COWAN et al.
CARILLO et al
Dog bite. Gwinnett State Court. Before Judge Doran.
Cowsert & Avery, Craig C. Avery, Michael S. Broun, for appellants.
The Federal Firm, R. Keegan Federal, Jr., R. O. Lerer, for appellees.
After their minor children E. G. and Y. G. were bitten by a pit bull, Rafaela Carillo and Ernesto Gurrola (collectively, " the Plaintiffs" ) filed suit against Daniel Cowan and Sarah Arechiga, the owners of the dog. The trial court granted partial summary judgment to the Plaintiffs, finding that there was no material question of fact as to whether the dog was properly restrained under OCGA § 51-2-7. A jury then returned a verdict in favor of the Plaintiffs. Cowan and Arechiga appeal, contending that the trial court erred in finding that they were negligent under OCGA § 51-2-7 and by instructing the jury that the only issue for determination was damages, because the trial court had only granted partial summary judgment to the Plaintiffs as to one element of their cause of action. Cowan and Arechiga also contend that the jury's calculation of damages was not supported by the evidence. We reverse because the trial court erred by removing the question of whether the defendants carelessly managed the dog from the jury's consideration.
Viewed in the light most favorable to the jury's verdict, the trial evidence shows that the Plaintiffs rented Unit 2-B of an apartment
duplex in Lilburn, and Cowan and Arechiga rented Unit 2-A next [331 Ga.App. 388] door. The units shared a common front yard. Shortly after moving in, the Plaintiffs discovered that Cowan and Arechiga owned a pit bull. The Plaintiffs would see the pit bull outside the apartment, sometimes unrestrained, and the dog would growl at them. One time, when the dog escaped, Arechiga had to run after it. The Plaintiffs complained to their landlords about the pit bull because they felt unsafe, and they brought their children inside when they saw the dog.
On February 27, 2011, E. G. and Y. G. were playing outside, and E. G. returned home to get a drink of water. At the time, Cowan had two guests at the apartment who had gone outside to smoke. Cowan's guests had failed to properly shut the apartment's front door, and the pit bull was able to get out of the apartment. After drinking some water, E. G. ran out of the front of his apartment, and the pit bull then attacked him. Arechiga, who had just returned home, attempted to control the pit bull and yelled for Cowan to come outside to control the dog. The pit bull took off running and subsequently bit Y. G. The children were taken to a hospital for their injuries.
After the Plaintiffs filed the instant suit, they moved for partial summary judgment on the ground that the pit bull was a vicious or dangerous animal under OCGA § 51-2-7 because it was not properly restrained as required by local county ordinances. The trial court granted the Plaintiffs' motion, finding that there was no genuine issue of material fact as to whether the pit bull was properly restrained. The trial court's order was not appealed, and the case proceeded to trial.
Following the presentation of evidence, Arechiga moved for a directed verdict, arguing that there was no evidence that she had any role in letting the dog escape the apartment. The trial court denied Arechiga's motion, concluding that there was a factual question as to whether Arechiga carelessly managed the pit bull. The trial court then instructed the jury that, as to Arechiga and Cowan, it had already decided that they were negligent because the pit bill was not properly restrained and that the jury was only to calculate the amount of damages. Arechiga and Cowan objected to the trial court's instruction, arguing that the trial court had previously found only that the pit bull was not properly restrained. The jury returned a verdict in favor of the Plaintiffs in the amount of $150,000, apportioned equally between Arechiga and Cowan. This appeal ensued.
1. In related enumerations of error, Arechiga and Cowan contend that the trial court erred in concluding that they were negligent under OCGA § 51-2-7 and in taking this issue away from the jury's consideration because the trial court's order granting partial summary judgment found only that the pit bull was not properly ...