# Hamilton v. Walker

> Court of Appeals of Georgia · December 4, 1998 · 235 Ga. App. 635

URL: https://www.frixlaw.com/law-library/cases/9587769

## Case

- **Full name:** HAMILTON v. WALKER Et Al.
- **Court:** Court of Appeals of Georgia
- **Decided:** December 4, 1998
- **Citations:** 235 Ga. App. 635; 99 Fulton County D. Rep. 185; 510 S.E.2d 120; 1998 Ga. App. LEXIS 1567
- **Precedential status:** Published
- **Opinion:** Dissent by Banke
- **Judges:** Blackburn, Andrews, Johnson, Smith, McMurray, Eldridge, Banke
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved by Steagald v. Eason, 300 Ga. 717 (2017).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9587769

## How later opinions describe it (automated extraction)

- noting that “this Court has consistently held that the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action”

## Opinion text

Judge Harold R. Banke,
dissenting.
At issue is whether Hamilton succeeded in showing the existence of material facts as to the dangerous propensity of the Walkers’ dog. Because my review of the evidence convinces me that we cannot say as a matter of law that this animal was not vicious or dangerous, summary judgment was improper.
I question the majority’s reliance on cases decided under the former dog bite statute, which was radically amended in 1985 to eliminate language which had imposed strict liability on owners of vicious or dangerous animals. OCGA § 51-2-7. The amendment substituted the word “may” for “shall” in the following sentence. “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.” (Emphasis supplied.) OCGA § 51-2-7.
The so-called “first bite” rule mitigated the harshness of the former strict liability language. By judicial construction, the rule added a knowledge requirement to the prima facie statutory cause of action. Harvey v. Buchanan, 121 Ga. 384, 385 ( 49 SE 281 ) (1904) (“The scienter was the gist of the action.”). The present statute vitiates the need for this judge-made rule and undermines its authority. The latest amendment contemplates a showing of “vicious propensity.” Rather than turning on the owner’s actual or constructive knowledge, dog bite cases under the amended statute must necessarily focus on the degree of vicious propensity, nullifying the precedential value of authority requiring that the animal previously caused the identical harm. See, e.g., McNair v. Jones, 137 Ga. App. 13, 14 (2) ( 223 SE2d 27 ) (1975) (summary judgment granted to owner where his dog previously chased people but not motorcycles). While proof of a prior bite may conclusively establish that the animal is vicious and dangerous, under the amended law, that showing may be made in other ways as well. The pre-amendment authority allowing one free bite is no longer viable.
I am authorized to state that Presiding Judge McMurray and *638 Judge Eldridge join in this dissent.
Decided December 4, 1998
Harrison & Harrison, Anthony L. Harrison, for appellant.
Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Raleigh W. Rollins, for appellees.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587769. Public record. Not legal advice.