 725(2), 611 S.E.2d 75 (2005); Wade v. Am. Nat. Ins. Co., 246 Ga.App. 458, 460(1)...