Brown v. Pierce

Court of Appeals of Georgia

Brown v. Pierce

338 S.E.2d 39, 176 Ga. App. 787, 1985 Ga. App. LEXIS 2447

CourtCourt of Appeals of Georgia

DecidedNovember 7, 1985

Docket71010

StatusPublished

Cited by6 cases

This text of 338 S.E.2d 39 (Brown v. Pierce) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Pierce, 338 S.E.2d 39, 176 Ga. App. 787, 1985 Ga. App. LEXIS 2447 (Ga. Ct. App. 1985).

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Opinion

Sognier, Judge.

This is a dog bite case. A German Shepherd dog, owned by Stephen and Debra Pierce, attacked and mauled six-year-old Jason Carter Brown while Brown was playing in his own yard. Summary judgment was granted to the Pierces in the personal injury suit brought by Brown, by next friend Pamela Youngblood, Brown’s mother. This appeal ensued.

Appellees moved for summary judgment on the basis of their affidavits denying they had any knowledge prior to the subject incident that their dog had ever bitten another human being. Appellant failed to present any evidence controverting appellees’ statements. The version of OCGA § 51-2-7 in effect at the time of these events provided that “[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 shall be liable in damages to the person so injured.” “Concerning this statutory provision, this court has repeatedly held that ‘(p)roof 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. [Cit.] . . . (T)he owner of a dog may not be found liable for an unforeseen and unforeseeable act of the dog simply because the dog was not under the owner’s direct control at the time the act took place.’ [Cit.]” Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984). (We note that under the amended version of OCGA § 51-2-7, effective July 1, 1985, rulings cited herein may become inapplicable.) Appellant’s argument that the presence of appellees’ dog on premises owned by appellant’s mother and stepfather while in violation of the county leash law negates any burden on appellant to show scienter in order to allege a valid cause of action has been decided adversely to appellant in Connell v. Bland, 122 Ga. App. 507, 510-512 (177 SE2d 833) (1970). The language appellant relies on in Caldwell v. Gregory, 120 Ga. App. 536, 541 (171 SE2d 571) (1969) is obiter dicta and inapplicable to dog cases. Connell, supra at 512.

Judgment affirmed.

Birdsong, P. J., and Carley, J., concur. *788 James H. Archer, Jr., Edna M. Caldwell, for appellant. Stephen L. Cotter, for appellees.

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Sognier, Judge.

This is a dog bite case. A German Shepherd dog, owned by Stephen and Debra Pierce, attacked and mauled six-year-old Jason Carter Brown while Brown was playing in his own yard. Summary judgment was granted to the Pierces in the personal injury suit brought by Brown, by next friend Pamela Youngblood, Brown’s mother. This appeal ensued.

Appellees moved for summary judgment on the basis of their affidavits denying they had any knowledge prior to the subject incident that their dog had ever bitten another human being. Appellant failed to present any evidence controverting appellees’ statements. The version of OCGA § 51-2-7 in effect at the time of these events provided that “[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 shall be liable in damages to the person so injured.” “Concerning this statutory provision, this court has repeatedly held that ‘(p)roof 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. [Cit.] . . . (T)he owner of a dog may not be found liable for an unforeseen and unforeseeable act of the dog simply because the dog was not under the owner’s direct control at the time the act took place.’ [Cit.]” Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984). (We note that under the amended version of OCGA § 51-2-7, effective July 1, 1985, rulings cited herein may become inapplicable.) Appellant’s argument that the presence of appellees’ dog on premises owned by appellant’s mother and stepfather while in violation of the county leash law negates any burden on appellant to show scienter in order to allege a valid cause of action has been decided adversely to appellant in Connell v. Bland, 122 Ga. App. 507, 510-512 (177 SE2d 833) (1970). The language appellant relies on in Caldwell v. Gregory, 120 Ga. App. 536, 541 (171 SE2d 571) (1969) is obiter dicta and inapplicable to dog cases. Connell, supra at 512.

Judgment affirmed.

Birdsong, P. J., and Carley, J., concur. *788 James H. Archer, Jr., Edna M. Caldwell, for appellant. Stephen L. Cotter, for appellees.

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338 S.E.2d 39, 176 Ga. App. 787, 1985 Ga. App. LEXIS 2447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-pierce-gactapp-1985.

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