343 Ga. App. 63
Ga. Ct. App.2017Background
- Tenant Michael and Lakeisha Thornton leased Tyner’s house; property had a fenced backyard with a front gate whose latch was broken by a lawn service and reported to Tyner, who did not repair it.
- Tenants improvised by tying the gate closed and weighting it; years later their Labrador escaped and was killed; they then acquired two Pit Bulls that were kept outside by day and crated at night and had shown no prior aggression.
- On October 24, 2013 the two Pit Bulls escaped the yard through the front gate, attacked Maria Matta-Troncoso and her small dogs; police fatally shot the Pit Bulls; Matta-Troncoso suffered severe injuries.
- Michael Thornton was later criminally charged and pleaded guilty to county ordinance violations, including allowing animals to run at large and keeping a vicious animal.
- Plaintiffs sued the Thorntons and added Tyner (landlord), alleging Tyner’s failure to repair the gate latch proximately caused the dogs’ escape and the attack; trial court granted summary judgment for Tyner; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proof of the dogs’ vicious propensity was required to hold Tyner liable under OCGA § 51-2-7 | Matta-Troncoso: Ordinance evidence (dogs running at large) satisfies OCGA § 51-2-7 so no separate vicious-propensity proof required | Tyner: Trial court correctly required evidence of prior vicious propensity; plaintiffs produced none | Reversed trial court: ordinance violation (dogs not at heel/on leash) relieves plaintiff of proving prior vicious propensity under OCGA § 51-2-7 |
| Whether plaintiffs properly proved existence/applicability of the Henry County ordinance at summary judgment | Plaintiffs pointed to Thornton’s deposition, the criminal accusation, and his guilty pleas as evidence the ordinance existed and was violated | Tyner: Plaintiffs failed to produce a certified copy of the ordinance, so it cannot be considered | Court: Although certified ordinance would be better, Thornton’s testimony and the accusation raised a triable issue that the ordinance existed and was violated; plaintiff’s burden met at summary judgment stage |
| Whether out-of-possession landlord Tyner owed any duty or could be liable under OCGA § 44-7-14 | Plaintiffs: Landlord can be liable if injuries "arise" from landlord’s failure to keep premises in repair (the broken latch) | Tyner: As out-of-possession landlord, no duty to third parties for tenants’ negligence; statute limits liability to injuries on premises | Court: OCGA § 44-7-14 makes landlord responsible for damages arising from failure to keep premises in repair; plaintiffs alleged injuries flowed from the unrepaired latch; duty and causation are triable issues |
| Whether proximate cause precluded landlord liability as a matter of law | Plaintiffs: There is a factual dispute whether Tyner’s failure to repair the latch was a proximate cause of the escape and attack | Tyner: Plaintiffs cannot show proximate cause linking the broken latch to the attack | Court: Proximate cause is a jury question; genuine issue of material fact exists, so summary judgment was inappropriate |
Key Cases Cited
- Martin v. Herrington Mill, LP, 316 Ga. App. 696 (de novo review and summary judgment standards)
- Cowart v. Widener, 287 Ga. 622 (summary judgment appellate standard)
- Holcomb v. Long, 329 Ga. App. 515 (view evidence in light most favorable to nonmovant)
- Oertel v. Chi Psi Fraternity, 239 Ga. App. 147 (ordinance proof can substitute for proving vicious propensity)
- Cowan v. Carillo, 331 Ga. App. 387 (elements under OCGA § 51-2-7; ordinance showing relieves plaintiff of proving prior vicious propensity)
- Thorsen v. Saber, 288 Ga. 18 (city/county ordinances must be alleged and proved; certified copy normally required)
- Colquitt v. Rowland, 265 Ga. 905 (landlord liability framework under OCGA § 44-7-14)
- Zwiren v. Thompson, 276 Ga. 498 (proximate cause is generally a jury question)