Georgia remains one of the top 10 states in the nation for dog bites and other dog-related injury claims, according to the Insurance Information Institute. In 2014, homeowner’s insurance policies paid out $12.2 million for dog-related injury claims in Georgia with an average cost per claim of $31,497. Nationwide, man’s best friend accounted for more than one-third of all homeowner’s insurance liability claims paid out in 2014, which cost in excess of $530 million. While the typical case that comes to mind involves an aggressive or vicious dog biting someone, even otherwise friendly, family dogs can subject their owners to liability. So what does Georgia law say about liability for dog-related injuries such as dog bites?
Sometimes known as a “one free bite” jurisdiction, Georgia law does not in fact require that a dog has previously bitten someone or otherwise shown aggression in order for the owner to be held liable for injuries caused by their dog. In fact, the Georgia Court of Appeals has held that even knowledge of a prior bite may not give the owner reason to anticipate a subsequent bite that occurs under different circumstances. See, Rowlette v. Paul, 219 Ga. App. 597, 466 S.E.2d 37 (1995). Where dog bite or other dog-related injuries are concerned, courts look at the specific facts and circumstances of the case to determine whether there is evidence of prior, similar behavior that may have caused a reasonably prudent owner to anticipate the incident that caused the injury.
In two recent decisions, the Court of Appeals affirmed Georgia’s well-settled rule that dog owners may only be held liable for damages in a negligence action if the owner had knowledge that the dog had the propensity to do the particular act that caused injury to the complaining party. See, Green v. Willson, ___ Ga. App. ___, 773 S.E.2d 872 (2015) and Steagald v. Eason, ___ S.E. 2d ____, 2015 WL 5846996 (Oct. 8, 2015). “It is not enough… that the possessor of an animal has reason to know that it has the propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts.” Rowlette, supra at 599 (emphasis added).
The owner does not need knowledge of the dog’s propensity to do the exact same act that caused the injury in issue, but “[t]here must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” Durham v. Mooney, 234 Ga. App. 772, 773, 507 S.E.2d 877 (1998). For example, in Green v. Wilson, supra, the plaintiff worked for a company that provided house cleaning services to the defendant. When the cleaners came, they would wait outside while the defendant locked her dog in a room. When they were ready to clean that room, the defendant would move her dog, sometimes physically dragging the dog to another room as the dog lunged, barked, and growled at the cleaners. After securing the dog in the other room, the defendant would tell the housecleaners that they were “safe.” On the day that the plaintiff was injured, she had arrived to find the dog outside the house in a fenced enclosure, barking. As plaintiff got out of her van, the dog jumped the fence and ran towards her. As the plaintiff jumped back into her van to escape the dog, she injured her arm. The Court of Appeals held that the dog’s prior behavior of aggressively lunging at the cleaners while restrained raised a genuine issue of material fact as to whether a prudent person would anticipate that the dog would chase someone if unrestrained. The Court found no meaningful distinction between the two occasions since in both instances the dog was attempting to move towards someone in an aggressive manner.
However, the Court of Appeals has repeatedly declined to establish a rule that merely menacing or threatening behavior are sufficient to show a dog’s propensity to bite, noting the well-recognized adage that a dog’s bark is often worse than its bite. Hamilton v. Walker, 235 Ga. App 635, 510 S.E.2d 120 (1998) (citing Banks v. Adair, 148 Ga. App. 254, 255, 251 S.E.2d 88 (1978)); see also, Wade v. American Nat. Ins. Co., 246 Ga. App. 458, 459, 540 S.E.2d 671 (2000). In order to create a jury issue in a dog bite case, the dog owner must have knowledge of behavior that rises above normal barking, chasing, or other territorial dog behavior. Barking and growling are not sufficient to show that a dog has a vicious propensity. Durham, supra. Even evidence that a dog growled, barked and otherwise appeared threatening to strangers approaching the house or yard but had never bitten anyone in the past was insufficient to create a question of fact regarding the dog’s propensity to bite. Hamilton, supra; see also, Wade, supra (a guard dog’s growling, chasing and other threatening actions towards strangers that approached the dog’s enclosure were insufficient to place the owner on notice of a propensity to bite).
What constitutes normal territorial or even menacing behavior versus viciousness and aggression will depend on the specific circumstances of the case. In Thurmond v. Saffo, 238 Ga. App. 687, 687-688, 520 S.E.2d 43 (1999), when the plaintiff entered the defendants’ garage, their dog growled and rushed her, biting her and causing her to fall down. Approximately one week earlier, when a neighbor walked into the defendants’ garage, the dog barked and walked towards the neighbor with a look in its eyes that led the neighbor to believe the dog was going to attack her. The neighbor jumped over a car to escape and later told the defendants about the incident. Id. at 688. The defendant’s knowledge that their dog had tried (even unsuccessfully) to attack another person without provocation, just a week earlier and under very similar circumstances to the incident in which the plaintiff was injured, was sufficient to create a jury question as to whether the defendants should have anticipated the attack on the plaintiff. Id.
However, in Rowlette, the fact that the dog had previously bitten someone was not sufficient as a matter of law to put the owner on notice of the dog’s propensity to bite someone under completely different circumstances. In that case, the plaintiff was bitten by the defendant’s dog as she entered the defendant’s backyard to assess the property for the county tax assessor’s office. Rowlette, supra at 599. A year earlier, the dog had bitten the defendant’s uncle when he startled the sleeping dog and was dressed in a white dust mask and a hat. Id. at 599. The Court of Appeals held that the prior instance of the dog biting someone who was dressed strangely and startled the dog did not put the owners on notice that the dog would launch an unprovoked attack on a stranger coming into the yard. Id. In other words, the fact that the dog had bitten someone when it was startled or threatened was not enough to put the owners on notice that the dog would bite someone without provocation.
In the recently decided case of Steagald v. Eason, 2015 WL 5846996, the plaintiff was attacked and bitten when she walked into her neighbor’s yard to meet his dog. A week earlier, on the dog’s first day at the house, the plaintiff’s husband had gone over to meet the dog. As he approached the dog in its pen, it cowered down and appeared uneasy. He held his hand up to the dog, and it snapped, growled and barked at him. The plaintiff’s husband did not mention the incident to his wife. Noting that even the plaintiff’s husband conceded that the dog’s behavior, including snapping at him, was not unusual behavior for a dog that was afraid and in an unfamiliar location, the Court of Appeals held that “the first-day snapping incidents did not put [the defendants] on notice that the dog would launch an unprovoked attack on a stranger coming into the yard.” Similar to the situation presented in Rowlette, the dog snapping at someone when it felt threatened was not enough to put the defendants on notice that the dog would bite someone without provocation.
In dog bite and dog-related injury cases, in order to survive summary judgment, the plaintiff must demonstrate prior conduct that was substantially similar to the incident that caused the injury. A dog aggressively lunging towards housecleaners while being restrained by its owner was similar to the dog’s behavior in chasing or moving aggressively towards one of the housecleaners when the dog was unrestrained. Green, supra. A dog barking and moving aggressively towards a neighbor who was passing through the defendant’s garage was similar to the dog’s behavior in growling, rushing, and biting another guest who walked through the garage. Thurmond, supra. However, where prior incidents were not sufficiently similar to the incident that caused the injury, the Court of Appeals has held as a matter of law that they do not show the defendant dog owner knew or should have known of the dog’s propensity to do the act that resulted in the plaintiff’s injury. See, e.g., Kringle v. Elliott, 301 Ga. App. 1, 3, 686 S.E.2d 665 (2009) (dog that bit plaintiff previously had only attacked animals); Huff v. Dyer, 297 Ga. App. 761, 763, 678 S.E.2d 206 (2009) (dog that bit plaintiff had previously barked when children were near it); Phiel v. Boston, 262 Ga. App. 814, 816-817, 586 S.E.2d 718 (2003) (dog that bit plaintiff had previously charged down defendant’s driveway and growled at a person); Hamilton v. Walker, 235 Ga. App. 635-636, 510 S.E.2d 120 (1998) (dog that bit plaintiff had previously growled, barked and appeared threatening to strangers); Marshall v. Person, 176 Ga.App. 542, 543, 336 S.E.2d 380 (1985) (dog that jumped on plaintiff, a stranger to it, previously had jumped on its owners in a display of “frolicsome affection”).
The Court will likely look not only at the particular behavior of the dog but also at the circumstances that precipitated the behavior. In Green and Thurmond, the Court of Appeals found that there was a jury question, in part, because the dog’s prior behavior was aggressive and unprovoked. Yet in Rowlette and Steagald, the Court noted that the only prior instances of menacing behavior occurred when the dog was threatened or afraid. Indeed, just as the Court has long recognized that a dog’s bark is often worse than its bite, the Georgia Court of Appeals also seems to have recognized that purely defensive behavior by a dog that feels threatened will not, as a matter of law, put a person on notice that the dog has the propensity to launch an aggressive and unprovoked attack.
Tracey W. Pruiett