Tyner v. Matta-Troncoso

• Decision Date: 11 March 2019
• Docket Number: S18G0364
• Parties: TYNER v. MATTA-TRONCOSO et al.
• Court: Georgia Supreme Court

305 Ga. 480

826 S.E.2d 100

TYNER

v.MATTA-TRONCOSO et al.

S18G0364

Supreme Court of Georgia.

Decided: March 11, 2019

Michael Charles Kendall, Kimberly DeWitt Mowbray, Kendall Law Group, LLC, 3152 Golf Ridge Boulevard, Suite 201, Douglasville, Georgia 30135, for Appellant

Bruce Robert Millar, James Brian Sullivan, Millar & Mixon, LLC, 108 Williamson Mill Road, Jonesboro, Georgia 30236, for Appellees

Michael D. Thornton, Lakeisha L. Thornton, 278 Ironwood Drive, Stockbridge, Georgia 30281, for Other Party

Warren, Justice.

On January 8, 2014, Maria Matta-Troncoso and her husband, Mario Matta ("the Mattas"), sued Michael and Lakeisha Thornton, alleging that the Thorntons were liable under OCGA § 51-2-7¹ for injuries that Matta-Troncoso sustained when the Thorntons' dogs attacked her as she was walking her own dogs approximately two blocks away from the Thorntons' rental house. On August 20, 2014, the Mattas amended their complaint by adding Gregory B. Tyner, the Thorntons' landlord, alleging that he was liable under OCGA § 44-7-14² for failing to keep the rental property in repair. Specifically, they alleged that Tyner failed to repair a broken gate latch that allowed the Thorntons' dogs to escape the property and attack Matta-Troncoso. Tyner filed a motion for summary judgment,³ and the trial court determined that although Tyner breached his duty to keep the premises in repair by failing to repair the broken gate latch, summary judgment was nevertheless warranted in his favor because the Mattas made no showing that the Thorntons' dogs had ever displayed vicious propensities or that Tyner had knowledge of such tendencies. On appeal, the Court of Appeals reversed the trial court’s ruling that Tyner was entitled to summary judgment. It concluded that the trial court erred in its analysis of whether Tyner had knowledge of the dogs' vicious propensities. Citing OCGA § 51-2-7, the Court of Appeals reasoned that because there was evidence that the dogs were unleashed in violation of a local ordinance, the Mattas were not required to produce evidence that "Tyner [was] aware of the dogs' vicious propensities." Matta-Troncoso v. Tyner , 343 Ga. App. 63, 66-68, 806 S.E.2d 10 (2017). The Court of Appeals further concluded that Tyner could be liable under OCGA § 44-7-14 because that statute did not limit a landlord’s liability to injuries occurring on a leased premises, and that there existed a genuine issue of material fact as to whether Matta-Troncoso’s injuries "arose from" Tyner’s failure to repair the gate latch. Id. at 68-70, 806 S.E.2d 10 (referencing portion of OCGA § 44-7-14 that provides that a "landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair") (emphasis supplied).

We granted Tyner’s petition for certiorari and posed a single question: Did the Court of Appeals err by reversing the trial court’s grant of summary judgment in favor of Tyner? We answer that question in the affirmative, and therefore reverse the Court of Appeals.

1. On appeal from a ruling on a motion for summary judgment, we conduct a de novo review, viewing the evidence in the record and all inferences therefrom in the light most favorable to the nonmoving party. See Steagald v. Eason , 300 Ga. 717, 718 n.1, 797 S.E.2d 838 (2017) ; Toyo Tire N. Am. Mfg., Inc. v. Davis , 299 Ga. 155, 161, 787 S.E.2d 171 (2016). So viewed, the evidence shows the following. Tyner leased his house to the Thorntons in 2008. Both the original lease and a subsequent lease allowed the Thorntons to keep pets without any restrictions, and the record shows that Tyner was aware that the Thorntons had a Labrador retriever dog when they first moved into the rental house.

The backyard of the house was enclosed by a wooden privacy fence. The front gate of the fence initially had a latch on it that prevented the gate from opening. Some time after moving in, the Thorntons discovered that a pest-control or lawn-service provider had broken the latch on the front gate. Although the parties presented contradictory evidence about whether the Thorntons ever notified Tyner about the broken latch, Tyner concedes that his knowledge of the broken latch must be assumed for purposes of summary judgment and for this appeal. Tyner never repaired the latch or ordered it to be repaired. Because the latch was broken, the Thorntons began securing the front gate with a tightly tied dog leash and with weights and a cement block at the base of the gate. Some years later, the Thorntons' Labrador retriever escaped from the backyard and was struck and killed by a car. The Thorntons then acquired two pit bull terriers and kept them outside in the backyard during the day and in the home at night. Because there is at least some record evidence indicating that Tyner may have known about the Thorntons' pit bulls, we assume at this stage that Tyner was aware of the dogs' existence. However, there is no record evidence that the Thorntons' pit bulls displayed aggressive behavior before they attacked Matta-Troncoso, or that Tyner knew the pit bulls had any kind of aggressive temperament or propensity.

On October 24, 2013, Michael Thornton secured the gate as he usually did before leaving the two dogs unattended in the backyard. Matta-Troncoso, who lived a few blocks away from the Thorntons, was walking her two small dogs in the neighborhood when the Thorntons' two pit bulls attacked her dogs. One of her dogs fled. While Matta-Troncoso attempted to defend the other, the Thorntons' dogs knocked Matta-Troncoso to the ground and began attacking her. A neighbor called the police and an officer arrived within minutes. The officer fatally shot both dogs and began administering first aid to Matta-Troncoso, who was airlifted to the hospital with serious injuries.

After the attack, the police took photographs of the front gate at the Thornton residence. The leash was still hanging from the top of the gate and fence where it had been tied. A few months later, the State charged Michael Thornton with four counts of violating Henry County’s 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. He pled guilty to all charges. The Mattas now seek to hold the Thorntons' landlord, Tyner, liable for the injuries inflicted by the Thorntons' dogs.

2. The issue before us on certiorari review is whether the Court of Appeals erred by reversing the trial court’s grant of summary judgment in favor of Tyner. As an initial matter, the Court of Appeals erred in its analysis of Tyner’s motion for summary judgment because it applied OCGA § 51-2-7 to Tyner. By its plain terms, OCGA § 51-2-7 applies only to "[a] person who owns or keeps a vicious or dangerous animal." OCGA § 51-2-7 (emphasis supplied).⁴ Because there is no contention (let alone evidence) that Tyner, as an out-of-possession landlord, either owned or kept the dogs at issue here, OCGA § 51-2-7 does not apply in the Mattas' case against him. See, e.g., Oertel v. Chi Psi Fraternity , 239 Ga. App. 147, 152, 521 S.E.2d 71 (1999) (affirming summary judgment in favor of national fraternity chapter in dog-bite case because there was no evidence that national chapter owned or kept the dog); see also Martin v. Johnson-Lemon , 271 Ga. 120, 123, 516 S.E.2d 66 (1999) (Court of Appeals erred by implicitly analyzing an action against an out-of-possession landlord under an inapplicable code section and not OCGA § 44-7-14 ). Indeed, the Court of Appeals erred when it effectively wrote the phrase "or landlord" into OCGA § 51-2-7 where no such language exists. See Conley v. Pate , ––– Ga. ––––, ––––, 825 S.E.2d 135, 2019 WL 1006317, at *2 n.3, 2019 Ga. LEXIS 140 (Ga. Mar. 4, 2019) ("[W]e cannot rewrite a statute that ‘almost’ fits a case to make it apply where it clearly does not."). And that error was significant, because the Court of Appeals relied on OCGA § 51-2-7 to bypass the Mattas' burden to show that Tyner was aware of the dogs' temperament or propensity to do harm (see Division 3 below).⁵ By extending the statute to apply not only to pet owners and keepers, but also to landlords, the Court of Appeals erroneously presumed Tyner’s awareness of the dogs' allegedly vicious propensity. That application of OCGA § 51-2-7, and the analysis that flowed from it, was erroneous, as was the Court of Appeals' conclusion that "the trial court erred in granting summary judgment on the ground that the plaintiffs failed to produce evidence that the Thorntons' dogs had ever displayed any vicious propensities." Matta-Troncoso , 343 Ga. App. at 68, 806 S.E.2d 10.

3. Identifying this misguided application of OCGA § 51-2-7 does not, however, resolve the question before us today. That is because the Court of Appeals went on to hold that the grant of summary judgment in Tyner’s favor was erroneous even under OCGA § 44-7-14 because "there exists a genuine issue of material fact as to whether [Matta-Troncoso’s] injuries arose from the Thorntons' dogs escaping their enclosure and then attacking [Matta-Troncoso] as a result of Tyner’s failure to repair the latch on the fence’s front gate."

Matta-Troncoso , 343 Ga. App. at 70, 806 S.E.2d 10. We disagree. Looking to OCGA § 44-7-14 and the record before us, we conclude that there was no genuine issue of material fact as to Tyner’s liability because there is no evidence that Tyner was aware that the Thorntons' dogs had any harmful tendencies or propensities, and it therefore was not reasonably foreseeable that Matta-Troncoso’s injuries could "aris[e] from" Tyner’s failure to repair the broken gate latch.

The Mattas brought a negligence claim against Tyner under OCGA § 44-7-14, a statute that pertains to out-of-possession landlords and governs claims of negligence for failure to repair. Assuming that OCGA § 44-7-14 can be...