*1 tional harm to the child. Key argues termina was insufficient evidence to show
3. there finding parental After a of in the interest of the child. tion was best inability, ter determine whether misconduct or mination is in the best interest the child, the trial court must taking child,
of the into consideration physical, mental, and moral condition and needs emotional including § 15- for a secure and stable home. OCGA need (a). parental same factors which show existence “Those inability finding that the termina misconduct or can also rights defaulting parent parental in the child’s would be tion of best C., 12, 18 interest.” In the Interest of E. 522) (1997). Additionally, juvenile court is authorized to consider pro the child’s need for a stable home and the detrimental effects longed L., 114, 117 care. In the Interest foster of M. of the entire record show The facts set out above and our review juvenile convincing evidence to that there was clear and Key’s rights finding parental would be in court’s that termination of the best interest child. McMurray,
Judgment J., J, concur. Ruffin, P. affirmed. 2, 1999. Decided June Angela appellant. Gill, Brown, Brown & Y. for Attorney Deputy Baker, General, Dunn, E. Dennis R. Thurbert Attorney Joy, Attorney General, General, William C. Senior Assistant Attorney Sgrosso, General, Blount, D. Shalen A. Assistant Ernest for appellee.
A99A0649. SUPAN GRIFFIN et al. Presiding Judge. McMurray, Joey nine-year- their D. Griffin and Karen on behalf of inju- brought against son, Griffin, old Bo an action Lavern for by ries Bo Griffin sustained when he was attacked summary judg- dog. Supan “Rottweiler and Chow mix” ment under moved for Georgia’s so-called “first rule on the that he basis The trial had no of this to bite. granted Supan’s application motion, denied and this Court court this interlocutory Supan’s Supan’s appeal. We affirm because evidence of neighbor, to a who was menaced four or five of statement dogs, including young Griffin, less than a month that bit Bo necessary before the keep child, attack on this “to do whatever was ... attacking” raises issues of material fact Supan’s prior knowledge dogs’ tendency as to 921). Wasik, humans. See McBride v. Joey during deposition D. Griffin testified that he and his two Troy, driving adjacent sons, minor Bo and were aon road to the *2 Supan place they upon home when came a motor vehicle collision involving 14-year-old Supan’s Supan. Joey Lavern son, Eddie D. Grif- “straddling cycle [and that] fin discovered that a car was a motor [Supan] right edge Eddie road.” the placed road, was on the side of the on the
Joey Supan driving D. Griffin observed that Eddie had been motorcycle leg up.” Joey and that his was “messed D. Griffin Supan Supan
Eddie in his truck and asked Eddie if he Joey “want[ed Griffin] [Supan’s] D. to take him down to his house [and] yes, please.” They Supan’s he said then set out for home. As the (four approached Supan dogs Griffin truck residence, several five) began barking. Supan Joey came outside and Eddie informed D. dogs Joey Griffin bite, that the would not so D. Griffin exited his began walking Supan Young truck and Eddie to the house. Bo Griffin footsteps. followed in his father’s Supan’s
Meanwhile, Eddie mother came out of the house and Joey dogs assured D. Griffin that the said, would not bite. She “don’t worry dogs.” Joey about the D. Griffin then turned and instructed young three-year-old Bo Griffin to return to the truck and sit with his Troy crying brother, Griffin, who was at the time. Bo Griffin turned comply, immediately Supan’s but was attacked Lavern dog. “charged [Bo “Rottweiler and Chow mix” This animal at him Griffin] leg, and attacked him back[,] from the him his pushing] ground shaking Joey him across the and him.” D. Grif- attacking fin to a injured forced the off his son and rushed the child hospital emergency room. Supan’s
Lavern affidavit indicates that the attack on Bo Griffin was the first he had of his to bite. The- challenged Griffins this statement with an affidavit from Steven Lee Supan’s neighbor. deposed Keller, Lavern Keller about three Supan’s dog months before Lavern Griffin, bit Bo a number of (four all) (Keller’s) Supan’s dogs five came onto his home’s front porch, including the “Rottweiler and Chow mix” that bit Bo “viciously (Keller) dog,” [Keller’s] attacked small and him threatened fangs, growls with “bared and attack behavior.” Keller deposed by opening closing “able, that he was door, his screen finally get Supan dogs to leave his residence.” Keller further deposed they [the dogs] that, “because vicious, were so he followed dogs they Supan.” went back to the home of Lavern Keller explained that he then Supan
approached Mr. and told Mr. they dogs were vicious and that incident with acknowledged up[; that] Mr. should be locked dogs [Keller] problem that if the ever and told were a property, [Keller’s] was neces- to do whatever came back on sary [Keller’s] attacking and off of ... property.
Held: dogs’ report regarding Supan’s prior vicious and
Steven Keller’s judice brings property the case sub on Keller’s holding Wasik, in McBride v. within this Court’s supra. supra, Wasik, Court determined was In McBride v. which this prior governed by pet state 51-2-7, that defendant owner’s OCGA plaintiff, concerning without ment a desire for his to attack anyone, proof raised issues had ever bitten subsequent fact to that defendant’s for his material plaintiff attack on that based on defendant’s (2). people. Applying Id. at 244-245 judice, logic state *3 same in the case sub we find that Lavern Supan’s dog Keller, three months bit Bo ment to Steven about before necessary Griffin, for “to ... to Keller do whatever was attacking” material fact as to from raises issues of tendency Supan’s prior dogs’ humans. of his This distinguishes judice proof court the case sub from the recent whole (510 120), App. Walker, in decision Hamilton v. 235 Ga. 635 SE2d narrowly dog’saggressive menacing where this Court behavior remains held that a despite legislative
insufficient, revision of Geor (OCGA 51-2-7) gia’s dog liability § 1985, in to show the bite statute propensity animal’s to bite. Supan’s property Bo on
Evidence that Griffin was Lavern invitee, visitor-licensee, Samaritan” than also dis- “Good rather as a tinguishes simple negligence. this case from cases based regarding proof Supan’s prior knowledge With Lavern of his judice tendencies, the true test of in the case is sub Supan’s superior knowledge dog’s temperament. See (2) (478 432); App. 595, Cook, Pickard v. 223 Ga. 596 SE2d Sutton v. 310). (243 (1), App. Accordingly, Sutton, 145 Ga. 22 25 SE2d under (1985), authority absolutely of OCGA 51-2-7 the trial court was summary denying Supan’s correct defendant Lavern motion for judgment allowing by jury. to this case be resolved Judgment Pope, Johnson, J., J., Smith, C. P. affirmed. Ruffin Eldridge, JJ., Andrews, J., dissents. concur.
407 dissenting. Judge, Andrews, to infer that record sufficient there is no evidence Because Supan, dog, have known knew should the owner of propensity by denying being, trial court erred human to bite a summary judgment. motion resulting damages from For the Griffins to recover required prove they to under were Bo the the “first bite suffered have known knew or should rule complained particular dog’spropensity to act which caused do the 120) App. injury. Walker, v. Hamilton 877) (1998); App. 772, Mooney, 234 Durham v. (1998). injury particular in this case was act which caused necessary prove to mean it was a Supan This does not human to do known of his injury infer issue, in order to at “but exact same act that caused requisite knowledge one incident that there must be at least the would cause a
prudent person anticipate to the actual incident injury.” 65, Brennan, 773; caused the Id. at Torrance 658) (1993). Although incident known exactly issue, at it owner need have like the incident the nevertheless the not been type must of the as the incident at issue before be same injury requisite knowledge will which caused the incident consistently “[T]his 68. has held ascribed to the owner. Id. at Court be that resulted prior occasion, have, the same act which must on a done injury comprising Hamilton, 235 Ga. in the the tort action.” example, people, App. at For was known to chase 635. where motorcycle, a lack of evi- chased a car or there was but never have owner knew or should dence an inference that the motorcycle and cause known that the to chase a Similarly, display known it to crash. Id. at 635. where a beings, menacing behavior toward human but being, to bite never bitten a human Adair, 148 a Ga. will not be the owner. Banks v. ascribed to (1978); Hamilton, 636; Durham, at 773. *4 summary Supan judgment, an
In of his filed motion stating knowledge dog’spropensity to no the affidavit that he had of judgment, being. opposition summary bite a human Griffins to neighbor Supan, Keller, a of who stated filed an affidavit from Steven day prior bitten, four five that three months to the Bo Griffin was or Griffin) Supan’s dogs (including res- came to his that bit Bo fangs, dog, idence, him with “bared attacked his and threatened growls and attack behavior.” Keller further stated on day Supan Supan the incident and told occurred, this incident he told up. dogs Keller said his were vicious and should be locked
that problem “acknowledged dogs Supan that were a and told that [his] dogs property, [him] if the ever came back on to do that necessary keep dogs [his] opinion in to from attack- whatever was dogs ing property.” actually [his] not and Keller did claim that the off that him, bit there no evidence this occurred. attacked or is Supan The Keller’s statement that told concludes that necessary opinion keep dogs [his] in him “to whatever to do attacking” jury Supan’s knowledge from his in issue “as to creates dogs’tendency absolutely no evidence to attack humans.” There is Supan an this case to inference that known that the human at issue had to attack or bite a being. during The did not attack or Keller bite inci- by any dent in affidavit, described Keller nor is there evidence anyone prior had attacked bitten to Bo Griffin. Supan’s dogs problem statement to Keller that the were a and that necessary Keller should do whatever was to them from attack- ing nothing Supan’s acknowledgment showed more than of the inci- just dogs dent which Keller had described to him which the displayed menacing attacked Keller’s behavior toward Keller by baring fangs growling in their what Keller characterized as “attack behavior.” Supan most,
At statement Keller showed that knew displayed menacing had behavior which Keller character- Supan ized as a threat to attack him and showed knew the had actually dog. interpret Supan’s attacked Keller’s To statement as evi- knowledge dog’spropensity dence that he had —being any a human without evidence that the — anyone sophistry. attacked or bitten is sheer It creates an infer- pure conjecture speculation, possibility, ence based which this recognized Court has is insufficient to create issue of fact. Wellington Products, Heinsimer v. Leisure 7) (1998). opposition by Moreover, to the inference drawn majority, Supan gave positive, testimony unrebutted that he had no to bite a human In consider- ing summary judgment, may a motion for a fact which be inferred, by probative is demanded, but value not circumstantial evidence has no against positive, unrebutted evidence no such fact sought 582; exists. Crouch, be inferred Id. Beeson App. 578, 580 only by majority other basis for the inference drawn attack displayed is the evidence that knew his menac- ing Keller, toward characterized Keller as attack behav- dog. ior, and had But attacked Keller’s to draw the inference on this long-standing precedent contradicts basis “first bite” in which this
409 menacing dog’s toward known behavior has held that neither a Court beings sufficient known on other animals are nor its attacks human pro- knowledge dog’s had that the owner the an inference to allow pensity being. dog’s ani- a A attacks on other human bite pro- dog put has a to owner on notice that are insufficient an mals being. App. pensity Hamilton, at a 235 Ga. attack to bite or knowledge consistently also held that an owner’s This Court has 636. menacing dog previously displayed behav- that his has beings support an inference is not sufficient to toward human ior that the pensity pro- dog the had a should have known that owner knew or being. App. injure Banks, Ga. bite, a human 148 attack, to App. App. 773; 636; Durham, 234 Ga. at Hamilton, Ga. at 255; at 235 (495 Kvasny, App. compare (1998) (where 162, 163 SE2d 230 Ga. Johnson v. dog she the bite issue that owner admitted after the something happen”). example, in Star- like would For “knew that this 214) (1970), despite App. ling Davis, 428, 429 v. 121 Ga. dog people, had not in which the chased but bitten known incidents refuge person a car to and an escape in which one had taken incident dog dog, this was evidence that we concluded not dog knowledge propensity a to a human owner had that the had 23) (1984), being. Beach, 736, In 737 Wellsv. 169 anyone, dog had dis- evidence played menacing that the had never but showed bitten slapped a child, toward that child had behavior dog dog pawed child, him, to the and at the it from causing Nevertheless, suffer concussion. child to fall down and a was to we concluded this known behavior insufficient establish being. knowledge a owner’s to bite human App. 772, Hamilton, Durham, In and although growled, displayed threat- at issue had barked they ening menacing people, never bitten behavior toward had anyone, “first rule this known and we found under the inference was that the owners not sufficient to an propensity known to bite a knew or should have being. majority’s repeated Moreover, to the references human fact that the apparently mix,” in an “Rottweiler Chow known effort to bolster the inference that dog’s completely propensity bite, are irrelevant. This Court dog’s provide no has held breed and size evidence Stanger propensity Cato, owner had to bite. Wasik, cites McBride v. 921) (1986) controlling authority of the inference that had there was evidence knew known that his or should have a human we bite that the McBride concluded to bite a owner though human previously even there was no evidence that the anyone. conclusion,
bitten We reached this however, on present facts that no bear resemblance to the facts in the case. Although previ- which bit the victim in McBride had never ously person, dog.” bitten or attacked a it was a “trained attack Id. There was evidence that the owner had commanded yelling, the the attack wife, the victim’s “Kill the bitch!” and that dog charged on this command but was called off the owner *6 it before that, reached the victim’s wife. Id. Additional evidence showed shortly bitten, before the victim was the owner had said that hoped dog got [the “he out and went over there and killed vic- tim].” dog previously charged leaped Id. at 245. The had also upon knocking ground. numerous small children, them to the Id. at 244. The evidence in McBride showed far who, more than an owner Supan, only dog like knew that his had attacked another animal and engaged menacing aggressive person. behavior toward a It dog specifically showed an owner who knew his trained for and ability willingness injure had This was being, being. the to attack and a human enough, previous without a bite or attack on a human support an inference that the owner knew or should have dog propensity being. known that the 245. See also had a to bite a human Id. at Bowen, Sanders v. 196 Ga. 645-646 908) (1990) (a reasonable inference could be made that an owner of a dog aggressive trained to vicious, be and attack-oriented so it could fight money, dog’spropensity for knew or should have known of the being though previously any- to bite a human even it had not bitten (where one); dog Torrance, at put completely person’s leaving its mouth around a arm marks, red jumped person rip person’s on another and used its teeth to pants, “nipped” person and had another buttocks, on the this was suf- previous support finding ficient, without a bite, a verdict knowledge owner being). to bite a Supan’s dog fight- cases, Unlike these ing dog, “nipped” people, was neither a trained attack or dog previously grabbed people nor had the mouth, with its ripped people’s Supan clothes with its teeth. knew only aggressive engaged that his had attacked Keller’s and had menacing behavior toward Keller. Finally, majority coup grace delivers a de to the “first bite” premises liability against rule in the context of a claim a owner. majority The victim, concludes that the Bo who was bitten at (as opposed residence, was a “Good Samaritan” invitee to a visitor-licensee) at the residence. The then holds that: “With proof regarding Supan’s prior knowledge of liability judice tendencies, the true test of in the case sub is Lavern Supan’s superior knowledge dog’stemperament.” This test dis- required long-standing rule, evidence of which “first bite” cards the prior occasion, had bitten a the human on a owner’s liability type could of act before or done the same place, majority’s new test allows In its attach the second bite. superior liability on the owner’s to attach for first bite based “temperament.” “vicious tendencies” or Supan, never bitten or whose have words, other owners like menacing displayed anyone, who know their have but attacked or — might person which be toward a behavior tendency subjectively display tem- of vicious characterized as — liability subject perament for the first bite. are now overruling long- implicitly majority opinion has the effect regardless precedent. standing rule, Under the “first bite” “first bite” “dog made under the Griffins’ claim is construed as whether premises § statute, 51-2-7, statute, OCGA or under § 51-2-7, § 51-3-1, Under there OCGA the result is the same. OCGA finding is no evidence to known that his propensity Durham, had a to bite a human 773; Hamilton, at 635. Under OCGA knowledge” conjunction (applying “superior rule in with 51-3-1 finding rule), no evidence to “first bite” there is to bite a knew or should have known his had a *7 making superior knowledge it
human; therefore,
fore-
had no
being. Stanger,
a
to him that the
would bite human
182
seeable
Dayton
Corp.,
442,
499; Hackett
Hudson
at
SE2d
v.
(382
180) (1989).1
444
In the absence of evidence to
a
summary
statute,
under
entitled to
cause of action
either
judgment.
Corp. Haskins,
Lau’s
Decided June Cert. for. Tisinger, Tisinger, Greer, Jarrell, & Vance Glenn M. Kenneth B. appellant. for Crawford, Araguel, appellees. Jr.,
Patrick J.
A99A0875. NICHOLS v. THE STATE. Johnson, Chief Judge. aggravated upon Thomas Nichols was convicted of assault police felony police pos- officer, two counts of obstruction of officers, during carrying session of a knife concealed dence the commission aof crime and weapon. appeals, challenging sufficiency He of the evi- supporting aggravated felony assault and the two obstruc- tion convictions. police verdict,
Viewed to the evidence shows that a stopped patrol officer his car talk with Nichols and another man. When the officer asked to identification, see Nichols said he did not any patted pocket. have arm, As Nichols moved his the officer coat, saw beneath his Nichols had a knife in a leather holder attached to his belt. The officer told Nichols to raise his arms so he safety purposes. began could remove the knife for When the officer grabbed knife, remove the Nichols reached down and the officer’s grasp away hand. The officer was able to the knife and throw it Nichols, who then ran from the scene. backup
A backup officer arrived in time to see Nichols flee. The original backup and the officer chased after Nichols. When the officer caught him, Nichols tried to strike the officer with his fist and wres- Eventually tled with him. the two officers were able to subdue initially handcuff *8 Nichols. addition knife taken from Nich- dagger clipped ols, the officers found a to Nichols’ boot and two pockets. knives
1. Nichols’ claim that there is insufficient evidence to felony Felony convictions of of a obstruction is without merit. obstruction police person knowingly wilfully officer is committed when a opposes any resists, obstructs, law enforcement officer in the law- discharge by offering doing ful of his official duties violence to the (b); officer. State, OCGA 16-10-24 Pearson v.