Thurmond v. Saffo

Barnes, Judge.

Pennie Reid sued Waymond and Shirley Saffo for injuries she received as a result of being bitten by the Saffos’ German Shepherd-Chow mixed breed dog, Rocky. C. Brooks Thurmond, trustee of the bankrupt estate of Pennie Reid, appeals from the trial court’s grant of a directed verdict in favor of the defendant. Because we find this case is controlled by our recent decision in Supan v. Griffin, 238 Ga. App. 404 (519 SE2d 22), we reverse.

A trial court should grant a motion for directed verdict “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). When determining whether any conflict in the evidence exists, the trial court “must construe the evidence most favorably to the party opposing the motion for directed verdict.” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491) (1987). “The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Skelton v. Skelton, 251 Ga. 631, 633 (4) (308 SE2d 838) (1983).

Viewed in this light, the evidence at trial showed that Reid knew Rocky from the time he was a puppy and had never had any trouble with him until the day he bit her. The Saffos kept Rocky in the garage tied to a post with a long chain. At the time of the incident, Rocky was a year and a half old, and Reid was walking through the garage toward the door which allowed entry into the den of the Saffos’ house. This was the usual manner that Reid entered the Saffos’ home, and she would visit the Saffos three or four times a week.

Reid testified that when she entered the garage on the day of the incident,

Rocky was laying [sic] down. And I looked over at him, and he looked at me. And the fire that was in his eyes was red. It was like a devil’s look. And he was getting up slowly and was *688growling. And I said: Rocky, what’s the matter. You know me. It’s Pennie. And he just rushed at me. And by the time I got ready to turn around, his front tooth went in my leg from the top. . . . And as I turned around to walk away, my — the pressure that was on me, I fell back on my wrist and shattered the bones in my wrist.

During cross-examination, Reid admitted that she had never known Rocky to bite, attack, or chase anyone.

The only evidence of a previous incident with Rocky came from the testimony of Brenda Webb and Eula May Smith. Webb testified that when she walked into the garage a week before Reid’s incident, Rocky walked slowly toward her and barked. He did not growl or snap at her. Because she believed the dog was going to attack her based on “[h]is eyes and tail,” she jumped over Mrs. Saffo’s car and went down the driveway. Webb explained that she has always been afraid of big dogs like Rocky and that she jumped over the car so the dog would not have the opportunity to bite or attack her. Webb denied repeatedly that Rocky actually attacked her that day. Finally, Webb testified that, before Reid’s encounter with Rocky, she told both Mr. and Mrs. Saffo that Rocky had barked at her and she thought that he was going to attack her. According to Webb, Mrs. Saffo then “went outside and got on to [Rocky].”

Reid’s mother, Smith, testified that she talked with Webb at the hospital after her daughter was injured. According to Smith, Webb told her that Rocky “was a bad dog because he had jumped at her. And she run [sic] and jumped up on top of the car. And then she turned around and jumped inside to keep him from getting her.”

This case is controlled by our recent decision in Supan v. Griffin, supra. In Supan, a case involving a bite on the owner’s premises, we held that the true test of liability is the owner’s “superior knowledge of his dog’s temperament.” In this case, the jury could reasonably infer from the evidence that, but for Webb’s evasive maneuver over the Safios’ car, Rocky would have bitten her just as he did Reid. Since the Safios knew that Rocky had tried to attack another person and had scolded him for this behavior, the jury in this case should have been allowed to determine whether the Safios should have anticipated the subsequent successful attack on Reid. Likewise, the jury should have also been allowed to determine whether the Safios carelessly managed the dog by failing to warn visitors, such as Reid, about Rocky’s behavior or take other action to prevent visitors from being attacked. See OCGA § 51-2-7.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, P. J, concurs specially.