S&S TOWING & RECOVERY, LTD v. CHARNOTA, 309 Ga. 117

Background

On Nov. 7, 2015, Charnota was walking his leashed dog when another dog, Tucker, that had escaped from S&S Towing’s lot, killed Charnota’s dog and then severely injured Charnota. Tucker had been off-leash in violation of Paulding County’s leash ordinance.
Charnota sued S&S Towing and the Sealses under OCGA § 51-2-7 (owner/keeper liability for vicious animals) and other theories, seeking damages for injuries and medical expenses.
OCGA § 51-2-7’s second sentence (added 1985) says that proof an animal was required to be leashed by ordinance but was not at the time is sufficient to prove vicious propensity.
S&S moved to exclude any reliance on that statutory presumption, arguing it creates an irrebuttable presumption (eliminating scienter) and thus violates procedural due process.
The trial court upheld the statute; S&S sought interlocutory appeal to challenge the statute’s constitutionality. The Georgia Supreme Court granted review on the due process question and remanded for further proceedings, affirming the trial court.

Issues

Issue	Plaintiff's Argument (Charnota)	Defendant's Argument (S&S Towing)	Held
Whether OCGA § 51-2-7’s second sentence violates procedural due process by creating an irrebuttable presumption	The statute is constitutional; it provides an additional, permissible way to prove viciousness and does not bar rebuttal	The statute creates a conclusive presumption of scienter (owner knowledge) and denies opportunity to rebut, violating due process	The statute does not violate procedural due process; the second sentence is definitional and, at most, creates a rebuttable presumption
Whether the 1985 amendment displaces the common-law scienter requirement	The statute should be read with the common-law requirement retained; scienter may be proven by owner knowledge of viciousness or by knowledge the animal was unrestrained	The amendment eliminates the need to prove owner knowledge of vicious propensity	The Court reads the two sentences together: scienter remains an element, but proof an animal was running at large in violation of an ordinance provides an alternative means to prove viciousness (or a rebuttable presumption)
Whether the presumption (if any) is rebuttable or conclusive	The second sentence is rebuttable; owner can present evidence they lacked knowledge or did not know animal was unrestrained	The second sentence operates as a conclusive, irrebuttable presumption	The Court treats the presumption as rebuttable—owner may introduce contrary evidence; plaintiffs still must prove the other elements of § 51-2-7
Whether the statutory scheme has a rational basis and gives adequate notice	Legislature rationally modified common law; the 1985 enactment gives constructive notice	The legislative definition is arbitrary or unconstitutional as applied to deprivation of property/liberty interests	The Court finds a rational basis for the Legislature to define “vicious” in this way and notes the long-enacted statute supplied notice

Key Cases Cited

Stanley v. Illinois, 405 U.S. 645 (irrebuttable presumption of unwed fathers’ unfitness unconstitutional)
Leary v. United States, 395 U.S. 6 (statutory presumption regarding narcotics possession unconstitutional)
Tot v. United States, 319 U.S. 463 (statutory presumption that possession proves interstate commerce violated due process)
Weinberger v. Salfi, 422 U.S. 749 (distinguishing civil regulatory schemes from criminal/family liberty cases; permitting generalized rules)
Cobb County School Dist. v. Barker, 271 Ga. 35 (statutory construction presumptively consistent with due process)
Steagald v. Eason, 300 Ga. 717 (scienter as essential element under § 51-2-7 as interpreted by Georgia courts)
Sinclair v. Friedlander, 197 Ga. 797 (owner knowledge required under predecessor statutes despite statutory silence)
Harvey v. Buchanan, 121 Ga. 384 (common-law scienter requirement for animal liability)
Johnston v. Warendh, 252 Ga. App. 674 (Court of Appeals decision treating ordinance violation as sufficing without scienter)
Cowan v. Carillo, 331 Ga. App. 387 (evidence of local leash-law violation relieves plaintiff from proving owner knowledge)