2020 Georgia Code
Title 51 - Torts
Chapter 2 - Imputable Negligence
§ 51-2-7. Liability of Owner or Keeper of Vicious or Dangerous Animal for Injuries Caused by Animal

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. The foregoing sentence shall not apply to domesticated fowl including roosters with spurs. The foregoing sentence shall not apply to domesticated livestock.

(Orig. Code 1863, § 2907; Code 1868, § 2913; Code 1873, § 2964; Code 1882, § 2964; Civil Code 1895, § 3821; Civil Code 1910, § 4417; Code 1933, § 105-110; Ga. L. 1985, p. 1033, § 1.)

- Vicious dogs, T. 4, C. 8, Art. 3.

Care and confinement of wild animals, T. 27, C. 5.

- For annual survey article on tort law, see 52 Mercer L. Rev. 421 (2000). For survey article on law of torts, see 59 Mercer L. Rev. 397 (2007). For annual survey on law of torts, see 61 Mercer L. Rev. 335 (2009). For annual survey of tort law, see 68 Mercer L. Rev. 279 (2016). For note, "Is There (and Should There Be) Any 'Bite' Left in Georgia's 'First Bite' Rule?," see 34 Ga. L. Rev. 1343 (2000).

ANALYSIS

• General Consideration
• Knowledge
• Violation of Ordinances
• Domesticated Livestock
• Procedure

This section is but a restatement of common law. Rodriguez v. Newby, 131 Ga. App. 651, 206 S.E.2d 585 (1974).

The 1985 amendment of O.C.G.A. § 51-2-7,, substituting "may" for "shall" in the first sentence, brought the amount of statutory liability more in line with the liability imposed by the common law since the amendment did not purport to change the "first bite" rule, but rather supported the limited protection of the rule for pet owners by removing an inflexible strict liability standard. Hamilton v. Walker, 235 Ga. App. 635, 510 S.E.2d 120 (1998), overruled on other grounds by Steagald v. Eason, 2017 Ga. LEXIS 169 (Ga. 2017).

- Second sentence of O.C.G.A. § 51-2-7 regarding liability of an owner for a vicious or dangerous animal did not violate procedural due process because the owner could still produce evidence that the owner did not have knowledge of the animal's vicious nature or that the owner did not know that the animal was unrestrained at the time of the injury, and the plaintiff still had to prove the other elements of a claim under that statute, which satisfied the due process right of an opportunity to be heard; and the defendants had constructive notice of the presumption regarding an animal's viciousness as the second sentence of that Code section was enacted in 1985. S&S Towing & Recovery v. Charnota, Ga. , 844 S.E.2d 730 (2020).

To the extent that the second sentence of O.C.G.A. § 51-2-7 regarding liability of an owner for a vicious or dangerous animal could be considered a rebuttable presumption, procedural due process was not violated as a rational basis existed to allow local jurisdictions to determine based on the local conditions whether certain animals needed to be restrained and for the General Assembly to modify the common law and define a vicious animal as one that was not restrained according to the will of the local governmental body. S&S Towing & Recovery v. Charnota, Ga. , 844 S.E.2d 730 (2020).

- O.C.G.A. § 51-2-7 merely recognizes a duty to exercise ordinary care in the management and restraint of a vicious or dangerous animal for the protection of the public; ordinary care to restrain an animal requires the taking of reasonable measures to keep the animal restrained, and that, in turn, necessarily requires personal deliberation and judgment. What should be done always will depend to some extent on the circumstances and, for purposes of official immunity, that means that the duty cannot - when applied to a public officer - be characterized properly as a ministerial one; thus, the public officer is entitled to official immunity. Eshleman v. Key, 297 Ga. 364, 774 S.E.2d 96 (2015), overruled on other grounds, Rivera v. Washington, 2016 Ga. LEXIS 248 (Ga. 2016).

Section is not an exclusive basis for recovery when injury is caused by domestic animal. Callaway v. Miller, 118 Ga. App. 309, 163 S.E.2d 336 (1968).

- The owner of a vicious or dangerous animal, who allows the animal to go at liberty, is liable to one who sustains injury as a result of the vicious or dangerous tendency of the animal only in the event that the owner knows of the animal's vicious or dangerous character. Flowers v. Flowers, 118 Ga. App. 85, 162 S.E.2d 818 (1968); Sutton v. Sutton, 145 Ga. App. 22, 243 S.E.2d 310 (1978).

Under this section, which is but a restatement of the common law, to support an action for damages for injuries sustained by being bitten by a dog, it is necessary to show that the dog was vicious, and that the owner had knowledge of this fact. Hays v. Anchors, 71 Ga. App. 280, 30 S.E.2d 646 (1944); McCree v. Burks, 129 Ga. App. 678, 200 S.E.2d 491 (1973).

An owner of a domestic animal who allows it to go at liberty is liable under this section to one who sustains injury as a result of the vicious or dangerous tendency of the animal only in the event the owner knows of vicious or dangerous character. Starling v. Davis, 121 Ga. App. 428, 174 S.E.2d 214 (1970).

In order for a party to recover, it must appear that the animal had a propensity to do the act which caused the injury and that the defendant knew of it. McCree v. Burks, 129 Ga. App. 678, 200 S.E.2d 491 (1973); Pearce v. Shanks, 153 Ga. App. 693, 266 S.E.2d 353 (1980).

- There is no authority for the assertion that cat bite cases should be treated differently than dog bite cases. Fellers v. Carson, 182 Ga. App. 658, 356 S.E.2d 658, cert. denied, 182 Ga. App. 910, 356 S.E.2d 658 (1987).

- In an action by a woman seriously injured in a pit bull attack, the landlord of the dogs' owners was entitled to summary judgment despite the landowner's failure to fix a broken gate latch, O.C.G.A. § 44-7-14, because there was no evidence that the landlord was aware of the dogs' vicious propensities. The Court of Appeals erred in applying O.C.G.A. § 51-2-7 to the landlord and to presume such awareness because the statute applied only to owners and keepers of dangerous animals. Tyner v. Matta-Troncoso, 305 Ga. 480, 826 S.E.2d 100 (2019).

- In a suit involving two dogs fighting, the trial court erred in denying the plaintiffs' motion for summary judgment on the defendant's counterclaims because the defendant assumed the risk of harm as a matter of law by intervening in the dog fight with the defendant's bare hands. Saulsbury v. Wilson, 348 Ga. App. 557, 823 S.E.2d 867 (2019).

Although issues of negligence, lack of care in avoiding negligence of others, lack of care for one's own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, either for or against the complainant, when the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment. Saulsbury v. Wilson, 348 Ga. App. 557, 823 S.E.2d 867 (2019).

- When a police dog attacked the plaintiff's son, the officer's motion for summary judgment on the ground of official immunity was improperly denied because the officer, who was a dog handler for the police department, did not act with malice or an intent to injure anyone when the officer failed to secure the police dog outside the officer's home; and the duties that the officer was alleged to have violated were not ministerial ones, for which the officer would not have been entitled to immunity, because, although the duties reflected in O.C.G.A. § 51-2-7 and a county ordinance might be definite, they required an exercise of personal deliberation and judgment about what was reasonable regarding the restraint of the police dog. Eshleman v. Key, 297 Ga. 364, 774 S.E.2d 96 (2015), overruled on other grounds, Rivera v. Washington, 2016 Ga. LEXIS 248 (Ga. 2016).

Cited in Phillips v. Cleveland, 31 Ga. App. 206, 120 S.E. 639 (1923); Sinclair v. Friedlander, 197 Ga. 797, 30 S.E.2d 398 (1944); Rutherford v. Underwood, 84 Ga. App. 624, 66 S.E.2d 768 (1951); Thomas v. Richardson, 129 Ga. App. 834, 201 S.E.2d 653 (1973); Gordon v. Dawson, 146 Ga. App. 784, 247 S.E.2d 596 (1978); Rines v. Harris, 18 Bankr. 666 (Bankr. M.D. Ga. 1982); Smith v. Culver, 172 Ga. App. 183, 322 S.E.2d 294 (1984); McBride v. Wasik, 179 Ga. App. 244, 345 S.E.2d 921 (1986); Goodman v. Kahn, 182 Ga. App. 724, 356 S.E.2d 757 (1987); Gilbert v. Hudspeth, 182 Ga. App. 898, 357 S.E.2d 601 (1987); Pickard v. Cook, 223 Ga. App. 595, 478 S.E.2d 432 (1996); Bakhtiarnejad v. Cox Enters., 247 Ga. App. 205, 541 S.E.2d 33 (2000).

Knowledge

Owner's knowledge of dog's vicious propensity not immaterial when dog running at large.

- Supreme Court disapproved any court of appeals cases to the extent they held that the owner's knowledge of the animal's vicious propensity was immaterial when the animal was running at large in violation of a local ordinance, including Cowan v. Carillo, 331 Ga. App. 387 (2015); Stennette v. Miller, 316 Ga. App. 425 (2012); Huff v. Dyer, 297 Ga. App. 761 (2009); Johnston v. Warendh, 252 Ga. App. 674 (2001); and Oertel v. Chi Psi Fraternity, 239 Ga. App. 147 (1999). S&S Towing & Recovery v. Charnota, Ga. , 844 S.E.2d 730 (2020).

- Under O.C.G.A. § 51-2-7, the dog's dangerous character is at issue totally apart from the issue of the owner's knowledge of the dog's dangerous character; therefore, while the expert's report concluding that the dog was dangerous or potentially dangerous could not be relevant to the issue of knowledge because it was issued after the attack on the plaintiff, the fact that the dog was declared dangerous or potentially dangerous three weeks after the attack were relevant to whether the dog had dangerous propensities at the time of the attack. Torrance v. Brennan, 209 Ga. App. 65, 432 S.E.2d 658 (1993).

- If owner does not know of vicious and dangerous character of the owner's animal, the owner will not be liable for injury which is not usual and natural consequence to be anticipated from allowing an ordinary animal of that kind to go at large. Flowers v. Flowers, 118 Ga. App. 85, 162 S.E.2d 818 (1968).

In a wrongful death action based on the death of an infant caused by a dog, the dog owner was entitled to summary judgment on the parent's claim under O.C.G.A. § 51-2-7 because there was no evidence that the animal had ever attacked or bitten a human; the owner's rule that the dog stay outside unless accompanied by a person was a result of the dog's destruction of property, not due to any threat the dog posed to animals or humans. Harper v. Robinson, 263 Ga. App. 727, 589 S.E.2d 295 (2003).

In a personal injury suit brought by a visitor seeking damages for injuries incurred after being kicked by a horse, the owner of the real property was properly granted summary judgment since there was no evidence whatsoever that the owner was aware of any vicious propensity on the part of the horse; the owner filed an affidavit, stating that the owner boarded the horses for many years and never observed the horse who injured the visitor exhibit the propensity to run directly at any person or exhibit any violent, vicious, or dangerous behavior. Burns v. Leap, 285 Ga. App. 307, 645 S.E.2d 751 (2007).

Dog-bite victim sued the dog's owners, alleging the owners failed to warn the victim of the dog's vicious tendencies. As there was no evidence the dog had ever previously bitten or attacked anyone, and an owner's alleged statement that children would not "have to worry about getting bit" if the children stayed away from the owner's truck, where the dog was chained in the truck bed, was insufficient to establish the owners' knowledge of the dog's vicious propensity; thus, the owners were properly granted a directed verdict on this claim. Huff v. Dyer, 297 Ga. App. 761, 678 S.E.2d 206 (2009).

- Owner of dog may not be found liable for unforeseen and unforeseeable act of dog simply because dog was not under owner's direct control at the time the act took place. Fitzpatrick v. Henley, 154 Ga. App. 555, 269 S.E.2d 60 (1980).

- Under this section, it is still necessary, as at common law, to show not only that the animal is vicious or dangerous, but also that the owner or keeper knows of this fact. Harvey v. Buchanan, 121 Ga. 384, 49 S.E. 281 (1904).

Scienter is a necessary and a material fact which must be shown before there can be any finding of liability under this section. Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969); McCree v. Burks, 129 Ga. App. 678, 200 S.E.2d 491 (1973); Banks v. Adair, 148 Ga. App. 254, 251 S.E.2d 88 (1978).

When a plaintiff showed that a local ordinance required an animal to be restrained and the animal was not restrained at the time of the incident, a plaintiff seeking to recover had to prove scienter and could do so in two ways: by showing that the owner had knowledge of the animal's vicious propensity as defined by the common law or by showing that the owner knew that the animal was unrestrained at the time of the injury; and a plaintiff had to also show that the owner carelessly managed or allowed the animal to go at liberty; the animal caused the injury; and the injured party did not provoke the injury by plaintiff's own act. S&S Towing & Recovery v. Charnota, Ga. , 844 S.E.2d 730 (2020).

Proof of scienter is essential to a suit under this section. Johnson v. Hurt, 120 Ga. App. 761, 172 S.E.2d 201 (1969).

Proof that the owner of a dog either knew or should have known of the dog's propensity to do the particular act which caused injury to the complaining party is indispensable to recovery against the owner. Fitzpatrick v. Henley, 154 Ga. App. 555, 269 S.E.2d 60 (1980); Stanger v. Cato, 182 Ga. App. 498, 356 S.E.2d 97 (1987).

The size of a dog, its breed, and the fact that its owner keeps it restrained, does not establish any inference that the owner knows the dog to be dangerous. Freeman v. Farr, 184 Ga. App. 830, 363 S.E.2d 48 (1987).

Scienter requirement is not satisfied by dog owner's use of a restraining chain, or posting of "beware of dog" sign. Banks v. Adair, 148 Ga. App. 254, 251 S.E.2d 88 (1978).

- The simple fact that a dog is restrained on a chain may not be sufficient to establish the owner is free from liability for "careless management" under O.C.G.A. § 51-2-7. Freeman v. Farr, 184 Ga. App. 830, 363 S.E.2d 48 (1987).

Owner is not responsible for acts of dog if there is lack of scienter. Banks v. Adair, 148 Ga. App. 254, 251 S.E.2d 88 (1978).

In a typical dog bite case, regardless of whether the cause of action is based on the premises liability statute of O.C.G.A. § 51-3-1, or the dangerous animal liability statute of O.C.G.A. § 51-2-7, a plaintiff must produce evidence of the vicious propensity of the dog in order to show that the owner of the premises had superior knowledge of the danger. Custer v. Coward, 293 Ga. App. 316, 667 S.E.2d 135 (2008).

When there is a lack of scienter, even the breach of a leash law is not sufficient to hold the owner responsible for the acts of the dog. Turner v. Irvin, 146 Ga. App. 218, 246 S.E.2d 127 (1978); Fitzpatrick v. Henley, 154 Ga. App. 555, 269 S.E.2d 60 (1980).

- In a parent's personal injury action seeking to hold the dog owners liable for injury to the parent's son, the dog owners were entitled to summary judgment because there was no evidence that the dog ever displayed vicious behavior or evinced a propensity to bite anyone prior to biting the child as required for such an action. Swanson v. Tackling, 335 Ga. App. 810, 783 S.E.2d 167 (2016).

- It is not enough for liability under this section that the possessor of the animal know of a propensity to do harm in one or more specific ways; it is necessary that the possessor have reason to know of its propensity to do harm of the type which it inflicts, Carter v. Ide, 125 Ga. App. 557, 188 S.E.2d 275 (1972); Penick v. Grimsley, 130 Ga. App. 722, 204 S.E.2d 510 (1974); Banks v. Adair, 148 Ga. App. 254, 251 S.E.2d 88 (1978); Rowlette v. Paul, 219 Ga. App. 597, 466 S.E.2d 37 (1995); Clark v. Joiner, 242 Ga. App. 421, 530 S.E.2d 45 (2000).

- To support a recovery a plaintiff must show either actual or constructive knowledge by the defendant of the animal's danger to others. Flowers v. Flowers, 118 Ga. App. 85, 162 S.E.2d 818 (1968); Starling v. Davis, 121 Ga. App. 428, 174 S.E.2d 214 (1970).

- While this section does not set out how knowledge of the vicious nature of the animal may be acquired, under the common law this knowledge is presumed to exist when the animal involved belongs to a certain class of animals ferae naturae, such as lions, tigers, bears, wolves, baboons, apes, and monkeys. Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935).

When a person is injured by an attack of an animal ferae naturae, the negligence of the owner or keeper thereof is presumed because of the dangerous and ferocious propensities of a wild beast, such as a lion, tiger, leopard, bear, ape, baboon, and such wild beasts, and the law recognizes that safety lies only in keeping such animals perfectly secure. Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935).

- A propensity on the part of a dog to bite people is not one of the instincts common to the species of which every owner must be presumed to have notice. Starling v. Davis, 121 Ga. App. 428, 174 S.E.2d 214 (1970).

- In order to constitute notice to an owner or keeper of an animal's vicious or dangerous nature, there should be an incident or incidents which would put a prudent man on notice to anticipate the event which occurred. A single incident may not adequately place a person on notice. The test should be whether the one incident was of such nature as to cause a reasonably prudent person to believe that the animal was sufficiently dangerous as to be likely to cause an injury at a later time. Sutton v. Sutton, 145 Ga. App. 22, 243 S.E.2d 310 (1978).

If a dog has "friendly" intentions but has habits which because of its size or other characteristics make the dog dangerous, then it seems that such behavior should be controlled. However, it is necessary that the owner, as previously pointed out, have knowledge of the pattern of the animal's dangerous behavior before the owner can be held for failure to control the animal. Flowers v. Flowers, 118 Ga. App. 85, 162 S.E.2d 818 (1968).

- By presenting evidence that the defendant's animal was required to be on a leash by an ordinance of the applicable governmental body and that the animal was not on a leash at the time of the occurrence, the plaintiff presented sufficient evidence to prove the vicious propensity of the defendant's dog under O.C.G.A. § 51-2-7 section. The trial court erred by granting summary judgment in the defendant's favor based upon uncontroverted evidence that the defendant had no knowledge of the dog's vicious propensity. Fields v. Thompson, 190 Ga. App. 177, 378 S.E.2d 390 (1989).

Defendant pet-owner's statement to another, about three months before the defendant's dog bit the plaintiff, asking that person "to do whatever was necessary . . . to keep the dogs from attacking. . ." raises genuine issues of material fact as to the defendant's prior knowledge of the dogs' tendency to attack humans. Supan v. Griffin, 238 Ga. App. 404, 519 S.E.2d 22 (1999).

- When the worker who was knocked down, allegedly by the dog owners' dog, was unable to show that the dog had any dangerous propensities or that the dog owner knew about such propensities, the worker could not recover either under the dangerous animal liability statute, O.C.G.A. § 51-2-7, or the premises liability statute, O.C.G.A. § 51-3-1; however, the trial court erred in granting summary judgment to the dog owners as a genuine issue of material fact still existed regarding whether the one dog owner voluntarily undertook a duty to restrain the dogs on the owner's premises and, if so, whether that voluntary undertaking was negligently performed. Osowski v. Smith, 262 Ga. App. 538, 586 S.E.2d 71 (2003).

Trial court did not err in granting a dog owner summary judgment in a nurse's action under the dangerous animal liability statute, O.C.G.A. § 51-2-7, to recover for injuries the nurse sustained when the dog bit the nurse while the nurse was at the owner's home because there was no genuine issue of material fact that the dog was required to be at heel or on a leash or that the owner had knowledge that the dog had the propensity to bite a human; section 10-11(a)(1) of the Cobb County, Ga., animal control ordinance did not require the dog to be at heel or on a leash at the time of the incident. Stennette v. Miller, 316 Ga. App. 425, 729 S.E.2d 559 (2012).

Knowledge or notice that dog will behave ferociously toward other animals is not necessarily notice that it will attack human beings. Carter v. Ide, 125 Ga. App. 557, 188 S.E.2d 275 (1972); Banks v. Adair, 148 Ga. App. 254, 251 S.E.2d 88 (1978).

Knowledge of attacks on other animals, combined with the confinement by the defendant of the defendant's dog, is not sufficient to show the defendant's knowledge of the dog's vicious tendencies and therefore to create liability. Carter v. Ide, 125 Ga. App. 557, 188 S.E.2d 275 (1972).

Dog's menacing behavior alone is sufficient to apprise owner of animal's vicious propensities. Banks v. Adair, 148 Ga. App. 254, 251 S.E.2d 88 (1978).

- A dog's barking and growling amount, at most, to menacing behavior, and menacing behavior does not establish vicious propensity under O.C.G.A. § 51-2-7.. Durham v. Mooney, 234 Ga. App. 772, 507 S.E.2d 877 (1998).

- An owner's knowledge of a dog's frolicsome affection which is directed solely towards the owners is not such knowledge of a pattern of dangerous behavior as to put a reasonably prudent person on notice that the animal may cause injury by displaying such behavior towards another at a later date. Marshall v. Person, 176 Ga. App. 542, 336 S.E.2d 380 (1985).

Fact that dog owner invited or allowed neighbor to pet the owner's dog did not make the owner liable for the neighbor's subsequent dog bite injuries, since the owner had no prior knowledge, either actual or constructive, that the dog would bite the neighbor. Durham v. Mooney, 234 Ga. App. 772, 507 S.E.2d 877 (1998).

- A new trial was authorized when material fact issues existed as to the adequacy of an owner's management and control of the owner's dog. Evans-Watson v. Reese, 188 Ga. App. 292, 372 S.E.2d 675 (1988).

Even if the defendant's dog were vicious or dangerous, genuine issues of material fact existed as to whether the defendant was careless in the defendant's management of the dog and whether the plaintiff exercised reasonable care for the plaintiff's own safety since the dog was chained in an area accessible only by stepping over a 28" high guardrail and which was not an area where people would normally pass. Hackett v. Dayton Hudson Corp., 191 Ga. App. 442, 382 S.E.2d 180 (1989).

After the plaintiff was bitten by a dog, summary judgment was improperly granted in favor of the plaintiff as an issue of fact existed as to whether the dog was carelessly managed by the dog's owner at the time of the incident because the evidence that the dog was on a two-foot leash showed that the owner was in full compliance with the county ordinance's leash requirement; and, given that the owner was six feet tall and weighed 165 pounds, that the owner testified that the owner was physically capable of restraining the dog, and that there was no evidence that the dog had a history or propensity for vicious behavior, it was for a jury to decide whether the owner carelessly managed the dog at the time the dog bit the plaintiff. Myers v. Ogden, 343 Ga. App. 771, 807 S.E.2d 926 (2017), cert. denied, No. S18C0515, 2018 Ga. LEXIS 381 (Ga. 2018).

- The scienter requirement applies in the case of a dog specifically purchased and used for guarding commercial property. Wade v. American Nat'l Ins. Co., 246 Ga. App. 458, 540 S.E.2d 671 (2000).

- Trial court properly granted summary judgment to dog owners in dog bite case in light of the evidence of the victim's equal or superior knowledge of the dog's aggressive tendencies and assumption of the risk in petting the dog. Durham v. Mason, 256 Ga. App. 467, 568 S.E.2d 530 (2002).

Trial court did not err in granting a dog owner summary judgment in a roommate's action under the vicious animal statute, O.C.G.A. § 51-2-7, and the premises liability statute, O.C.G.A. § 51-3-1, to recover damages for injuries the roommate sustained when the owner's dog attacked the roommate inside the owner's townhouse because the roommate had knowledge of the dog's vicious propensity equal to that of the owner's; the roommate's own testimony was that the roommate was aware of the dog's previous unprovoked attack and was nervous when around the dog, presumably because the roommate was afraid that the dog could attack again. Stolte v. Hammack, 311 Ga. App. 710, 716 S.E.2d 796 (2011).

Violation of Ordinances

Violation of municipal ordinance not necessarily scienter.

- The fact that a mad dog is at large in violation of the municipal ordinance imposing a penalty upon its owner does not alter the rule that scienter must be shown. Langford v. Eskedor, 30 Ga. App. 799, 119 S.E. 431 (1923).

- By presenting evidence that the defendant's dog was required by ordinance to be on a leash and that the dog was not on a leash at the time of the occurrence, the plaintiff presented sufficient evidence to prove the vicious propensity of the dog under O.C.G.A. § 51-2-7. Oertel v. Chi Psi Fraternity, 239 Ga. App. 147, 521 S.E.2d 71 (1999).

- In the absence of any evidence showing that the owners of a dog had knowledge, prior to a mauling incident, that their dog had ever bitten another human being, the owners of the dog were not liable to the victim even though the dog's presence on the premises where the incident occurred was in violation of the county leash law. Brown v. Pierce, 176 Ga. App. 787, 338 S.E.2d 39 (1985).

- Defendants' dog was not "confined within the property limits of his owner or custodian," as required by a county ordinance, since, although the animal may have been physically within the boundaries of the defendants' property at the time the dog bit the plaintiffs' son, it had broken loose from its chain. Tutak v. Fairley, 198 Ga. App. 307, 401 S.E.2d 73 (1991).

When a dog's owner allowed the dog to run free inside the owner's house, including having access to doors leading outside the house, a genuine fact issue was present as to whether the dog was allowed to roam free in violation of a local ordinance. Johnston v. Warendh, 252 Ga. App. 674, 556 S.E.2d 867 (2001).

- Dog-bite victim sued the dog's owners, asserting a claim of negligence per se. As the dog had not been running at large, and the applicable ordinance did not protect people such as the victim who approached a dog that was restrained in the bed of a truck, the victim's motion for a directed verdict on this claim was properly denied. Huff v. Dyer, 297 Ga. App. 761, 678 S.E.2d 206 (2009).

Trial court erred in denying an animal care clinic's motion for summary judgment in a guest's action to recover damages for injuries the guest sustained when a dog bit the guest because the guest could not establish a vicious propensity pursuant to O.C.G.A. § 51-2-7 through a violation of the county animal ordinances; the dog was not running at large in violation of Cherokee County, Ga., Ordinance Sec. 10-29(a) at the time of the guest's injury. Abundant Animal Care, LLC v. Gray, 316 Ga. App. 193, 728 S.E.2d 822 (2012).

Domesticated Livestock

Bulls, stallions, and rams.

- The law does not regard bulls, stallions, and rams as being abnormally dangerous animals, but rather as animals routinely kept for stud purposes, so that the particular danger involved in their dangerous tendencies has become a normal incident of civilized life. Taft v. Taft, 209 Ga. App. 499, 433 S.E.2d 667 (1993).

- Sitter failed to present any evidence supporting the sitter's claim that the pet owners violated O.C.G.A. § 51-2-7 as there was no evidence that the owners engaged in careless management of the rooster by asking a professional pet sitter to take care of the rooster, which was kept in a coop, and warning the sitter that the rooster "will attack!" and that a garbage can lid could be useful in dealing with the rooster. Gilreath v. Smith, 340 Ga. App. 265, 797 S.E.2d 177 (2017).

- The owner of a runaway horse is generally liable for injuries caused by the horse. Phillips v. Dewald, 79 Ga. 732, 7 S.E. 151, 11 Am. St. R. 458 (1887).

Knowledge that horse has thrown rider does not show propensity to kick. Carter v. Ide, 125 Ga. App. 557, 188 S.E.2d 275 (1972).

Procedure

Sufficiency of pleadings.

- It is not sufficient to allege that the defendant knew or should have known that the defendant's dog was vicious, but facts showing knowledge, either actual or constructive, must be alleged. Hays v. Anchors, 71 Ga. App. 280, 30 S.E.2d 646 (1944).

When the plaintiff did not allege that the dog had ever made an attack on anyone prior to the time the dog injured the plaintiff, or had ever given the defendant cause to suspect that the dog might be vicious, except that the dog belonged to the breed of dogs known as German police dogs, and did not allege that the defendant was the owner of the dog, or that the defendant ever had the dog under the defendant's personal supervision or control, the petition did not set out a cause of action for damages sustained by the plaintiff when bitten by the dog. Hays v. Anchors, 71 Ga. App. 280, 30 S.E.2d 646 (1944).

Petition alleged that the plaintiff was employed by the defendant, and that the plaintiff was bitten by the dog on entering the premises, and that the defendant did not furnish the plaintiff with a safe place to work, in that keeping the dog endangered the plaintiff's life and safety while the plaintiff was in the performance of duties incident to the plaintiff's employment. When no facts were alleged to show that the defendant had knowledge that the dog was vicious, or that it would be unsafe for the plaintiff to work in the house with the dog present, the petition failed to set out a cause of action because of failure to allege facts showing the defendant knew, or should have known of the danger. Hays v. Anchors, 71 Ga. App. 280, 30 S.E.2d 646 (1944).

When in an action for damages it is alleged that the plaintiff was bitten and injured by a dog kept by the defendant, that the dog was vicious and accustomed to bite which was known to the defendant, the allegations are sufficient as against a general demurrer (now motion to dismiss). Greene v. Orr, 75 Ga. App. 673, 44 S.E.2d 273 (1947).

When a petition alleges that the defendant wrongfully and injuriously did keep a certain dog which the defendant knew was used and accustomed to attack and bite, and that the defendant negligently and carelessly managed the dog in that the defendant permitted the dog to go at liberty knowing the character of the dog and that the dog was vicious and that the defendant knew that the dog was vicious, the ferocious character of the dog and knowledge of the owner were sufficiently alleged as against a demurrer (now motion to dismiss). Greene v. Orr, 75 Ga. App. 673, 44 S.E.2d 273 (1947).

- Affidavit by the parent of a dog-bite victim that the dog's owner told the parent that "she knew something like this would happen" was admissible, and was evidence sufficient to preclude summary judgment for the defendants. Johnson v. Kvasny, 230 Ga. App. 162, 495 S.E.2d 651 (1998).

- Homeowner was not the owner or keeper of a dog who attacked a home health care provider in the homeowner's driveway; the provider admitted in the complaint and in a deposition that the dog was owned by the homeowner's child, who was visiting from another city. Therefore, the homeowner was not liable to the provider for the dog's attack under O.C.G.A. § 51-2-7. Cormier v. Willis, 313 Ga. App. 699, 722 S.E.2d 416 (2012).

- Trial court erred by granting partial summary judgment to an injured pedestrian as to negligence because, even if the dog owners violated the local ordinance, there was still a genuine issue of fact as to whether the owners were careless in the management of the owners' dog under O.C.G.A. § 51-2-7, so it could not be said that the owners were negligent as a matter of law. Askew v. Rogers, 326 Ga. App. 24, 755 S.E.2d 836 (2014).

After the plaintiffs' children were bitten by the defendants' dog, the trial court erred by removing the question of whether the defendants carelessly managed their dog from the jury's consideration as the trial court's order granting partial summary judgment found only that the dog was not properly restrained and made no ruling as to whether the dog was carelessly managed; and the trial court's instruction that the defendants were negligent based solely on the fact that the defendants did not properly restrain the dog was a misstatement of the law, which could not be considered harmless as the jury did not have an opportunity to consider the primary issue of whether the defendants carelessly managed the defendants' dog. Cowan v. Carillo, 331 Ga. App. 387, 771 S.E.2d 86 (2015).

- When there was proof going to show that the plaintiff, at the time the plaintiff was injured by reason of the horse running over the plaintiff, was standing upon a sidewalk in a city, and one of the acts of negligence charged by the petition was the alleged driving of the horse upon the sidewalk, in violation of a city ordinance, and such ordinance was admitted in evidence without objection, it was not error for the court to charge upon the validity and legal effect of the ordinance, even though the evidence indicated that the driving of the horse on the sidewalk was unintentional on the part of the driver, since the court expressly instructed the jury that, if such act was unintentional, it would constitute no violation of the ordinance. Clackum v. Bagwell, 40 Ga. App. 831, 151 S.E. 689 (1930).

- In an action for injuries to the plaintiff by a bull of the defendant, the questions of the viciousness of the bull, and the negligence of the defendant are questions for the jury. Van Harlengen v. Bearse, 26 Ga. App. 473, 106 S.E. 306 (1921).

When a private zoo owner opens a private zoo for viewing without any charge to the public, it is a question for the jury whether the act of the defendant's employee in removing a chimpanzee from the chimpanzee's cage complied with that degree of care required by this section. Palmer Chem. & Equip. Co. v. Gantt, 123 Ga. App. 703, 182 S.E.2d 492 (1971).

While a previous attack would not necessarily be required to say there is a jury issue on the question of knowledge that a dog had a propensity to attack human beings, at least some form of menacing behavior would be. Carter v. Ide, 125 Ga. App. 557, 188 S.E.2d 275 (1972).

Evidence that the dog's owner knew that the dog had tried to attack another person and had scolded the dog for this behavior was behavior evidence such that the jury should have been allowed to determine whether the owner should have anticipated the subsequent successful attack on the plaintiff. Thurmond v. Saffo, 238 Ga. App. 687, 520 S.E.2d 43 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Scope of section.

- This section relates to a civil action for damages for injury caused by a vicious or dangerous animal kept by its owner when the owner with knowledge of the viciousness of the animal negligently allows the animal to go at liberty. 1945-47 Op. Att'y Gen. p. 652.

- If injury occurs to another by reason of the exercise of the vicious propensity of an animal, the owner will be held liable therefor, if the owner knew of the vicious character and negligently allowed such an animal to run at large. 1945-47 Op. Att'y Gen. p. 652.

- When a person is injured by an attack of an animal which by nature is vicious, the negligence of the owner is presumed because the law recognizes that safety lies only in keeping such animals perfectly secure. 1945-47 Op. Att'y Gen. p. 652.

RESEARCH REFERENCES

Am. Jur. 2d.

- 4 Am. Jur. 2d, Animals, § 62 et seq.

Plaintiff's Negligence, Provocation, or Assumption of Risk as Defense in Dogbite Cases, 39 POF3d 133.

1D Am. Jur. Pleading and Practice Forms, Animals, § 98.

- 3B C.J.S., Animals, § 319 et seq., 340 et seq., 365 et seq.

- Duty and liability of master to servant injured by horse belonging to master, 26 A.L.R. 871; 42 A.L.R. 226; 60 A.L.R. 468.

Character and extent of claims for which lien on animal damage feasant attaches, 26 A.L.R. 1047.

Constitutionality of "dog laws", 49 A.L.R. 847.

Liability of owner or occupant of premises for injury to person thereon by dog not owned or harbored by former, 92 A.L.R. 732.

Liability of owner of male animal who furnishes its service for breeding purposes, for damage inflicted during such services, 106 A.L.R. 1418.

Owner or keeper of trespassing dog as subject to injunction or damages, 107 A.L.R. 1323.

Owner's liability, under legislation forbidding domestic animals to run at large on highways, as dependent on negligence, 34 A.L.R.2d 1285.

Statutory liability for physical injuries inflicted by animal as surviving defendant's death, 40 A.L.R.2d 543.

Liability for injury to property inflicted by wild animal, 57 A.L.R.2d 242.

Contributory negligence, assumption of risk, or intentional provocation as defense to action for injury by dog, 66 A.L.R.2d 916.

Liability of landlord to tenant or member of tenant's family, for injury by animal or insect, 67 A.L.R.2d 1005.

Law as to cats, 73 A.L.R.2d 1032; 8 A.L.R.4th 1287.

Liability for injury inflicted by horse, dog, or other domestic animal exhibited at show, 80 A.L.R.2d 886.

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 A.L.R.2d 1161.

Liability for injury or damage caused by bees, 86 A.L.R.2d 791.

Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.

Liability for injury or death of child social guest, 20 A.L.R.3d 1127.

Owner's or keeper's liability for personal injury or death inflicted by wild animal, 21 A.L.R.3d 603; 92 A.L.R.3d 832; 66 A.L.R. Fed. 305.

Liability of owner of dog known by him to be vicious for injuries to trespasser, 64 A.L.R.3d 1039.

Animals as attractive nuisance, 64 A.L.R.3d 1069.

Keeping bees as nuisance, 88 A.L.R.3d 992.

Governmental liability from operation of zoo, 92 A.L.R.3d 832.

Personal injuries inflicted by animal as within homeowner's or personal liability policy, 96 A.L.R.3d 891.

Liability of owner of dog for dog's biting veterinarian or veterinarian's employee, 4 A.L.R.4th 349.

Liability of owner or bailor of horse for injuries by horse to hirer or bailee thereof, 6 A.L.R.4th 358.

Measure, elements, and amount of damages for killing or injuring cat, 8 A.L.R.4th 1287.

Liability of person, other than owner of animal or owner or operator of motor vehicle, for damage to motor vehicle or injury to person riding therein resulting from collision with domestic animal at large in street or highway, 21 A.L.R.4th 132.

Liability of owner or operator of vehicle for damage to motor vehicle or injury to person riding therein resulting from collision with domestic animal at large in street or highway, 21 A.L.R.4th 159.

Liability of owner of animal for damage to motor vehicle or injury to person riding therein resulting from collision with domestic animal at large in street or highway, 29 A.L.R.4th 431.

Liability to adult social guest injured otherwise than by condition of premises, 38 A.L.R.4th 200.

Liability for personal injury or death caused by trespassing or intruding livestock, 49 A.L.R.4th 710.

Modern status of rule of absolute or strict liability for dogbite, 51 A.L.R.4th 446.

Cat as subject of larceny, 55 A.L.R.4th 1080.

Who "harbors" or "keeps" dog under animal liability statute, 64 A.L.R.4th 963.

Liability of owner or operator of business premises for injury to patron by dog or cat, 67 A.L.R.4th 976.

Liability for injuries caused by cat, 68 A.L.R.4th 823.

Landlord's liability to third person for injury resulting from attack on leased premises by dangerous or vicious animal kept by tenant, 87 A.L.R.4th 1004.

Landlord's liability to third person for injury resulting from attack off leased premises by dangerous or vicious animal kept by tenant, 89 A.L.R.4th 374.

Intentional provocation, contributory or comparative negligence, or assumption of risk as defense to action for injury by dog, 11 A.L.R.5th 127.

Liability for injury inflicted by horse, dog, or other domestic animal exhibited at show, 68 A.L.R.5th 599.

Liability of United States, under Federal Tort Claims Act (28 USCS secs. 1346, 2671 et seq.), for death or injury sustained by visitor to national park or national forest, 66 A.L.R. Fed. 305.

• 51-3-1. Duty of owner or occupier of land to invitee.
• 51-3-2. Duty of owner of premises to licensee.
• 51-3-3. Lawful possessor of land owes no duty of care to trespasser.

• 51-3-20. Purpose of article.
• 51-3-21. Definitions.
• 51-3-22. Duty of owner of land to those using same for recreation generally.
• 51-3-23. Effect of invitation or permission to use land for recreation.
• 51-3-24. Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation.
• 51-3-25. Certain liability not limited.
• 51-3-26. Construction of article.

• 51-3-30. Liability of landowner or hunter for injury caused by wildlife crossing public roadway.
• 51-3-31. Agritourism defined; immunity for civil liability; warnings.

• 51-3-41. Definitions.
• 51-3-42. Civil or criminal liability for injuries during space flight.
• 51-3-43. Required warning and agreement for space flight; requirements for enforceability.
• 51-3-44. Governing law.

RESEARCH REFERENCES

ALR.

- Tort liability for window washer's injury or death, 69 A.L.R.4th 207.