We had a case recently where my client was invited over to a neighbor's house and walked up to their front fence gate. The neighbor's dogs on the other side of the fence jumped up and pushed open the gate, slamming it into my client's face causing serious injuries. The dogs weren't vicious – in fact they were 8-month old puppies that were excited to see her. They might've been the sweetest dogs ever, but my client had serious injuries to her face, we had decent homeowner's policy limits from the dog owners, and anyone with dogs outside should likely have the duty of keeping their fence properly maintained so dogs stay restrained per the law.
I thought we had a great case because my plain reading of the second sentence of Georgia's dog bite/injury statute was that it absolves us of proving that the dogs were vicious, so just by the dogs being unrestrained for a moment before the gate injured our client, this meets the plain meaning requirement set forth by the statute. Consider OCGA § 51-2-7, which provides in pertinent part as follows:
“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...”
The statute seems clear as day as to its actual language but the Georgia Supreme Court in 2020 decided S&S Towing v. Charnota, 309 Ga. 117, 844 S.E.2d 730 (Ga. 2020). This case put an unforeseen spin on the law and created new law that the legislature clearly did not write in. Consider the following:
In 1985, the General Assembly amended the statute by adding the second sentence: "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 ... and the said animal was at the time of the occurrence not at heel or on a leash."
Starting with the text of the statute, Charnota explains “we observe that although neither the first nor the second sentence of OCGA § 51-2-7 speaks of the owner's knowledge of the animal's vicious or dangerous nature, the Court has nevertheless concluded that scienter (the prior knowledge element) was carried over from the common law as an essential element of a claim under OCGA § 51-2-7.” So even though prior knowledge isn't mentioned in either sentence, the Georgia Supreme Court imputes it because of its history and application in common law.
“Based on the statutory text and history, it appears that, when a local jurisdiction passes an ordinance requiring that owners restrain their animals and it is shown that the animal at issue was unrestrained at the time of the incident, the second sentence of OCGA § 51-2-7 displaces the common law presumption that a dog is a harmless species and instead defines such unrestrained animals as "vicious." However, the second sentence by its text does not displace the requirement in the common law, which our courts have read into the statute's first sentence, that a plaintiff seeking to recover under OCGA § 51-2-7 must also prove that the owner had knowledge of the vicious or dangerous propensity of the animal.”
The Georgia Supreme Court continued: “Therefore, reading the two sentences together, and consistent with our case law construing the statute, in situations where a plaintiff has shown that a local ordinance required the animal to be restrained and the animal was not restrained at the time of the incident, a plaintiff seeking to recover under OCGA § 51-2-7 must still prove scienter and can do so in two ways: (1) By showing that the owner had knowledge of the animal's vicious propensity as defined by the common law, OR (2) by showing that the owner knew that the animal was unrestrained at the time of the injury (Note: In the footnotes of the case, the Court strikes down every lower court ruling that says unrestraint absolves requirement to show prior viciousness). In addition to scienter, a plaintiff seeking to recover under OCGA § 51-2-7 must also show that the owner carelessly managed or allowed the animal to go at liberty; the animal caused the injury; and the injured party did not provoke the injury by his own act.” S&S Towing v. Charnota, 309 Ga. 117, 844 S.E.2d 730 (Ga. 2020).
Based on this Georgia Supreme Court ruling I would have had to show that the dog owners in our case knew the dog was out of the fence and unrestrained when my client was injured OR we must show that the homeowners had knowledge of prior circumstances where the dogs had pushed open the gate thereby being unrestrained. We couldn't prove either. If we had filed suit, there is no question we would have lost the case on summary judgment and the client recovered nothing. Luckily, the homeowner's insurance company might not have known this case law and we convinced them to settle the case for $230,000. It worked out for this case and we were thankful to get what we could for our client.
But think about the Charnota case. It involved a fenced in tow yard business where they kept a junkyard dog outside on guard after hours. The business owners left for the day, and at night the dog escaped and mauled a man and his leashed dog down the street. Since the owners had no knowledge the dog had escaped and there were no prior escape occurrences, the Georgia Supreme Court ruled no recovery could be made under the statute.
So what if someone's newly saved rescue dog is put outside in a fenced yard while the owner is watching tv, and the dog escapes the fence through a hole and viciously attacks and kills a child playing in the street? Without facts showing the dog had escaped before, the Charnota ruling prevents recovery for the child and family.