Stolte v. Hammack.

• Decision Date: 16 September 2011
• Docket Number: No. A11A1221.,A11A1221.
• Citation: 11 FCDR 2944,311 Ga.App. 710,716 S.E.2d 796
• Parties: STOLTEv.HAMMACK.
• Court: Georgia Court of Appeals

311 Ga.App. 710

716 S.E.2d 796

11 FCDR 2944

STOLTE

v.HAMMACK.

No. A11A1221.

Court of Appeals of Georgia.

Sept. 16, 2011.

Davis & Desautel, Stephen Bruce Davis, Andrew Craig Desautel, Atlanta, for appellant.Downey & Cleveland, Jonathan Colby Jones, for appellee.ANDREWS, Judge.

Edward Stolte sued Andrew Hammack for injuries received when a dog attacked him inside a townhouse owned by Hammack. Stolte sought recovery under the vicious animal statute (OCGA § 51–2–7) and the premises liability statute (OCGA § 51–3–1). The trial court granted summary judgment to Hammack as to both theories, concluding that Hammack did not have superior knowledge of the dog's viciousness. For reasons that follow, we affirm.

“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.” Raith v. Blanchard, 271 Ga.App. 723, 611 S.E.2d 75 (2005). “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.” Id.

Viewed in the light most favorable to the plaintiff, the record shows that Stolte, Hammack, Lauren Davis (Hammack's girlfriend), and Chris Marek lived together in a townhouse owned by Hammack. Hammack and Davis shared a room, while Stolte and Marek had their own rooms. Davis's dog Cujo, a pit bull, also lived in the townhouse.

On April 27, 2008, the dog bit Stephanie Gannon, a friend of Marek's who was visiting at the townhouse. Gannon testified that there were four people in the house when she arrived, Stolte, Hammack, Marek, and Hammack's stepbrother. She stated that Stolte, Hammack, and Hammack's stepbrother were all in one area talking to her. At some point, Marek came down the stairs, and the dog suddenly attacked Gannon. Although Gannon initially said that it was her understanding that “everyone was in the room” at the time, she later stated that she could not remember who was there when the dog attacked her.

Stolte said that he was not present when the attack occurred but that he heard about it the following morning from Marek. Stolte also saw Gannon's injuries the day after the attack. This was the first time that, to Hammack's and Stolte's knowledge, the dog had bitten or attacked anyone.

Following the attack, Gannon, who worked as an insurance adjustor, warned Hammack and Davis of their potential liability if the dog were to bite someone else. Davis, however, was reluctant to part with the dog, so Davis, Hammack, and Stolte agreed that the dog would stay locked up in Davis's and Hammack's room when they were not at home.

Before the attack on Gannon, Stolte said that he would play with the dog, take care of the dog, and, when Hammack and Davis were out of town, he occasionally let the dog sleep in his bed. Following the attack, however, Stolte testified that he was nervous about being around the dog and tried to have “as little contact with the dog as possible.”

Approximately three months after the dog attacked Gannon, Davis asked Stolte if he could walk the dog for her because she was late for work. Stolte said he would. When Stolte opened the bedroom door, the dog ran toward him and grabbed his right arm in his jaws. A struggle followed, during which Stolte received bites on his arms, chest and stomach. Stolte was hospitalized for three days and required numerous stitches and staples to close the wounds.

Stolte filed suit, and Hammack moved for summary judgment, contending that Stolte was equally aware of the dog's vicious propensity. Hammack also argued that Stolte assumed the risk of attack when he opened the door to the bedroom where they were keeping the dog. The trial court granted the motion, and this appeal followed.

1. Stolte argues that the trial court erred in finding that Hammack did not have superior knowledge of the dog's vicious propensity. Under 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....

Thus, “a plaintiff in a dog bite case must show that the owner had knowledge that the dog had the propensity to commit the act that caused the injury.... If the plaintiff does not present evidence that the owner had superior knowledge of his dog's temperament, then the owner is entitled to summary judgment.” Durham v. Mason, 256 Ga.App. 467, 468, 568 S.E.2d 530 (2002).

Stolte argues that Hammack had superior knowledge because he actually witnessed the...