Weinstein v. Holmes

• Decision Date: 31 January 2018
• Docket Number: A17A1526
• Parties: WEINSTEIN v. HOLMES et al.
• Court: Georgia Court of Appeals

344 Ga.App. 391

810 S.E.2d 320

WEINSTEIN

v.HOLMES et al.

A17A1526

Court of Appeals of Georgia.

January 31, 2018

The Dickinson Law Firm, Curtis J. Dickinson, Laura M. Barron, for appellant.

Dodson & Associates, Christina N. Sears, for appellees.

Miller, Presiding Judge. This case involves the availability of punitive damages for negligence after Laurie Weinstein was injured by dogs owned by Courtney and David Holmes when those dogs allegedly attacked Teddy, a Yorkshire Terrier, Weinstein was walking.¹ The Holmeses moved for partial summary judgment on the issue of punitive damages, arguing that there was no evidence that they had knowledge of the risk of an attack because there were no prior instances that would have put them on notice. The trial court granted the motion for partial summary judgment, finding that a single prior incident was insufficient to establish an entire want of care or conscious indifference to the consequences. This appeal followed, and we now reverse the trial court’s order on the motion for partial summary judgment because we find that there was sufficient evidence for the issue of punitive damages to go to a jury.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Custer v. Coward , 293 Ga. App. 316, 317, 667 S.E.2d 135 (2008).

So viewed, the evidence shows that, on May 9, 2013, Weinstein walked her son and daughter-in-law’s Yorkshire Terrier, Teddy, to their neighborhood dog park. At the time, Teddy was about eleven years old and weighed slightly over five pounds. As they approached the dog park, Weinstein noticed Courtney Holmes with her two larger dogs—a 75 pound Rhodesian Ridgeback named Lacy and a 40 pound beagle/lab mix named Callie—already within the gated area of the park. Weinstein asked Holmes if she and her dogs would be leaving soon, and Holmes shrugged her shoulders. A few moments later, Holmes put leashes on her dogs and, as she opened the gate to the park, the dogs charged out.

Weinstein was standing a "good distance" away from the gate because she did not want to be near the dogs as they came out. As the two dogs charged out of the park, Holmes had trouble holding on to them and she lost her grasp on Lacy’s leash. Weinstein tried to pick Teddy up as the three dogs were running around, but either the larger dogs knocked her down or she became tangled in their leashes and fell. When she stood, she noticed bruises and a paw mark on her arm, and that Teddy’s eye was bleeding.

Weinstein asked a neighbor to call 911 and then went to find her son. By that time, the "damage was already done," and Teddy was "half gone." An animal control officer came to the scene, pronounced Teddy dead, and gave Holmes two citations, one for having a dog off leash and another for dog biting dog.² Although the animal control officer had already pronounced Teddy dead, the Weinsteins took Teddy to the vet that evening, and the veterinarian noted that Teddy had a broken neck, puncture wounds on his face

, and had been bleeding from his left eye, mouth, and nose.

Weinstein submitted evidence that another neighbor had been involved in a prior incident with Holmes’s dogs. On that day, Holmes lost control of her dogs and they charged aggressively at a woman walking her dog and also started to attack that dog. The neighbor restrained Holmes’s dogs, and he believed that they would have injured the other dog had he not intervened. The neighbor’s wife stated that she avoided Holmes when she saw Holmes walking the dogs because she did not think Holmes could control the dogs, as they often pulled Holmes as Holmes held the leashes.

Holmes denied that her dogs injured Teddy and testified that Weinstein fell on Teddy when she got tangled in the leashes as the dogs chased each other. Holmes further denied any previous incidents with either dog and stated that she never had trouble controlling her dogs when she walked them. Additionally, Holmes stated that "unless [Lacy] saw a dog that she wanted to play with, [Lacy] was usually very calm and not aggressive." She admitted, however, that she knew her dogs liked to play with other dogs and that, on the day Teddy died, her dogs had not had the opportunity to get their energy out before Weinstein asked them to leave the park. She acknowledged that, during the incident, Callie was pulling her, and she was unable to control Lacy.

The trial court granted summary judgment to Holmes on the issue of punitive damages, finding that the single other incident was insufficient to establish that the Holmeses acted with an entire want of care or conscious indifference to the consequences of their actions. The trial court noted that the previous incident had not resulted in an injury, and thus the Holmeses had no knowledge of the risk to Weinstein.

In her sole enumeration of error, Weinstein argues that the trial court erred in granting summary judgment on the issue of punitive damages because the conflicting evidence in the record warranted jury consideration. We agree.

It is well settled that

a dog owner is liable for damages only if the owner has knowledge that the dog has the propensity to do the particular act ... which caused injury to the complaining party. A plaintiff must show that the dog had the propensity to do the act and that the owner had knowledge of that propensity. Although this traditionally has been described as Georgia’s "first bite rule," the rule does not literally require a first bite. Instead, the true test of liability is the owner’s superior knowledge of [her] dog’s temperament.

(Citations and punctuation omitted.) Raith v. Blanchard , 271 Ga. App. 723, 724 (1), 611 S.E.2d 75 (2005).

To obtain punitive damages in such cases, however, the plaintiff must show "by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." OCGA § 51-12-5.1 (b). "Whether the tort was sufficiently aggravating to authorize punitive damages is generally a jury question." (Citation and punctuation omitted.) Weller v. Blake , 315 Ga. App. 214, 219-220 (3) (a), 726 S.E.2d 698 (2012).

The issue, therefore, is whether Holmes had knowledge of her dogs’ propensity to charge uncontrollably and aggressively toward other dogs and people. Further, to permit the issue of punitive damages to reach the jury, we need only conclude that there is a genuine issue of fact as to whether Holmes’s actions showed "willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." (Citation and punctuation omitted.) Powell v. Ferreira , 198 Ga. App. 465, 402 S.E.2d 85 (1991).

"[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 and punctuation omitted.) Steagald v. Eason , 300 Ga. 717, 720, 797 S.E.2d 838 (2017). Nevertheless, Weinstein need not show that Holmes was aware of an identical incident, "as long as there is an incident or incidents which would put a prudent [woman] on notice to anticipate the event which occurred." (Citation and punctuation omitted.) Torrance v. Brennan , 209 Ga. App. 65, 67-68 (2), 432 S.E.2d 658 (1993). In other words, the prior incident need not be identical as long as it puts the owner on notice of the risk of an actual attack. Steagald , supra, 300 Ga. at 721, 797 S.E.2d 838. Thus, "when the evidence shows that an owner or keeper knows of such an attempted [attack] ... it may...