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Supan v. Griffin6/2/1999
r dogs have displayed menacing or aggressive behavior toward a person - behavior which might be subjectively characterized as a display of a vicious tendency or temperament - are now subject to liabilty for the first bite.
The majority opinion has the effect of implicitly overruling long-standing "first bite" precedent. Under the "first bite" rule, regardless of whether the Griffins' claim is construed as made under the "dog bite" statute, OCGA § 51-2-7, or under the premises liability statute, OCGA § 51-3-1, the result is the same. Under § 51-2-7, there is no evidence to support a finding that Supan knew or should have known that his dog had a propensity to bite a human being. Durham, 234 Ga. App. at 773; Hamilton, 235 Ga. App. at 635. Under § 51-3-1 (applying the "superior knowledge" rule in conjunction with the "first bite" rule), there is no evidence to support a finding that Supan knew or should have known his dog had a propensity to bite a human, therefore Supan had no superior knowledge making it foreseeable to him that the dog would bite a human being. Stanger, 182 Ga. App. at 499; Hackett v. Dayton Hudson Corp., 191 Ga. App. 442, 444 (382 SE2d 180) (1989). In the absence of evidence to support a cause of action under either statute, Supan was entitled to summary judgment. Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
The rule under which dog owners are protected from liability for their dogs' "first bite" sets a reasonably clear standard by which owners can gauge the risk of second bite liability posed by owning a dog known to have engaged in prior acts of biting or like conduct. The test of liability set forth in the majority opinion creates a vague standard under which first bite liability may be imposed on dog owners whose dogs had never previously engaged in biting or like conduct, but whose dogs had engaged in known conduct which might be subjectively characterized as indicative of a vicious tendency or temperament. Under the majority opinion, every dog owner in the State whose dog has growled and bared its fangs may now be subject to first bite liability based on a claim that the dog has a known vicious tendency or temperament. This test dramatically increases the risk of liability arising from dog ownership while making it virtually impossible for dog owners to determine when their dogs' conduct has placed them at increased risk. For these reasons, I Dissent.
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