FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 5, 2023
In the Court of Appeals of Georgia A23A0052. CORNEJO v. ALLEN.
MCFADDEN, Presiding Judge.
Efren Cornejo appeals the trial court’s grant of a defense motion for summary
judgment in this personal injury action. In his complaint, Cornejo alleged that he was
injured when he fell while trying to escape from Cory Allen’s dog, “Libei,” when the
dog charged at him. The day before, Libei had jumped on, scratched, and bitten
Cornejo in Allen’s presence.
The trial court granted summary judgment to Allen on Cornejo’s claims for
strict liability and negligence. We affirm as to strict liability, because Georgia does
not impose strict liability upon dog owners. But we reverse as to negligence, because
there exists a genuine issue of material fact regarding whether Allen knew of Libei’s
vicious propensity. 1. Facts and procedural history.
“On appeal from a ruling on a motion for summary judgment, we conduct a de
novo review, viewing the evidence in the record and all inferences therefrom in the
light most favorable to the nonmoving party.” Tyner v. Matta-Troncoso, 305 Ga. 480,
481 (1) (826 SE2d 100) (2019).
So viewed, the evidence shows that on the evening of February 16, 2019,
Cornejo was socializing with a friend around a fire in his backyard. Allen, who lived
next door, came over with his wife, his daughter, and Libei, a dog that Allen recently
had acquired when his wife took the dog from another person’s yard because the dog
was being neglected. Cornejo had not previously seen or interacted with the dog.
Libei was not on a leash, and as Cornejo brought wood to the fire, Libei
jumped on him and scratched his hand. Then, when Cornejo began splitting more
wood, Libei attacked and bit him.
Allen knew Libei had bitten Cornejo and knew that Cornejo “wanted [him] to
get rid of the dog.” He immediately discussed the situation with his wife and the next
day, February 17, 2019, Allen told Cornejo that he was going to find the dog a new
home.
2 Later in the afternoon on February 17, Cornejo went outside to feed his own
dog. Libei was alone in Allen’s yard, about 50 to 60 feet away, and she began barking
and running straight at Cornejo, coming onto his property. Cornejo began to run
toward his truck to fetch a gun to defend himself. As he was running, Cornejo slipped
and fell in his concrete driveway, injuring his shoulder. Libei stopped in Cornejo’s
driveway, about ten feet away from him, when Cornejo fell; then the dog returned to
Allen’s yard. Allen returned home shortly afterward and Cornejo told him that Libei
had charged him, causing him to slip and fall.
Cornejo brought claims for strict liability and negligence against Allen, seeking
to recover for the injuries he incurred when he fell in his driveway on February 17.
In later filings he clarified that he did not seek to recover for any of Libei’s actions
on February 16, when the dog bit him.
Allen moved for summary judgment on both the strict liability and negligence
claims. The trial court granted the motion, holding that Georgia does not recognize
strict liability for the acts of a dog and that there was no evidence that Allen knew of
the dog’s vicious propensity.
2. Strict liability.
3 Although Cornejo enumerates the entire summary judgment ruling as error, he
does not make any arguments or cite any authority pertaining to the grant of summary
judgment on his claim for strict liability. See Georgia Court of Appeals Rule 25 (d)
(1) (“Any enumeration of error that is not supported in the brief by citation of
authority or argument may be deemed abandoned.”). Moreover, Georgia does not
impose strict liability upon dog owners for injuries caused by their dogs. See Cowan
v. Carillo, 331 Ga. App. 387, 390 (1) (a) n. 4 (771 SE2d 86) (2015) (“[t]he strict
liability standard for dog biting has long been abolished”), disapproved in part on
other grounds by S&S Towing & Recovery v. Charnota, 309 Ga. 117, 122 (2) n. 6
(844 SE2d 730) (2020). So we affirm the grant of summary judgment as to the claim
for strict liability.
3. Negligence.
(a) The owner’s knowledge of the dog’s vicious propensity.
Our Code imposes liability upon “[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. . . .” OCGA § 51-2-7. For purposes of summary judgment Allen
does not appear to dispute that the dog was, in fact, vicious or dangerous. Instead, he
4 argues there is no evidence that he knew of the dog’s vicious propensity. See S & S
Towing & Recovery, 309 Ga. at 122 (2) (OCGA § 51-2-7 requires a plaintiff to prove
scienter, which can be done “by showing that the owner had knowledge of the
animal’s vicious propensity as defined by the common law”); Torrance v. Brennan,
209 Ga. App. 65, 66 (1) (432 SE2d 658) (1993) (a dog’s dangerous character and a
defendant’s knowledge of that dangerous character are separate issues).
For a genuine issue of fact to exist regarding Allen’s knowledge of the dog’s
vicious propensity, there must be evidence that Allen had “reason to know of the
dog’s propensity to do harm of the type which it inflict[ed].” Steagald v. Eason, 300
Ga. 717, 719 (797 SE2d 838) (2017) (citation and punctuation omitted). “A dog
owner is liable for damages only if the owner has knowledge that the dog has the
propensity to do the particular act which caused injury to the complaining party. A
plaintiff must show that the dog had the propensity to do the act and that the owner
had knowledge of that propensity.” Weinstein v. Holmes, 344 Ga. App. 391, 394 (810
SE2d 320) (2018) (citation and punctuation omitted). “But this does not mean an
incident involving the exact same conduct and the exact same injury must actually
occur before [Allen’s] knowledge may be inferred. Rather, to infer the requisite
knowledge, there must [have been] at least one incident that would cause a prudent
5 person to anticipate the event which actually occurred.” Steagald, supra at 720
(citations and punctuation omitted).
Here there is evidence of two incidents in which Libei displayed aggressive
behavior toward Cornejo: the biting incident on February 16 when, in Allen’s
presence, Libei jumped on, scratched, and bit Cornejo; and the charging incident on
February 17 when Libei charged at Cornejo, barking and running to within ten feet
of him before stopping when he fell. Allen argues that the two incidents are so
dissimilar that a jury could not infer from the earlier biting incident that Allen had the
requisite knowledge to hold him liable for the injuries Cornejo sustained in the later
charging incident. He characterizes the biting incident as an unusual circumstance in
which the dog was provoked by Cornejo’s act of chopping wood and the charging
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FIFTH DIVISION MCFADDEN, P. J., BROWN and MARKLE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 5, 2023
In the Court of Appeals of Georgia A23A0052. CORNEJO v. ALLEN.
MCFADDEN, Presiding Judge.
Efren Cornejo appeals the trial court’s grant of a defense motion for summary
judgment in this personal injury action. In his complaint, Cornejo alleged that he was
injured when he fell while trying to escape from Cory Allen’s dog, “Libei,” when the
dog charged at him. The day before, Libei had jumped on, scratched, and bitten
Cornejo in Allen’s presence.
The trial court granted summary judgment to Allen on Cornejo’s claims for
strict liability and negligence. We affirm as to strict liability, because Georgia does
not impose strict liability upon dog owners. But we reverse as to negligence, because
there exists a genuine issue of material fact regarding whether Allen knew of Libei’s
vicious propensity. 1. Facts and procedural history.
“On appeal from a ruling on a motion for summary judgment, we conduct a de
novo review, viewing the evidence in the record and all inferences therefrom in the
light most favorable to the nonmoving party.” Tyner v. Matta-Troncoso, 305 Ga. 480,
481 (1) (826 SE2d 100) (2019).
So viewed, the evidence shows that on the evening of February 16, 2019,
Cornejo was socializing with a friend around a fire in his backyard. Allen, who lived
next door, came over with his wife, his daughter, and Libei, a dog that Allen recently
had acquired when his wife took the dog from another person’s yard because the dog
was being neglected. Cornejo had not previously seen or interacted with the dog.
Libei was not on a leash, and as Cornejo brought wood to the fire, Libei
jumped on him and scratched his hand. Then, when Cornejo began splitting more
wood, Libei attacked and bit him.
Allen knew Libei had bitten Cornejo and knew that Cornejo “wanted [him] to
get rid of the dog.” He immediately discussed the situation with his wife and the next
day, February 17, 2019, Allen told Cornejo that he was going to find the dog a new
home.
2 Later in the afternoon on February 17, Cornejo went outside to feed his own
dog. Libei was alone in Allen’s yard, about 50 to 60 feet away, and she began barking
and running straight at Cornejo, coming onto his property. Cornejo began to run
toward his truck to fetch a gun to defend himself. As he was running, Cornejo slipped
and fell in his concrete driveway, injuring his shoulder. Libei stopped in Cornejo’s
driveway, about ten feet away from him, when Cornejo fell; then the dog returned to
Allen’s yard. Allen returned home shortly afterward and Cornejo told him that Libei
had charged him, causing him to slip and fall.
Cornejo brought claims for strict liability and negligence against Allen, seeking
to recover for the injuries he incurred when he fell in his driveway on February 17.
In later filings he clarified that he did not seek to recover for any of Libei’s actions
on February 16, when the dog bit him.
Allen moved for summary judgment on both the strict liability and negligence
claims. The trial court granted the motion, holding that Georgia does not recognize
strict liability for the acts of a dog and that there was no evidence that Allen knew of
the dog’s vicious propensity.
2. Strict liability.
3 Although Cornejo enumerates the entire summary judgment ruling as error, he
does not make any arguments or cite any authority pertaining to the grant of summary
judgment on his claim for strict liability. See Georgia Court of Appeals Rule 25 (d)
(1) (“Any enumeration of error that is not supported in the brief by citation of
authority or argument may be deemed abandoned.”). Moreover, Georgia does not
impose strict liability upon dog owners for injuries caused by their dogs. See Cowan
v. Carillo, 331 Ga. App. 387, 390 (1) (a) n. 4 (771 SE2d 86) (2015) (“[t]he strict
liability standard for dog biting has long been abolished”), disapproved in part on
other grounds by S&S Towing & Recovery v. Charnota, 309 Ga. 117, 122 (2) n. 6
(844 SE2d 730) (2020). So we affirm the grant of summary judgment as to the claim
for strict liability.
3. Negligence.
(a) The owner’s knowledge of the dog’s vicious propensity.
Our Code imposes liability upon “[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. . . .” OCGA § 51-2-7. For purposes of summary judgment Allen
does not appear to dispute that the dog was, in fact, vicious or dangerous. Instead, he
4 argues there is no evidence that he knew of the dog’s vicious propensity. See S & S
Towing & Recovery, 309 Ga. at 122 (2) (OCGA § 51-2-7 requires a plaintiff to prove
scienter, which can be done “by showing that the owner had knowledge of the
animal’s vicious propensity as defined by the common law”); Torrance v. Brennan,
209 Ga. App. 65, 66 (1) (432 SE2d 658) (1993) (a dog’s dangerous character and a
defendant’s knowledge of that dangerous character are separate issues).
For a genuine issue of fact to exist regarding Allen’s knowledge of the dog’s
vicious propensity, there must be evidence that Allen had “reason to know of the
dog’s propensity to do harm of the type which it inflict[ed].” Steagald v. Eason, 300
Ga. 717, 719 (797 SE2d 838) (2017) (citation and punctuation omitted). “A dog
owner is liable for damages only if the owner has knowledge that the dog has the
propensity to do the particular act which caused injury to the complaining party. A
plaintiff must show that the dog had the propensity to do the act and that the owner
had knowledge of that propensity.” Weinstein v. Holmes, 344 Ga. App. 391, 394 (810
SE2d 320) (2018) (citation and punctuation omitted). “But this does not mean an
incident involving the exact same conduct and the exact same injury must actually
occur before [Allen’s] knowledge may be inferred. Rather, to infer the requisite
knowledge, there must [have been] at least one incident that would cause a prudent
5 person to anticipate the event which actually occurred.” Steagald, supra at 720
(citations and punctuation omitted).
Here there is evidence of two incidents in which Libei displayed aggressive
behavior toward Cornejo: the biting incident on February 16 when, in Allen’s
presence, Libei jumped on, scratched, and bit Cornejo; and the charging incident on
February 17 when Libei charged at Cornejo, barking and running to within ten feet
of him before stopping when he fell. Allen argues that the two incidents are so
dissimilar that a jury could not infer from the earlier biting incident that Allen had the
requisite knowledge to hold him liable for the injuries Cornejo sustained in the later
charging incident. He characterizes the biting incident as an unusual circumstance in
which the dog was provoked by Cornejo’s act of chopping wood and the charging
incident as merely Cornejo’s “overreacti[on] to the presence of a dog engaging in
doggy behavior.”
Certainly, a jury might agree with Allen’s characterizations of these incidents
and conclude that the February 16 biting incident “involved such different
circumstances that they could not have put [him] on notice [that Libei might again act
aggressively toward Cornejo]. . . . [B]ut we do not think it so clear that we might
reach the same conclusion as a matter of law.” Steagald, 300 Ga. at 721 n. 4
6 (emphasis in original). Cornejo described the biting incident as an “attack.” And a
jury could reasonably conclude, from Cornejo’s description, that the charging
incident amounted to an attempted attack.
Our Supreme Court has held that evidence of an attempted bite can put a dog’s
owner on notice of the dog’s propensity to bite. Steagald, 300 Ga. at 721. The inverse
is also true. Because there is evidence in this case that Allen knew his dog had
previously attacked Cornejo, that evidence may be sufficient to put Allen on notice
that the dog might again try to attack Cornejo. The fact that the dog did not succeed
in the attempt does not matter where, as here, there is evidence that Cornejo was
injured while trying to escape the attack. See Green v. Wilson, 333 Ga. App. 631 (773
SE2d 872) (2015) (physical precedent only) (reversing grant of summary judgment
in case where plaintiff was injured while running from aggressive dog); Evans-
Watson v. Reese, 188 Ga. App. 292 (372 SE2d 675) (1988) (same).
In his appellate brief, Allen cites several cases in which we held that a dog
owner lacked the requisite knowledge of a dog’s violent propensities. Those cases are
factually distinguishable. See, e. g., Wade v. American Nat. Ins. Co., 246 Ga. App.
458, 461 (1) (540 SE2d 671) (2000) (no evidence that the dog’s owners had any
knowledge that the dog “had ever attempted to attack another animal or human”);
7 Clark v. Joiner, 242 Ga. App. 421, 423 (2) (530 SE2d 45) (2000) (no evidence that
the dog had ever bitten anyone before or had a tendency to attack humans); Rowlette
v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37) (1995) (finding no evidence that a
dog’s owners “were on notice that the dog would launch an unprovoked attack on a
stranger coming into the yard” where the dog had never growled at or attacked
anyone, aside from one incident in which the dog, startled out of sleep by “banging”
on a porch, had bitten a person who was wearing a dust mask and hat at the time);
McNair v. Jones, 137 Ga. App. 13, 14 (2) (223 SE2d 27) (1975) (evidence that people
would “run” when a particular dog “got loose” did not show that the dog’s owner
knew the dog had a propensity to chase vehicles). These cases do not compel us to
conclude that, as a matter of law, the incident in which Libei attacked and bit Cornejo
on February 16 would not “cause a prudent person to anticipate the actual event that
caused the injury[,]” Libei’s act of charging at Cornejo on February 17. Steagald,
supra at 720 (citation and punctuation omitted).
(b) Contributory negligence and assumption of the risk.
Cornejo also argues in his appellate brief that there are genuine issues of
material fact as to two alternative grounds that Allen argued to the trial court in
support of his motion for summary judgment: contributory negligence and assumption
8 of the risk. Allen appears to have abandoned those grounds on appeal; he offers no
argument or citation to authority in support of them and instead argues that we should
not address them. So we decline to consider whether either contributory negligence
or assumption of the risk provides a basis for affirming the grant of summary
judgment under the right-for-any-reason rule. See generally Hardin v. Hardin, 301
Ga. 532, 537 (801 SE2d 774) (2017) (noting that application of the right-for-any-
reason rule is discretionary).
Judgment affirmed in part and reversed in part. Brown and Markle, JJ.,
concur.