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Durham v. Mason6/24/2002
Michael Durham, through his father and next friend James Durham, sued Conney and Linda Mason for injuries he suffered when the Masons' dog bit him. The trial court granted summary judgment to the Masons on a number of grounds, including their lack of superior knowledge about the dangerous propensities of their dog and Michael Durham's assumption of the risk of interacting with the dog. We affirm on these two grounds.
The undisputed facts show that after school on March 5, 1998, twelve-year-old Michael Durham and his friend Steven Mason went to the Mason residence to retrieve Steven's in-line skates so the two could go skating. Steven's parents (defendants Linda and Conney Mason) were not home and the house was locked, so Steven entered through a rear window. Michael, who was already wearing his skates, entered the house as well. The Masons' dog, Taz, a black Labrador mixed breed, was in the kitchen on a leash tied to the pantry door.
At this point, the boys' testimony diverges. We base our judgment on Michael's version of events because, in reviewing a motion for summary judgment, we consider the facts in the light most favorable to the non-movant. Michael testified that he stood near the entrance to the kitchen while Steven got a snack. Michael began petting Taz, who jumped up and bit his ear, apparently without provocation.
Michael, through his father and next friend, sued the Masons, alleging that he had been an invitee in their home and that they had failed to adequately control their dog and ensure his safety. The Masons moved for summary judgment on multiple grounds, including their lack of superior knowledge of any dangerous tendencies of their dog and Michael's assumption of the risk. The trial court granted them summary judgment on these grounds, as well as on several others that we need not consider.
1. OCGA ยง 51-2-7, which sets forth the liability of owners of vicious or dangerous animals for injuries caused by those animals, states in relevant part:
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.
Unless there is evidence that the animal was not "at heel or on a leash" as required by local ordinance at the time of the incident, a plaintiff in a dog bite case must show that the owner had knowledge that the dog had the propensity to commit the act that caused the injury. "The true test of liability is the owner's superior knowledge of his dog's temperament." If the plaintiff does not present evidence that the owner had superior knowledge of his dog's temperament, then the owner is entitled to summary judgment.
In this case, there is no evidence that the Masons' knowledge of Taz's aggressive tendencies was superior to that of Michael. Linda Mason testified that on one occasion, apparently before he bit Michael, Taz had either "snapped" or "growled" at two young girls who were visiting her daughter. She further testified that Taz had never bitten or tried to bite any member of her family. Conney Mason testified that Taz was "absolutely loveable" and that he had no knowledge of the dog ever being aggressive except once when Taz barked and growled at a burglar. Steven testified that Taz once chased another boy in the Masons' yard, but only after Steven and the boy tried "to make him chase us because it was fun trying to run from him." Steven stated that he had never seen the dog act aggressively toward anyone else.
Michael Durham, on the other hand, testified that he had inte
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