SAULSBURY et al.
MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
interlocutory appeal arises from a dog fight between Alpha, a
dog owned by Lilita Renee Wilson, and Baby, a dog owned by
Maribel Saulsbury. Both Wilson and Saulsbury allege they were
injured during the dog fight and seek compensation for their
injuries. The Saulsburys moved for summary judgment
on Wilson's counterclaims, in part, on the ground that
Wilson assumed the risk of harm by intervening to break up
the dog fight with her bare hands. The trial court denied the
motion, finding that material issues of fact exist, but
issued a certificate of immediate review of this order. This
Court granted the Saulsburys' application for
interlocutory review and the Saulsburys timely appealed. Upon
review of the record, we find that Wilson assumed the risk of
harm as a matter of law, and we reverse the trial court's
denial of the motion for summary judgment on Wilson's
reviewing the grant or denial of a motion for summary
judgment, we apply a de novo standard of review and consider
the evidence with all reasonable inferences therefrom in
favor of the party opposing summary judgment." (Citation
omitted.) La Cosecha, Inc. v. Hall, 246 Ga.App. 441,
442 (540 S.E.2d 659) (2000).
viewed, the record shows that Saulsbury was walking her
English Bulldog, Baby, past Wilson's house on May 13,
2016. Wilson's Pit Bulldog, Alpha, was secured in a crate
inside Wilson's open garage, but the dog somehow escaped.
A fight ensued between the dogs, though the parties disagree
about the particulars of the fight. Wilson intervened to try
to break up the fight. At one point she was able to pull
Alpha out of the fight, but she slipped and lost control of
the dog. Wilson engaged with the dogs again in an attempt to
pull Alpha away. Wilson was not afraid of her own dog during
this fight, and she was not concerned about being bitten by
Baby because she believed Baby was solely focused on Alpha.
However, Wilson was aware prior to this fight that Baby
previously bit a different neighbor. Wilson nonetheless did not
think any bite would be severe because, in her experience,
the bites sustained during dog fights were superficial. Also,
she had broken up other dogfights before using a stick.
attempting to break up this fight, Wilson was bitten,
allegedly by Baby. Wilson left the dogs fighting outside to
tend to her bite. Wilson returned outside and eventually the
dogs stopped fighting, though the parties disagree about what
caused the fight to end. Wilson suffered a broken arm as a
result of the dog bite, and she was required to undergo
rabies shots when Baby's vaccination history was not
Saulsburys sued Wilson in magistrate court to recover
hospital and veterinary expenses. Wilson answered,
counterclaimed, and successfully transferred the case to
superior court because her claims exceed $15, 000. The
Saulsburys moved for summary judgment on Wilson's claims,
and the trial court denied the motion. This appeal followed.
Saulsburys argue they were entitled to summary judgment
because Wilson assumed the risk of harm as a matter of law
when she intervened in a dog fight with her bare hands. We
brings her cause of action pursuant to OCGA §
51-2-7 which provides, in relevant part,
[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 may be liable in
damages to the person so injured. In proving vicious
propensity, it shall be sufficient to show that the animal
was required to be at heel or on a leash by an ordinance of a
city, county, or consolidated government, and the said animal
was at the time of the occurrence not at heel or on a leash.
of whether Saulsbury's dog, Baby, would be considered a
"vicious or dangerous animal" pursuant to this
statute, Wilson cannot recover if she assumed the risk of
harm by using her bare hands to break up a dog fight.
Assumption of risk in its simplest and primary sense means
that the plaintiff has given [her] express consent to relieve
the defendant of an obligation of conduct toward [her] and to
take [her] chance of injury from a known risk. The result is
that the defendant is simply under no legal duty to protect
(Citation and punctuation omitted.) Lundy v. Stuhr,
185 Ga.App. 72, 75 (363 S.E.2d 343) (1987).
The defense of assumption of the risk of danger applies when
the plaintiff, with a full appreciation of the danger
involved and without restriction of her freedom of choice
either by the circumstances or by coercion, deliberately
chooses an obviously perilous course of conduct. A defendant
asserting an assumption of the risk defense must establish
that the plaintiff (1) had knowledge of the danger; (2)
understood and appreciated the risks associated with such
danger; and (3) voluntarily exposed herself to those risks.
The knowledge requirement does not refer to a comprehension
of general, non-specific risks. Rather, the knowledge that a