                             SECOND DIVISION
                               MILLER, P. J.,
                          DOYLE, P. J., and REESE, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    January 31, 2018




In the Court of Appeals of Georgia
 A17A1526. WEINSTEIN v. HOLMES et al.

      MILLER, Presiding Judge.

      This 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.1

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


      1
       The appeal in the companion case between Teddy’s owners and the Holmeses
has been withdrawn.
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 nonmovant.


(Citations omitted.) Custer v. Coward, 293 Ga. App. 316, 317 (667 SE2d 135)

(2008).

      So 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




                                         2
shoulders. A few moments later, Holmes put leashes on her dogs and, as she opened

the gate to the park, the dogs charged out.

      Weinstein 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.

      Weinstein 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.2 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.



      2
          Holmes paid the off-leash citation. The other citation was dismissed.

                                           3
      Weinstein 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.

      Holmes 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.

                                         4
      The 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.

      In her 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.

      It is well-settled that

      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, the
      true test of liability is the owner’s superior knowledge of [her] dog’s
      temperament.


(Citations, punctuation, and footnotes omitted.) Raith v. Blanchard, 271 Ga. App.

723, 724 (1) (611 SE2d 75) (2005).

                                             5
      To obtain punitive damages in such cases, however, the plaintiff must show “by

clear and convincing evidence that the defendant’s actions showed willful

misconduct, malice, fraud, wantonness, oppression, or that entire want of care which

would raise the presumption of conscious indifference to consequences.” OCGA

§ 51-12-5.1 (b). “Whether the tort was sufficiently aggravating to authorize punitive

damages is generally a jury question.” (Citation omitted.) Weller v. Blake, 315 Ga.

App. 214, 219-220 (3) (a) (726 SE2d 698) (2012).

      The issue, therefore, is whether Holmes had knowledge of her dogs’ propensity

to charge uncontrollably and aggressively towards other dogs and people. Further, to

permit the issue of punitive damages to reach the jury, we need only conclude that

there is a genuine issue of fact as to whether Holmes’s actions showed “willful

misconduct, malice, fraud, wantonness, oppression, or that entire want of care which

would raise the presumption of conscious indifference to consequences.” Powell v.

Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991).

      “[T]o infer the requisite knowledge, there must be at least one incident that

would cause a prudent person to anticipate the actual incident that caused the injury.”

(Citation and punctuation omitted.) Steagald v. Eason, 300 Ga. 717, 720 (797 SE2d

838) (2017). Nevertheless, Weinstein need not show that Holmes was aware of an

                                          6
identical incident, “as long as there is an incident or incidents which would put a

prudent [woman] on notice to anticipate the event which occurred.” (Citation and

punctuation omitted.) Torrance v. Brennan, 209 Ga. App. 65, 67-68 (2) (432 SE2d

658) (1993). In other words, the prior incident need not be identical as long as it puts

the owner on notice of the risk of an actual attack. Steagald, supra, 300 Ga. at 721.

Thus, “when the evidence shows that an owner or keeper knows of such an attempted

[attack] . . . it may well be sufficient to establish knowledge of a propensity to

[attack].” (Citation omitted.) Id.



      Here, the evidence shows that Holmes was walking two dogs that collectively

weighed almost as much as she did, and on the day of the attack, she lost control of

Lacy’s leash. Holmes admitted that she did not want her dogs to interact with Teddy,

and that the dogs still had a lot of energy as they left the gated area of the park. And

despite Holmes’s testimony that she was able to control the dogs when she walked

them, there was evidence from Holmes’s neighbors that there had been a prior

instance in which Holmes lost control of her dogs, which allowed the dogs to act

aggressively and attack another dog. That neighbor further testified that he believed

that it was only his intervention that prevented an injury on that occasion. Moreover,

                                           7
Holmes admitted that Lacy was not usually aggressive “unless [Lacy] saw a dog that

she wanted to play with.”

      We must construe the facts in the light most favorable to Weinstein, as the non-

movant, and these conflicts in the evidence create a jury question about Holmes’s

knowledge of the risk her dogs posed to Weinstein. See Osowski v. Smith, 262 Ga.

App. 538, 540 (1) (586 SE2d 71) (2003); Service Merchandise, Inc. v. Jackson, 221

Ga. App. 897, 898 (1) (473 SE2d 209) (1996) (“It is the jury, not the court, which is

the factfinding body. It weighs the contradictory evidence and inferences, judges the

credibility of witnesses, receives expert instructions, and draws the ultimate

conclusion as to the facts.”). Contrary to the trial court’s finding, the fact that the

prior incident did not cause an actual injury is not dispositive. Rather, all that is

required is that the prior incident put the owners on notice that an attack could occur.

Steagald, supra, 300 Ga. at 721. The evidence here satisfied this requirement.

      Holmes’s knowledge of the risk is not the end of the inquiry, however. The jury

is also tasked with determining whether the actions Holmes took on the day of the

incident showed the requisite want of care or conscious indifference to the

consequences that would warrant punitive damages. Weller, supra, 315 Ga. App. at

219 (3) (a).

                                           8
      We have not often addressed the availability of punitive damages in aggressive

dog cases. In Parsons v. Ponder, 161 Ga. App. 723 (288 SE2d 751) (1982), this Court

concluded that the issue of punitive damages was for the jury to decide where there

was more than one prior incident, the neighbors testified to a prior attack, and the

owner had been asked to keep the dog locked up. 161 Ga. App. at 724 (2).

      Here, there was evidence that Holmes weighed little more than the combined

weight of her dogs, on at least one other occasion she had lost control of both dogs

and that on the prior occasion a neighbor had to intervene to prevent injury to another

person. Additionally, Holmes knew that Lacy still had a lot of energy when they left

the dog park and she testified that Lacy was “usually calm and not aggressive”

“unless [Lacy] saw a dog that she wanted to play with.” Nevertheless, Holmes

attempted to leave the dog park with both dogs while Teddy was present. On these

facts, it is for the jury to determine whether Holmes acted with “that entire want of

care which would raise the presumption of conscious indifference to consequences.”3

OCGA § 51-12-5.1 (b). Compare Powell, supra, 198 Ga. App. at 466 (summary


      3
        We express no opinion as to what steps Holmes could – or should – have
taken. Nor do we imply that punitive damages should be awarded in this case. That
determination is solely within the province of the jury after weighing the evidence
and considering the credibility of the witnesses.

                                          9
judgment on punitive damages issue warranted where there was evidence that the

owners took appropriate precautions to keep the dog contained and to keep the dog

separated when a non-family member came to the house, and the evidence showed

that the injury resulted when the owners were unaware a non-family member was in

the house).

      The trial court relied on two cases to conclude that the Holmes’s were entitled

to summary judgment on the issue of punitive damages, but neither case supports the

trial court’s conclusion. In the first case, Barking Hound Village v. Monyak, 299 Ga.

144 (787 SE2d 191) (2016), the parties had not appealed from the order denying

summary judgment on punitive damages and the Supreme Court of Georgia expressly

did not address that issue. 299 Ga. at 146 n. 3; Barking Hound Village v. Monyak, 339

Ga. App. 685, 686 n. 3 (794 SE2d 664) (2016).

      Second, the trial court distinguished Parsons, supra, 161 Ga. App. at 724 (2),

however, we do not find Parsons distinguishable from the present case. Indeed,

Parsons requires the opposite conclusion from the trial court’s finding. Holmes’s own

testimony of her knowledge that Lacy was full of energy and liked to play with other

dogs, coupled with the neighbors’ affidavits reflecting a prior similar instance of



                                         10
aggressive behavior that could have resulted in an injury creates a question for the

jury as to punitive damages under Parsons.

      Accordingly, the trial court erred in granting summary judgment to the

Holmeses on the issue of punitive damages. We therefore reverse the trial court’s

order and remand the case for further proceedings.

      Judgment reversed and case remanded. Doyle, P. J., and Reese, J., concur.




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