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Wyno v. Lowndes County

Court of Appeals of Georgia

March 25, 2015

WYNO et al.
v.
LOWNDES COUNTY et al

Cert. applied for.

Official immunity. Lowndes Superior Court. Before Judge Hardy.

O. Wayne Ellerbee, for appellants.

William A. Turner, Jr., Elliott, Blackburn & Gooding, James L. Elliott, for appellees.

OPINION

Page 208

McFadden, Judge.

Misty Wyno was attacked and killed by her neighbors' dog. Her husband, Jason Wyno, acting individually and as administrator of Mrs. Wyno's estate, brought this action against the dog's owners and against several governmental defendants -- Lowndes County and four individual county employees associated with the county's animal [331 Ga.App. 542] control services -- whom he alleged had failed to respond appropriately to earlier complaints about the dog. The trial court dismissed the action against the county and the employees for failure to state a claim, concluding that sovereign and official immunity or, alternatively, the Responsible Dog Ownership Law, OCGA § 4-8-20 et seq., barred the action against those defendants. The trial court did not dismiss the action against the dog's owners, but he did enter a final judgment under OCGA § 9-11-54 (b) in favor of the governmental defendants, and Wyno filed a direct appeal.

As detailed below, we affirm the dismissal of the action against the county and its employees in their official capacities pursuant to the version of the Responsible Dog Ownership Law then in effect, former OCGA § 4-8-30 (2012). As to the action against the employees in their individual capacities, however, we cannot affirm. The employees are not entitled to dismissal on official immunity grounds at this stage of the proceedings. And as to the Responsible Dog Ownership Law, Wyno has argued both below and on appeal that the statute contravenes Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d), which governs the official immunity of employees sued in their individual capacities. Although the trial court implicitly rejected Wyno's constitutional challenge, we cannot review that ruling because the trial court did

Page 209

not make it expressly. Accordingly, as to the employees in their individual capacities, we reverse the judgment and remand the case for the trial court to enter an express ruling on the constitutional challenge and for other proceedings consistent herewith.

1. Facts alleged in complaint and standard of review.

A motion to dismiss for failure to state a claim upon which relief may be granted

should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will ...

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