Articles Posted in Dog Bites

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Many arguments between dog owners and others start with the picking up of the dog feces. Where do they end? Well sometimes they end with a dog attack and serious injuries. In the City of Atlanta, dog owner have many duties when it comes to their dogs. One such duty is to clean up after them. The City code is as follows:
Sec. 18-9. – Removal of canine fecal matter.

(a) It shall be unlawful for any person owning, possessing, harboring or having care, charge, control or custody of any dog not to remove any feces left by that dog on any sidewalk, gutter, street, lot or other public area. Dog waste shall be immediately removed by placing said matter in a closed or sealed container and thereafter disposing of it in a trash receptacle, sanitary disposal unit or other closed or sealed refuse container.

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There are many different jurisdictions in the metropolitan Atlanta area and many of these have different codes or statutes which impute liability to dog owners when there is a dog attack that results in personal injuries. One thing is for sure though, there is no longer the “one bite rule” in Georgia, or to be more specific, a dog does not have to have bitten someone before for the owner of that dog to be liable for damages caused by the attack. For instance, the rule of law in Cobb County, holds dog owners to an even higher standard.  Pursuant to Cobb County Code of Ordinance, § 10-11, “It shall be unlawful for the owner of any animal to permit such animal to be out of his immediate control and restraint… .” 10-11 (2) (b) defines restraint when off the owner’s premises as “…all animals shall at a minimum be maintained on an appropriate chain, leash, or tie not exceeding six feet in length, and in the hands of a person who possesses the ability to restrain the animal.”

It follows that liability to the owner attaches where the dogs are leashed in Cobb County (and other municipalities in and around Atlanta that have similar leash laws) if the victim of the dog bite can prove:  (1) that the dog was vicious; or (2) that the dog is a dangerous animal; or (3) a violation of heel or leash laws. Cobb county defines vicious and dangerous differently but, for purposes of this analysis, either can be proven in order to prevail against the defendant dog owner.

In Steagald v. Eason, (300 Ga. 717, 2017) the Georgia Supreme Court ruled that liability could attach to the dog owner under O.C.G.A. § 51-2-7, even if the attack took place in the dog owner’s home or fenced in yard. Under O.C.G.A. § 51-2-7 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 conduct my be liable for damages to the injured person. In coming to its conclusion in the Steagald case, the Supreme Court of Georgia first noted that the rule [for liability] “does not literally require a first bite.” It then went on to discuss how, to show the requisite knowledge of the dog’s propensity to bite, could be satisfied by a number of different incidences, not just from a previous bite. “If there is an incident or incidents which would put a prudent man on notice to anticipate the even which occurred” then the owner’s knowledge may be inferred. In doing so, the Supreme Court of Georgia made clear that, to the extent that the appellate court has ruled otherwise, they are overruled.

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Pit bull attacks continue to dominate the number of dog attack cases in Georgia, especially when it comes to fatal attacks on young children. Two pit bulls killed a 20-month-old boy at his grandmother’s house in Hart County, Georgia, and she is now faces criminal charges related to the attack, according to recent reports.

While it is rare that dog bite cases result in criminal charges beyond citations from animal control for failing to properly maintain control of the dog and allowing it to attack someone, civil actions are much more common, as this is the usual course of action to hold the dog owner liable for the damages inflicted by the dogs after an attack.

In addition to the leash laws related to the proper control of dogs that a Georgia homeowner owns or has in its custody of control, the Georgia Code of civil procedure provides as follows:

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With warm Georgia weather comes a rash of dog bite cases. This happens every year and this year is no different.

Georgia’s dog bite statute which is found at O.C.G.A § 51-2-7 provides:

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. The foregoing sentence shall not apply to domesticated fowl including roosters with spurs. The foregoing sentence shall not apply to domesticated livestock.

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There are now almost 4.5 million dog bites in the U.S. each year and with the rise in dog bites is a corresponding rise in the payouts by liability insurers such as State Farm, Allstate and other large insurers who write homeowner’s insurance policies in the U.S.

Sadly, most of the attacks involve children and pit bulls, although there are other breeds that have a higher incidence of attacking such as the German Shepard, Chow, Akita, and Sharpei.

Most payouts are made to the injured dog bite victim from the dog owners insurer, and most times, the insurer is the insurance company who wrote the owner’s homeowner’s policy or (much less often) renter’s policy. Because of this, it is important that you determine the owner’s identity and residence as soon as you can, if you are bitten someone else’s dog.

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I have noticed a marked increase in declaratory judgment actions being filed by insurers of defendants in personal injury, premises liability, wrongful death and dog bite cases. The usual basis for the declaratory judgment action is that the insurer asserts in its pleadings that there is no insurance for the event that caused the injury, most often claiming that an exclusion in the policy applies. It has been my experience that most declaratory judgment actions are mere posturing by the defendant’s insurer and any response to a declaratory judgment actions should not concede any issues that are in contention. Below is a sample response to a declaratory judgment action. Similar responses have been filed in other cases. Obviously, every case is different and the following is solely as sample and should not be used for anything but educational purposes or for a new lawyer to familiarize herself with what a response might look like before drafting her own response to a motion for declaratory judgment.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

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As recently reported by the AJC, the Supreme court of Georgia, has recently weighed in on the subject dog bite cases. What it was important for the court to address this issue, the court did nothing more than make clear what the law has always been, or at least should have been construed. Under Georgia law, a person who owns a vicious dog can be found liable if the animal gets free and attacks someone. But the law does not presume that dogs are vicious; in fact, they are considered to be “a harmless species.” For dog-bite victims to prevail, the plaintiff must show the dog owner knew that his dog had a propensity for violence. In the past, Georgia’s courts have cited the “first bite rule” — that the dog had previously bitten someone and the owner knew about it. But, what about if the dog had gotten away in the past and had  viciously attacked other dogs but not people or had shown a vicious propensity but had not actually bitten other people before the attack in question. The Georgia Court of Appeals had previously dismissed the plaintiff’s suit, finding that the prior incidents of defendant’s dog snapping at family members of the Plaintiffs amounted to “merely menacing behavior,” particularly with no evidence the dog had previously attacked anyone. Since the litigants in this case are neighbors, the decision certainly has potential for a far-reaching impact on litigation that occurs quite often in Georgia, i.e., one neighbor being bitten by another neighbors dog or dogs.

On Monday, the Georgia Supreme Court overturned that ruling and said a jury should decide whether the defendants had reason to know that their family dog was vicious. According to the well-written opinion, “a rational finder of fact could infer reasonably, we think, that [defendant’s dog] snapping at [Plaintiff’s family] amounted to the dog attempting to bite [],” Justice Keith Blackwell wrote. “An attempt to bite in the absence of provocation most certainly may be proof of a propensity to bite without provocation.”

In the past, Georgia’s courts have cited the “first bite rule” — that the dog had previously bitten someone and the owner knew about it. However, as I have written many times in the past, this is not really the law in Georgia (it applies in only very few circumstances) and, now the Georgia Supreme Court has made clear that this is no longer the case.
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As we reported earlier, a City of Atlanta boy was the victim of a pit bull mauling and he unfortunately lost his life due to this senseless attack within the City of Atlanta city limits. Now, Fulton County leaders are apparently getting set to ask the City of Atlanta for funding to add 3 more animal control officers.

What many people, even those living in the City of Atlanta, don’t realize is that the City does not perform animal control services itself, but contracts with Fulton County (and presumably Clayton and DeKalb Counties in portions of the City that are in those two counties) to perform these services. Some higher-ups in Fulton County have mused about whether it would be better for the City of Atlanta to perform these services themselves. Well, I don’t know the answer to that, but I do know this: whoever is performing these services now (by all accounts it is Fulton County) is doing a horrible job, and maybe the City of Atlanta can provide a better service by doing it directly.

As an Atlanta personal injury attorney who handles dog bite cases on a regular basis, I believe more should be done to punish those who allow their dogs to run free. This should be in the form of civil (i.e., a lawsuit brought by the victim of the attack or their family to recover all of the damages caused by the attack) and criminal (i.e., a proceeding brought by the city or county in which the attack took place) penalties. I also think that pit bulls should be banned from the City and county as they are, in my opinion, inordinately involved in attacks, and certainly inordinately involved in the more vicious attacks. Most, if not all of, the dog bite cases that I have been involved with have involved pit bulls. The scenario is all too often played out like this. The owners of the pit bulls leave them unattended in the yard, all day in many cases. The dogs escape through a hole in the fence or an open gate and run the neighborhood (usually in packs of 2, 3 or 4) and devastate anyone or anything in their path. This kind of destruction can take the form of attacks on other dogs, cats, property, adults, or even usually in the most tragic cases, helpless little boys and girls who cannot fend off these pit bull dogs who, in many cases, are bred to kill.

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Atlanta dog attacks are making the news these days. In this recent story the mom of a boy who was brutally attacked by pit bulls who were unattended in the yard next to the boys house in Gwinnett County. The 7-year-old needed almost 300 stitches and he lost one ear while the other was hanging on by a thread of flesh. When will this nonsense stop and pit bulls be outlawed. It is a shame that a breed has been so ruthlessly wrecked, but the sad reality is that day after day, and especially here in the Atlanta area, we hear about innocent boys and girls being mauled by dogs. Some are seriously injured and some have even died, and invariably almost all of the attacks are by pit bulls. Enough is enough, these dogs need to be outlawed. Pit bulls are now banned in 12 countries, including Canada. It is time they are banned in the United States.

Whether pit bulls are banned or not, brings little solace to a mother whose little boy must have his ear attached or another mother who recently lost her little boy to a pit bull attack. In the case of the boy who had to have his ear attached, the families personal injury attorney who is representing the family for the dog attack case told the AJC that the dog’s owner “is facing a maximum penalty up to 12 months in jail and a $1,000 fine for reckless misconduct, if he is convicted.” The unbelievable truth is that, in this case, the dog owner surrendered only 2 of his dogs and he still has two more dogs — and they are pit bulls! This is insanity. When will we stop allowing people’s rights to own a pet trump the rights of our children to be safe in the own yards and neighborhoods.

Justice in this case should be meted out in the form of a civil lawsuit. The pit bull owner should pay for all damages that his dogs have caused. This should include compensation for past and future medical bills and pain and suffering that the little boy endured during the attack, as well as the emotional pain and suffering that the boy will suffer in the future. Anyone who knows these types of case knows that the damages in this case approach $1M or more.

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Over the course of one week, 3 victims were recently attacked by vicious dogs in the same southwest Atlanta neighborhood. Not only is the number of attacks noteworthy, but the seriousness of the injuries is particularly disturbing. In one dog bite incident a 6 year-old boy was viciously attacked by a number of pit bulls that were loose and wandering the neighborhood. Unfortunately, the young boy lost his life due to the savage attack. In a related incident, a young girl who was waiting for the school bus with him was also attacked and rushed to the hospital. She ultimately survived the attack but will require a long hospital stay with the prospect of permanent injuries due to the attack.

Most dog bites on children result in permanent physical and mental scarring. Many of these dog attacks are covered by homeowners insurance. Insurance companies typically under-value these type of claims. They routinely play down the extent that permanent scarring affects a child and they also place little value in the emotional trauma that almost always accompanies a dog attack on a child. This is something that should not be allowed to take place, as the insurance adjuster must fully evaluate all aspects of a claim in order to properly adjust (i.e., value) the claim. Most insurers for the potential defendant, that is the negligent dog owner who puts his or her dog in a position to attack someone unrestrained, want to value these claims by simply tallying the medical bills and paying some form of a multiple of the medical bills. For a number of reasons, this has never been an accurate indicator of the true value of these types of dog bite cases. However, insurance companies started to value these types of cases and other personal injury cases this way, and plaintiff lawyers allowed them to do this. However, this has never resulted in fair valuation to the child plaintiff in these cases and it should not be allowed to be used in any case. Why? Because it will almost always result in the child plaintiff receiving less money in settlement than she would get when the case is properly evaluated by looking at all of the relevant factors that comprise damages in a dog bite on child case. So what are these elements of damages? Well, since you asked, some examples of damages are, but are certainly not limited to: (1) psychological and emotional damages that stem from the attack which can include a fear or phobia of dogs, a fear of doing the same activity that the victim was doing when the attack occurred, a fear of going outside or a generalized anxiety caused by the incident; (2) post traumatic stress disorder caused by the attack; (3) past and future medical bills related to the medical treatment necessary to treat the wounds from the attack; (4) a decreased ability to work and labor once the child is old enough to start working; and (5) general pain and suffering caused by the attack. Obviously, every case is different and this list of damages is in no way complete or exhaustive. However, it does illustrate the TYPES of damages that insurance adjusters for the negligent dog owners simply want to ignore.

Robert J. Fleming has been handling dog bite cases, dental malpractice, bus accidents, car accident cases and premises injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.