concurring specially.
I concur specially to address the continued viability of the “first bite” rule in Georgia. As the majority acknowledges, Georgia has traditionally adhered to the “first bite” rule, which holds dog owners liable for their animal’s behavior only if an owner knows that a dog has the “ ‘propensity to do the particular act (biting) which caused injury to the complaining party.’ ”2
The requirement that a dog owner have prior knowledge of an animal’s vicious or dangerous nature is not a statutory one but is derived from common law.3 And this knowledge requirement has been strictly applied. For example, it has been held that an owner does not have prior knowledge of an animal’s vicious or dangerous nature unless the animal has “on a prior occasion, done the same act which resulted in the injury comprising the tort action.”4
When applying the foregoing analysis, a “first bite” is essentially a “free bite.” Whatever may have been the wisdom at common law for exalting the rights of a dog owner over a victim of the owner’s dog, that time appears to have passed. A dog should have no greater right to a first bite than one has to a first murder. And as between the dog owner and a blameless victim, the owner is almost certainly in the better position to judge the dog’s proclivity to bite. Yet, under the “first bite” paradigm, one may be subjected, without recourse, to an animal’s first attack, and that animal’s owner has little incentive to guard against this potentially deadly event.
*424In Hamilton v. Walker,5 this court declined to adopt Senior Appellate Judge Banke’s dissent, which urged that the judicially imposed knowledge requirement be dropped in determining liability in animal bite cases. This, Judge Banke reasoned, would “[nullify] the precedential value of authority requiring that the animal previously caused the identical harm.”6 I believe that Judge Banke’s reasoning is sound and, if adopted, would harmonize the case law with statutory authority, which has no prior knowledge requirement.7 Such a move would also eliminate an archaic rule which has often been unjustly applied.
The majority in Hamilton, however, chose to retain the common law requirement that tort liability is predicated on proof of an owner’s prior knowledge of an animal’s proclivity to cause harm. Nevertheless, the authority supporting the “first bite” rule has been eroded through a recent line of cases. This court no longer requires that prior knowledge be established by “the first bite.” For example, in Supan v. Griffin,8 although there was no evidence of a prior bite, this court found that a question of prior knowledge of a dog’s tendency to attack humans was raised by the statement from the dog owner to a neighbor that the neighbor should “do whatever was necessary ... to keep the dogs from attacking.”9 We went on to find that “[w]ith proof regarding [the dog owner’s] prior knowledge of his dog’s vicious tendencies, the true test of liability ... is [the dog owner’s] superior knowledge of his dog’s temperament.”10
Because of these recent developments in the law, I believe that the majority should have expressly disavowed the “first bite” rule, insofar as that rule may require that an animal have previously caused identical harm before its owner can be said to have knowledge of its vicious or dangerous tendencies.11 However, based upon the current state of the law, I am constrained to concur in the result here. Although there is evidence that the dog bared its teeth and exhibited an aggressive posture toward an animal control officer, the record does not indicate that the incident was described to the Clarks, who were not home at the time, by the animal control officer in such a way as to put the Clarks on notice that the dog was vicious. *425Joiner points to no other evidence purporting to show the Clarks had prior knowledge of the dog’s propensity to attack humans. Therefore, the trial court erred when it denied the Clarks’ motion for summary judgment.
Decided February 18, 2000. Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, for appellants. Andrew A. Taylor, for appellee.(Emphasis omitted.) Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998); see also Durham v. Mooney, 234 Ga. App. 772, 773 (1) (507 SE2d 877) (1998).
Harvey v. Buchanan, 121 Ga. 384, 385 (49 SE 281) (1904).
Hamilton, supra at 635.
Supra.
Id. at 637.
OCGA § 51-2-7.
238 Ga. App. 404 (519 SE2d 22) (1999).
Id. at 406.
Id.
See also Thurmond v. Saffo, 238 Ga. App. 687 (520 SE2d 43) (1999) (acknowledging the test is the owner’s superior knowledge of his dog’s temperament); Oertel v. Chi Psi Fraternity &c., 239 Ga. App. 147 (521 SE2d 71) (1999) (casting doubt on continued validity of “one bite rule”).