This Opinion is Uncorrected and subject to revision by the court.
MCFADDEN, Judge. Barnes, P. J., Phipps, P. J., concur; Ellington, P. J., concurs in the judgment only; Dillard, Ray and McMillian, JJ., dissent.
Pamela Green appeals from the grant of summary judgment to Robert Wilson in this personal injury action against him individually and in his capacity as executor of the estate of his wife, Audie Wilson. In the action, Green alleged that she was injured while trying to get away from the Wilsons' dog. Because there is evidence that Mrs. Wilson knew that the dog had the propensity to do the type of act that caused Green's injury, summary judgment is not appropriate. Accordingly, we reverse.
" Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant." Stennette v. Miller, 316 Ga.App. 425, 426 (729 S.E.2d 559) (2012) (citation omitted).
So viewed, the evidence showed that at the time of the incident Green worked for a housecleaning company that provided cleaning services to the Wilsons, who owned a border collie named Nani. Normally, after arriving at the Wilsons' house, the housecleaners would wait outside until Mrs. Wilson locked Nani in a room. When the housecleaners were ready to clean that room, Mrs. Wilson would move Nani, sometimes physically dragging the dog to another room as the dog lunged, barked, and growled at the housecleaners. After securing Nani in the other room, Mrs. Wilson would tell the housecleaners that they were " safe." Although Green testified that she did not see Nani behave viciously or aggressively, the other housecleaners testified that they were afraid of Nani.
On October 11, 2011, Green and a co-worker arrived at the Wilsons' house in a cleaning company van. Unlike other times, on this occasion Nani was outside the house in a fenced enclosure, barking. Green got out of the van. Suddenly, Green's co-worker saw Nani leap over the fence and run towards Green. The co-worker yelled a warning to Green, who quickly jumped inside the van and shut the door as Nani barked, growled, and jumped against the van door. In Green's effort to escape the dog, she struck her arm against the van, sustaining an injury that required surgery.
Citing " principles of common law negligence," Green has argued that the Wilsons were liable because they knew of Nani's propensity to " chase people, or to act aggressively toward people so as to frighten them." (She expressly does not seek to recover under OCGA § 51-2-7, which provides for liability of the owner or keeper of a vicious or dangerous animal for injuries caused by that animal.) Our law as to negligence claims against dog owners provides that
a dog owner will be 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. Under this test, the plaintiff must show that the dog had the propensity to do the act that caused the injury and, if so, whether the owner had knowledge of that propensity.
Wade v. American Nat. Ins. Co., 246 Ga.App. 458, 459 (1) (540 S.E.2d 671) (2000) (citations and punctuation omitted) (addressing claims made under both the dangerous animal liability statute, OCGA § 51-2-7, and the premises liability statute, OCGA § 51-3-1). See generally Stennette, supra, 316 Ga.App. 425 (analyzing several theories through which plaintiff sought to impose liability upon defendant for dog attack).
The trial court granted summary judgment to Wilson on the ground that there was no evidence that Nani had the propensity to do the particular act that caused Green's injury because Nani had never before chased anyone, inside or outside the house. The trial court correctly noted that " a dog's aggressive or menacing behavior alone is not sufficient to place its owner on notice of a propensity" to do a particular act. Wade, 246 Ga.App. at 460 (1) (citation omitted). Nevertheless, the trial court considered the evidence in this case too narrowly. While a dog owner must
have reason to know of [the animal's] propensity to do harm of the type which it inflicts[,] this does not mean an incident involving the exact same conduct and the exact same injury must actually occur before the owner's knowledge may be inferred, as long as there is an incident or incidents ...