dissenting.
In my view, the evidence in the case sub judice raised issues of fact as to negligence, diligence, comparative negligence, contributory negligence, proximate cause, and the exercise of ordinary care for *600one’s protection which are peculiarly matters for the jury and the trial court should not take the place of the jury in solving them, except in plain and indisputable cases. See Bussey v. Dawson, 224 Ga. 191, 193 (160 SE2d 834). Consequently, I would hold that the trial court erred in granting summary judgment to defendants because there are issues of material fact in the case sub judice that must be resolved by a jury.
1. The superior court found in its findings of fact that “[o]n February 17, 1992, Plaintiff [Denise W. Rowlette] was employed by Appraisal Research, Inc. to assess property in Oglethorpe County for tax purposes. As part of her employment, Plaintiff arrived at the Defendants’ house. Plaintiff came unannounced and uninvited. Defendant Mrs. Paul saw Plaintiff and her coworker drive into the Defendants’ driveway. Mrs. Paul walked away from the window toward the rear of the house. Plaintiff believed that Mrs. Paul wanted to meet her at a side or back door, so she walked around the side of the house into the back yard. When Plaintiff entered the Defendant’s back yard, Defendants’ dog, an unaltered five-year-old beagle, jumped off the porch and onto Plaintiff. The dog lunged towards Plaintiff’s throat and bit her right chest. The dog bit her several times, including bites on her left calf and left leg. In addition, Plaintiff suffered a serious hematoma on her right breast. At the time the dog attacked Plaintiff, Mrs. Paul and . . . the Defendants’ 17-year-old daughter, were on the back porch. While the dog attacked Plaintiff, Mrs. Paul stated ‘we can’t handle the dog.’ In addition, the dog was dry when it attacked her, even though a light rain had been falling throughout the day. The dog had, approximately one year prior to this incident, bitten Mr. Paul’s uncle once on the buttocks. Mr. Paul’s uncle had surprised the dog by banging on the Defendants’ back porch. The dog bit him once in the buttocks, tearing his pants some, but not causing him to require any medical attention. Other than this allegedly vicious incident, Defendants state that the dog has never displayed any vicious behavior. Plaintiff suffered injury from the dog attack and subsequently brought this action against Defendants. Defendants move for summary judgment on the ground that they had no notice that the dog would attack a person in the manner that it attacked Plaintiff. In addition, Defendants move for summary judgment on the issue of punitive damages on the ground that no evidence exists for the imposition of such damages.”
In the court’s conclusions of law, the court found “Defendants are entitled to total summary judgment. Plaintiff has failed to show that the Defendants were aware or should have been aware of their dog’s alleged vicious propensity to attack in the way it attacked Plaintiff. In addition, Defendants are entitled to summary judgment because Plaintiff has failed to show the existence of facts which would support the imposition of punitive damages. The Court has consid*601ered the relevance of Plaintiff’s status upon the Defendants’ property, i.e. whether Plaintiff was an invitee, licensee or trespasser, but does not in any part base its decision on this point.”
OCGA § 51-2-7, as amended effective July 1, 1985, 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.”
Regarding liability vel non, defendants urge that “[t]here is no proof the dog had a vicious or dangerous character, no proof of a pattern of dangerous behavior and no proof that the Pauls knew of a propensity to attack persons as alleged by appellants.”
“To prevail on summary judgment, defendant^ were] required affirmatively to negate one or more essential elements of the complaint. Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637) (1987); Reed v. Adventist &c. Systems/Sunbelt, 181 Ga. App. 750, 752 (2) (353 SE2d 523) (1987); OCGA § 9-11-56 (c). As posed by the conflicting views of the parties, the question is whether the evidence establishes beyond a jury’s debate that defendant^] met the legal standard so as not to be liable within the terms of the statute.” Evans-Watson v. Reese, 188 Ga. App. 292 (372 SE2d 675) (1988). Moreover, “[t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80.
2. “OCGA § 51-12-5.1 (b) applies to all causes of action arising after July 1, 1987, and provides that: ‘Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant^’] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.’ . . . The issue on summary judgment [as to punitive damages] is whether, in light of the defendants’ knowledge of the previous dog bite, the actions they took or failed to take to prevent a similar occurrence amounted to evidence of wilful or wanton misconduct or that entire absence of care that raises the presumption of conscious indifference to the consequences. In Parsons v. Ponder, 161 Ga. App. 723 (288 SE2d 751) (1982) this court found sufficient evidence to support the jury’s punitive damages award when the defendant^] knew the dog had previously bitten another person, and, despite that knowledge, the dog was allowed to roam free.” Powell v. Ferreira, 198 Ga. App. 465, 466 (402 SE2d 85).
In the case sub judice, the evidence would authorize a conclusion *602by the jury that the dog was deliberately set on plaintiff Denise W. Rowlette as she was conducting the county’s business of revaluing real property for taxation and further that nothing was done to stop the attack, with defendant lamely saying “We can’t handle the dog.” This is evidence of that callous and conscious indifference to the consequences that will support an award of punitive damages, should the jury find them to be appropriate in this case. Parsons v. Ponder, 161 Ga. App. 723, 724 (2), 725, supra. Consequently, the trial court in the case sub judice also erred in granting summary judgment as to punitive damages.
Decided December 5, 1995 Reconsideration denied December 20, 1995 McArthur & McArthur, John J. McArthur, Russell & Mingledorff, Currie M. Mingledorff, for appellants. McLeod, Benton, Begnaud & Marshall, Richard L. Brittain, for appellees.I am authorized to state that Presiding Judge Pope joins in this dissent, and that Judge Blackburn joins in Division 1 of this dissent.