Articles Posted in Dog Bites

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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.

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According to a recent article in the Atlanta Journal-Constitution, the Akita, Alaskan Malamute, Chow Chow, Doberman Pinscher, German Shepard, Pit Bull, Rottweiler, Siberian Husky, and Wolf Hybrid are considered “bad breeds” by many insurance companies and, in turn, are sometimes blacklisted or excluded from insurable claims. However, the article goes on to point out that one should not blame any single dog breed or dog for dog attacks, because in actuality every dog attack can be prevented. In other word, if dog owner were responsible and followed the laws, the dog would not be in a position to attack and innocent victim on the streets.

Dog attacks can happen with any breed and at any time, so long as the dog is allowed to roam or is not properly restrained and has the opportunity to attack. In addition, some dog owners, especially the owners of pit bulls, train the dogs to fight to the death for sport (i.e., dog fighting for betting, which is still fairly popular in some circles). However, the dog is not able to distinguish between sport and real life, and if left to its own devices and left un-restrained to roam the streets, can caused serious injury and even death. These attacks are horrific and senseless and more needs to be done by Atlanta animal control to stop these dogs from being allowed to roam neighborhood streets.

Recently, I represented a very nice woman who was gardening in her backyard one pleasant Saturday morning when not one, not two, but THREE pit bulls ran up on her and viciously attacked her. She was badly attacked and was taken to the Emergency room and was immediately admitted to the hospital after the ER due to the attack. It turns out that the dogs were left in a yard after the family had vacated the house and the dogs escaped through a hole in the fence (which the owner was aware of but simply placed a trash can in front of in a veiled attempt to contain the dogs in the yard). Once again, this is a needless attack, one in which we were able to hold the dog owner fully liable for. Importantly, allowing your dog to roam the streets is a violation of the local leash laws and subjects the dog owner to liability for the attack to the fullest extent allowed by law.

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As the previous blog related to dog bite cases illustrates, we have been following the recent catastrophic dog attack in southwest Atlanta. Now, after the senseless loss of an innocent child’s life and the hospitalization of another young child, the Atlanta neighbors have told the AJC that pit bulls routinely wander their streets. According to a recent article, it is not uncommon on the westside of Atlanta to see dangerous dogs roaming the streets. According to the article, “there are so many that Fulton County animal control officers could easily remove 100 dogs from the streets if they had the manpower” according to Oliver Delk, director of Fulton County’s animal services.

Dog bites can cause the following injuries:

  • puncture wounds and lacerations;
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According to this recent Atlanta Journal Constitution article, one child is dead and another was seriously wounded when three pit bulls attacked them while they were on their way to school on a street in southwest Atlanta. It is hard to imagine a more senseless killing.

According to AJC reporter Alexis Stevens, it was “an extraordinarily savage attack, two dogs that had wandered over from another street set upon the children as they walked to their bus stop.” One of the children later died at the hospital, while the other underwent emergency surgery at Egleston Children’s Healthcare and was in stable condition after the surgery.

The Atlanta Police Department apparently arrested the owner of the dogs and charged him with reckless conduct. Additional charges, if any, would be the decision of the Fulton County District Attorney, Paul Howard.

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If you are the victim of a dog bite attack, it is important to identify the owner of the dog and to determine where the owner lives and whether the owner has homeowner’s insurance that will cover the damages related to the dog attack. Fortunately, Georgia has a statute which allows the dog bite victim to discover all insurance that may cover the loss. Pursuant to O.C.G.A. § 33-3-28, the victim should request from the dog owner to provide within 30 days the insurance information for each known insurer which may provide coverage for the attack, such as homeowner’s policy or umbrella policies written for the homeowner.

Damages for such an attack normally include compensation for past and future medical bills, lost wages, and pain and suffering. The pain and suffering figure is provided to compensate the victim for being attacked, and for having to live the rest of their life with a permanent scar, as well as the emotional trauma and fear which sometimes accompanies the dog bite victim in the future. The personal injury/physical damages are affected by the location of the attack and scars, the age, race and gender of the victim (with a young African-American female more likely to be more affected by scarring due to her relatively young age, being female and the propensity for African-Americans to develop keloid scars which are much more pronounced and almost always require revision surgery or are permanent). Emotional damages would be impacted by the extent of  the scars, whether they will heal over time, and to what extent the incident have affected the victim emotionally. The emotional aspect of damages in these types of case should not be underestimated. Being attacked by a vicious dog is a traumatic event and can be emotionally debilitating for some victims. Future psychological care and treatment, the inability to freely come and go as they please and a fear of similar situations as that which precipitated the attack are all relevant inquiries that must be factored into any settlement of these types of cases. 

Most dog bites are clear liability cases against the insured homeowner. The attack usually occurs following the owner leaving the dog unattended, without required tags, and/or unleashed in the yard, which is not properly enclosed. As a direct result of the negligence, the dogs escape and, more often than not, viciously attack the victim. Most county’s animal control laws require the owner to secure their dogs in a manner that would have prevented them from escaping, and the attack constitutes negligence per se of violating the law. 

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According to a recent webmd article, dogs attack and bite over 4 million Americans every year, half of these attacks are on children between ages 5 and 9. One out of every five of those bites causes an injury that requires medical attention, according to the Centers for Disease Control. Children are also more likely than adults to be injured by a dog bite and the severity of the injuries that children sustain are often much more severe than those that adult dog attack victims suffer because children are, in many cases, unaware of the dangers of the dogs and helpless against an attack.

Although strays or other strange dogs can bite, most of the time people are actually bitten by a dog they know, which could be a friend’s dog or even the family pet. Other times, a loose dog in the neighborhood comes up upon a child and attacks.

In order to prevent dog bites and attacks: