*1 30, 2001 Decided November Jr., Thompson,
William R. appellant. for Paris, B. Assis- Rebecca Attorney, T. District Joseph Campbell, Attorney, tant District for appellee. (two cases). et al.
A01A1480, A01A1481. JOHNSTON v. WARENDH (556 SE2d Pope, Presiding Judge. filed suit Lori Johnston against and Per-Olof Warendh
Agneta Johnston, brother, seeking damages injuries and her Robert two when she was attacked Agneta Warendh sustained with Michelle the home the Johnstons shared Rottweilers outside denied in the Johnstons’ motions for part Berndt. The trial court issues of mate- genuine the existence summary judgment, finding premises” were “confined on rial fact as to whether their granted the local ordinance. The court meaning within the damages as to partial summary judgment punitive motions for for inter- attorney applications fees. After the defendants’ granting locutory appeal, affirm. summary party ruling
When on a motion given the motion should be the benefit of all reasonable opposing doubt, and all inferences and the court should construe the evidence Lau’s toward that favorably party. and conclusions therefrom most Haskins, Moore v. Corp. Goldome Credit Corp., construed, shows that Johnston and
So the evidence Robert dogs. dogs’ Berndt each owned one of Neither owners Warendhs, home on the date December question, home, their who used to live in the Roswell went there to retrieve doorbell, rang knocked or and Lori Agneta mail. Warendh either Agneta deposed Johnston answered the door. Warendh she Johnston, door, observed the behind Lori who shut the dogs barking it, out. The the door slip dogs pushed open and tried to reopened one of the col- grab dogs’ ran out of the house. Lori Johnston tried lars, the animal. At least one of the but she was unable restrain her arms Warendh, biting on her and jumping attacked able to eventually get and abdomen. Lori Johnston was inside and secure in the kitchen. them
Case No. A01A1480 In1. her appeal, Johnston contends that she was entitled summary the Warendhs’ claim that she violated OCGA disagree. 51-2-7. We
That provides: statute *2 A person who owns or keeps a vicious or dangerous animal of kind who, by careless management byor allowing go to at liberty, causes to injury another person who does not provoke the injury by his own act may be liable in damages to the person so In injured. proving pro- vicious it pensity, shall be sufficient to show that the animal was to required heel or on a by leash an ordinance of a city, county, or consolidated government, and that the said animal was' at the time of the occurrence not at heel or on a leash. Oertel v. Chi Psi Fraternity,
See (2) (521 147, 239 Ga. App. 148-149 71) (1999). SE2d As a preliminary matter, the Warendhs’ case against Lori John- ston them requires to prove that she kept dogs, because there was evidence that she did not actually own either of the animals. Although her answer Lori Johnston denied that she kept dogs, she did not argue the point her motion for summary nor did she enumerate as error the trial court’s implicit finding that record raised an issue as to her keeping the Our dogs. review of the record shows that a jury issue exists as to whether she was at the time of the See, incident.1 Kahn, Goodman v. e.g., 182 (356 757) (1987). 724, Ga. App. 725 SE2d See generally Ludington, Annotation, Who “Harbors” or “Keeps” Dog Under Animal Liability (2001). Statute, 64 ALR4th 963
The first sentence of OCGA 51-2-7 has applied dog bite cases in Georgia since Cobb’s Code of 1863, 1863. After appellate courts modified the statute asserting that it was “but a restate- ment of the law, common and at common law ... it necessary to show, not only that the animal was vicious or dangerous, but also the owner knew this fact. The scienter gist was the of the action.” Harvey Buchanan, v. (49 281) (1904).2 384, 121 Ga. 385 SE 1 case, If this were contraband, a criminal we would allow a possession find that Lori Johnston had generally State, constructive of them. See Tran v. 246 (6) (539 153, App. (2) (535 Ga. State, 160 Deering SE2d v. 244 Ga. 4) (2000). SE2d authority, decisions, As Justice Cobb cited two point, one of which was on Reed v. (22 Express Co., Southern 95 Ga. Friedlander, SE See also Sinclair v. 398) (1944) (construction law). codifying of a statute common More- Joiner,
Accord Clark must be dangerous propensity over, the defendant’s Wade v. plaintiff. knowledge possessed than such greater Co., 458, American Nat. Ins.
(2000). rule, the scienter Assembly expanded upon the General statute to add rule,” amending the “first bite also known as the based violation sentence, creates the second which of scienter. As proof and requires ordinance county a local or wish, if counties, allows cities and amended, OCGA 51-2-7 allowed at com- than protection people higher degree afford a 177, 178 Thompson, Fields v. mon law. See 390) (1989).3 (378 SE2d City occurred led to this lawsuit
The incident which A a so-called “leash law.” Roswell, which has enacted municipality in the record and reads the ordinance was included certified copy as follows: limits custody city of a within
Any having premises to confine the shall be authorized of someone owner of the or on *3 permitted any shall not be by Dogs the owner. streets, city premises in the off the alleys place on a leash not more than dog, except of the custodian of the in a competent person. six feet the care of long Code, of Roswell 4-29. City § ordi- that she did not violate the Roswell argues
Lori Johnston premises that the “on the merely dogs nance it be because did not the require dogs the She that the ordinance owner.” contends and, therefore, at the time of the attack to be “at heel or on a leash” Additionally, not held under OCGA 51-2-7. may she liable § on the technically that the were argues injured, so no violation of their owners when Warendh the ordinance occurred. First, contemplates find that the statute restric- disagree.
We
we
the one in this case. We further conclude
tive ordinances such as
in
running
large
whether
the
at
jury
a
issue remains as to
violation of the Roswell ordinance.
cities,
protection
Densely
example, may
provide
populated
elect to
additional
humans,
regulations. Having
may
differ
while rural counties
not see a need for additional
parts
the division of the
of the state is reminiscent of
ent
standards
in different
counties,”
coun
and “no-fence
also known as stock
state in earlier times into “fence counties”
Hamilton,
seq.;
R. v.
McKenzie v. In (1991), Tutak v. Fairley, reversed a grant summary judgment in a similar case and found that a issue remained as to whether a Glynn County ordinance prohibiting dogs at running large had been violated and whether a dog’s owners should be held liable for injuries by caused case, dog animal. broke loose from a in chain the own- backyard, ers’ ran into their front yard, and bit a child. Id. We found that “[although physically within the time, boundaries of the appellees’ property clearly it was not (1) (Cam- Clark, ‘confined’ there.” Id. at 308. Cf. at 422 County den “ ordinance specifically defined “confined” as being ”) omitted). ‘merely on the property owner’ (emphasis Similarly, the ordinance in the case at bar requires hav- ing custody of a on the premises of the owner “confine or on the premises of someone authorized the owner.” Code, (Emphasis supplied.) Roswell 4-29. There was evidence that were not confined at the time of attack, ran through the door and were yard. Thus, loose the front the evidence of record does not negate allegation that dogs were viola- ordinance, tion of the applicable and whether Lori Johnston should be held liable under OCGA 51-2-7 is a jury issue. The trial court properly denied Lori Johnston’s motion for summary judgment. addition,
2. In the appellees to raise a attempt jury issue under the first sentence of OCGA 51-2-7 arguing that Lori Johnston had scienter because she deposed she had heard people say that Rottweilers are “aggressive dogs.” They buttress their argument by to their attaching appellate brief copies miscellaneous pieces of information, apparently gleaned from Internet, and a newspaper article, McClam, Erin “Rottweilers Take Lead Fatal Attacks Dogs,” Journal, Atlanta September 2000, p. A3. The unauthenti- cated assert, exhibits inter alia, that there were 13 dog bite-related fatalities Georgia between 1979 and 1996 and that Rottweilers were involved in more fatalities than other breed.
Exhibits attached to briefs on appeal are not part of the record and cannot be considered as evidence. SurgiJet, Hicks, Inc. v. There is no showing *4 record that the defendants had knowledge any of the statistics asserted in the various hearsay articles and on the various Web Moreover, pages. Georgia has, law in the past, adhered to a rule that the breed of dog a is irrelevant to liability. Cato, v. Stanger 182 Ga. (356 97) (1987) (Doberman App. 498 SE2d pinscher).
Our Georgia statute addresses injuries caused by vicious or dan- gerous animals. OCGA 51-2-7. “A vicious § animal is individual of a species, vicious or a vicious individual of a harmless species.” (7 Phillips DeWald, 732, v. 79 Ga. 735 SE Traditionally, 678 of a species all harmless hence presumed
courts nature of a proof dangerous particular dog proof required that individual’s presump of his owner’s deviation See, Co., e.g., Montgomery Maryland tive v. Cas. 169 harmlessness. (151 (19 746, State, 111, Patton v. 93 Ga. 112 Ga. 748 SE SE Rottweilers and evi- appellees’ exhibits about bites are Georgia’s longstanding judicial offered to insistence that
dently rebut regardless are a harmless of animal of breed. But species previ- bites, ous the common law of change especially efforts to view 51-2-7, legislative changes of the 1985 to OCGA have not persuaded § See, Clark, majority of this Court. 242 judges e.g., App. (Ruffin, J., concurring specially); Griffin, 423 238 Ga. Supan App. (519 22) (1999) 404, (Andrews, J., SE2d dissenting); Hamilton v. (510 120) (1998) Walker, 635, (Banke, 235 Ga. App. SE2d Senior dissenting). Andrist, See Appellate Judge, Note: Is There (and Be) Should There “Bite” Left in Any Georgia’s Rule?, “First Bite” L. (arguing Rev. to retain traditional Georgia rule). “first bite” Even if we were able to consider the exhibits brief, attached appellees’ they would not be an adequate record to support argument the defendants should have known dogs’ dangerousness.4 The record does present not raise a issue under liability the first sentence of OCGA 51-2-7. §
A3. should affirmed if right it is reason. The appellees argue we should affirm because asserted a claim negligence statutory addition to their claims under OCGA 51- § 2-7. The are correct appellees the decision on which they rely, (163 Miller, Callaway v. 118 Ga. App. (1968), SE2d squarely holds that OCGA 51-2-7 is not an remedy exhaustive and that an § injured can plaintiff pursue claim in as well. negligence But one judge is, concurred therefore, decision physical precedent The cited only. precedents jurisdictions from other persuasive. are not
OCGA 51-2-7 awas codification of the common law as it existed at the time. An extensive gloss common law has been added statute over the decades. The appellees have cited no precedent, other than Callaway, none, 118 Ga. and we have found which provides for dog bites other than OCGA 51-2-7 statute, and the premises liability OCGA 51-3-1. See Webb v. Dan 860) (1998) (scienter forth, 234 Ga. 908) (1990) (scienter Bowen, But see Sanders v. aggressiveness says found from “habits of and attack which common sense would not be con objects” previous humans); Wasik, despite biting fined to inanimate McBride v. 921) (1986) (scienter dog). because animal trained attack *5 liable). for landowner A claim was not in the case at under Liability asserted bar. OCGA 51-2-7 has been discussed Divisions and There is no claim for separate above. negligence.
Case No. A01A1481 agree 4. We also with the trial court that a exists as jury issue to whether Robert Johnston confined his the Roswell dog required by Although ordinance. Robert Johnston had confined the to his dog work, he he home when left for knew that he did not live alone and that his sister or their roommate could coming going be into and out the Nevertheless, house his absence. he took no to steps prevent the from dog having outside, access to the doors leading but rather allowed him to roam freely throughout the house. The evidence showed that the around dog weighed pounds while Lori Johnston weighed something Moreover, less. the dog responded to primarily Robert Johnston’s presents commands. This an issue as to whether reasonably Johnston could to expected keep dog confined Therefore, Robert Johnston’s absence. the trial court correctly denied Robert Johnston’s motion for summary judgment on the issue of whether he with the complied Tutak, Roswell ordinance. See at 308.
The dissent notes that Robert had no prior knowledge dog try would to But we escape. previously found that “[i]f an animal is at running large violation of a local ordinance someone, when it bites the owner’s knowledge propensity its to bite (2). Oertel, is immaterial.” Johnston’s Robert dog’s propensity his to is escape likewise immaterial under the circumstances of this case. Moreover, we find that a jury issue exists on the issue of
whether Lori Johnston can be considered Robert Johnston’s agent in this instance. “Agency is the relationship which results from the manifestation consent one to another the other shall act on his behalf subject control, and to his and consent (Citation omitted.) toso act.” and punctuation Merck, Smith v. (1) (a) (57 An agency relationship refer, “may does, and most perhaps often to that relation created by express law, contract or implied one whereby party delegates the transaction of some lawful business with more or less discretion- ary power another, to who undertakes the affair manage (Citations, render to him an account thereof.” punctuation omitted.) emphasis Id. The existence of an agency can be shown circumstances, relations, through apparent and the conduct of the parties. Stallings Sylvania Ford-Mercury, 242 Ga. App. apparently position confining
Robert Johnston takes to the house was under local ordinance. But adequate house, necessarily because he allowed the free access to the he keep relied his sister in his absence to from out. getting And the evidence shows that she undertook to do so while she talked Warendh. This raises an issue as to whether Lori Johnston acted as her And agent escaping. brother’s feed, fact that did not his sister rely upon Robert Johnston water, or walk his is not determinative of whether she acted as *6 his confined. agent dogs
Accordingly, we affirm the trial court’s denial of the Johnstons’ summary judgment. motions for Blackburn, J., Judgments C. Ruffin, Eldridge and affirmed.
Miller, JJ., Andrews, J, J., Mikell, concur. P. dissent.
MlKELL, Judge, dissenting. I A01A1480,1 While concur in the majority’s opinion Case No. respectfully must dissent in Case I No. A01A1481 as believe that no jury issue liability exists as to Mr. Johnston’s under OCGA 51-2-7.
1. It is that when undisputed work, Mr. Johnston left for his was secure inside Additionally, his home. Mr. Johnston deposed that he had no knowledge of the dogs rushing through the door in the Therefore, past. the Warendhs cannot establish “careless manage- ment” “allowing or go liberty” on the of Mr. part Johnston, summary judgment and he is entitled to on the OCGA 51-2-7 claim. Furthermore,
2. contrary to the Warendhs’ argument majority’s I not opinion, do believe that an agency relationship existed between Mr. Johnston and his sister that would result his liability for the incident. OCGA 10-6-1 “The provides: relation of principal and arises agent whenever one person, expressly or implication, authorizes another to act for him subsequently rati- fies the acts of another his behalf.” There is no evidence that Mr. Johnston authorized sister his to act for him or that he somehow rati- fied any bailee, such actions. She been a but there is noth- in the ing record to show a relationship which would vicarious impart to the brother. The record shows that Ms. Johnston attempted to confine the with gates within the home in an effort to protect furniture; however, her such action was taken for her own benefit and did not render her Mr. Johnston’s Ms. agent. deposed that she was very rarely alone with the and that she never fed or walked them. The evidence is significantly thus different Bowen, Sanders from that 644-645 908) (1990), in which the defendant’s sons had designated “take care of” pit their father’s Bad I bulldog, Eye. reject agent acted as her brother’s that Ms. Johnston contention Warendhs’ by providing occasion when their owners on water to summary partial Accordingly, denial of I would reverse not home. Johnston. to Robert 30, 2001. Decided November Lloyd appellants. Gray, Hedrick, Jr., B. & Edenfield, Hedrick appellees. Fletcher, Gibson, Gibson, John W. Deal & v. THE STATE. A01A1614. LOPEZ Presiding Judge. Smith, by Appling County grand jury Lopez indicted an Vincent robbery. convicted, his amended motion of armed He was
one count appeals, asserting denied, and he five enumerations for new trial was Finding error, affirm. of error.1 general Lopez error, raises the two enumerations
grounds. parties agree that the State’s case rests circum- stantial evidence. *7 required. evidence, however, A convic-
Proof tion direct is not upon circumstantial evidence if the be based proved hypothesis are not consistent with the facts every hypothesis guilt, but exclude other reasonable but the guilt § 24-4-6. When the evidence of the accused. OCGA probative test, meets this circumstantial evidence is as evidence, direct question and whether this burden has been met is a jury.
for the When is authorized to find though every evidence, circumstantial, excluded hypothesis except guilt, insupportable reasonable the defendant’s the ver- dict will not be disturbed unless the verdict is Further, as a matter of law. while circumstantial evidence every hypothesis reasonable must exclude but the every guilt, defendant’s the evidence need not exclude infer- hypothesis. ence (Citations emphasis original.) Hayes punctuation omitted; App. 857,
State, 249 Ga. arguments Lopez failed to subdivide or number the in his brief in We note has (c) (1). manner, Appeals Rule 27 To the extent that we are able to violation of Court raised, specific arguments we have addressed them. discern the