MILLER, P. J., DOYLE, P. J., and REESE, J.
Miller, Presiding Judge.
case involves the availability of punitive damages for
negligence after Laurie Weinstein was injured by dogs owned
by Courtney and David Holmes when those dogs allegedly
attacked Teddy, a Yorkshire Terrier, Weinstein was
walking.The Holmeses moved for partial summary
judgment on the issue of punitive damages, arguing that there
was no evidence that they had knowledge of the risk of an
attack because there were no prior instances that would have
put them on notice. The trial court granted the motion for
partial summary judgment, finding that a single prior
incident was insufficient to establish an entire want of care
or conscious indifference to the consequences. This appeal
followed, and we now reverse the trial court's order on
the motion for partial summary judgment because we find that
there was sufficient evidence for the issue of punitive
damages to go to a jury.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. OCGA § 9-11-56 (c). A de novo standard of
review applies to an appeal from a grant of summary judgment,
and we view the evidence, and all reasonable conclusions and
inferences drawn from it, in the light most favorable to the
(Citations omitted.) Custer v. Coward, 293 Ga.App.
316, 317 (667 S.E.2d 135) (2008).
viewed, the evidence shows that, on May 9, 2013, Weinstein
walked her son and daughter-in-law's Yorkshire Terrier,
Teddy, to their neighborhood dog park. At the time, Teddy was
about eleven years old and weighed slightly over five pounds.
As they approached the dog park, Weinstein noticed Courtney
Holmes with her two larger dogs - a 75 pound Rhodesian
Ridgeback named Lacy and a 40 pound beagle/lab mix named
Callie - already within the gated area of the park. Weinstein
asked Holmes if she and her dogs would be leaving soon, and
Holmes shrugged her shoulders. A few moments later, Holmes
put leashes on her dogs and, as she opened the gate to the
park, the dogs charged out.
was standing a "good distance" away from the gate
because she did not want to be near the dogs as they came
out. As the two dogs charged out of the park, Holmes had
trouble holding on to them and she lost her grasp on
Lacy's leash. Weinstein tried to pick Teddy up as the
three dogs were running around, but either the larger dogs
knocked her down or she became tangled in their leashes and
fell. When she stood, she noticed bruises and a paw mark on
her arm, and that Teddy's eye was bleeding.
asked a neighbor to call 911 and then went to find her son.
By that time, the "damage was already done, " and
Teddy was "half gone." An animal control officer
came to the scene, pronounced Teddy dead, and gave Holmes two
citations, one for having a dog off leash and another for dog
biting dog. Although the animal control officer had
already pronounced Teddy dead, the Weinsteins took Teddy to
the vet that evening, and the veterinarian noted that Teddy
had a broken neck, puncture wounds on his face, and had been
bleeding from his left eye, mouth, and nose.
submitted evidence that another neighbor had been involved in
a prior incident with Holmes's dogs. On that day, Holmes
lost control of her dogs and they charged aggressively at a
woman walking her dog and also started to attack that dog.
The neighbor restrained Holmes's dogs, and he believed
that they would have injured the other dog had he not
intervened. The neighbor's wife stated that she avoided
Holmes when she saw Holmes walking the dogs because she did
not think Holmes could control the dogs, as they often pulled
Holmes as Holmes held the leashes.
denied that her dogs injured Teddy and testified that
Weinstein fell on Teddy when she got tangled in the leashes
as the dogs chased each other. Holmes further denied any
previous incidents with either dog and stated that she never
had trouble controlling her dogs when she walked them.
Additionally, Holmes stated that "unless [Lacy] saw a
dog that she wanted to play with, [Lacy] was usually very
calm and not aggressive." She admitted, however, that
she knew her dogs liked to play with other dogs and that, on
the day Teddy died, her dogs had not had the opportunity to
get their energy out before Weinstein asked them to leave the
park. She acknowledged that, during the incident, Callie was
pulling her, and she was unable to control Lacy.
trial court granted summary judgment to Holmes on the issue
of punitive damages, finding that the single other incident
was insufficient to establish that the Holmeses acted with an
entire want of care or conscious indifference to the
consequences of their actions. The trial court noted that the
previous incident had not resulted in an injury, and thus the
Holmeses had no knowledge of the risk to Weinstein.
sole enumeration of error, Weinstein argues that the trial
court erred in granting summary judgment on the issue of
punitive damages because the conflicting evidence in the
record warranted jury consideration. We agree.
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. Although this traditionally has been described as
Georgia's "first bite rule, " the rule does not
literally require a first bite. Instead, ...