Georgia’s dog bite statute confuses another Georgia court

A new case from Georgia (Cornejo v. Allen, May 5, 2023) continues the immense, Dickensian confusion emanating from the tangled mess that is the Georgia animal liability statute, OCGA 51-2-7.

The Cornejo decision begins with the erroneous assertion that Georgia has abolished strict liability. As authority for its misstatement, the court cites Cowan v. Carillo (Ga. Ct. App. 2015) 771 S.E.2d 86, which was overruled by S&S Towing & Recovery, Ltd. v. Charnota (Ga. 2020) 844 S.E.2d 730, at footnote 6. Citing a case that has been overruled is a first-year law student mistake that should never happen in court.

It’s not the only elementary mistake in the Cornejo decision. A couple of paragraphs later, the court says the attorney for the plaintiff did not cite as error the part of the trial court’s decision that related to strict liability. Thus, the court recognized that strict liability wasn’t an issue in the case on appeal, but the justices nevertheless could not resist the opportunity to spout dicta that would confuse the issue in the future. When an appellate decision goes into issues not briefed by the parties, the common law gets harder to understand.

I actually agree with the rest of the Cornejo decision, but I wish the courts would take a stance about the very badly drafted animal liability statute, OCGA 51-2-7. The problem with it is evident from this Georgia Supreme Court quote:

“[A] plaintiff seeking to recover under OCGA § 51-2-7 must still prove scienter and can do so in two ways: by showing that the owner had knowledge of the animal’s vicious propensity as defined by the common law or by showing that the owner knew that the animal was unrestrained at the time of the injury. In addition to scienter, a plaintiff seeking to recover under OCGA § 51-2-7 must also show that the owner carelessly managed or allowed the animal to go at liberty; the animal caused the injury; and the injured party did not provoke the injury by his own act.” S&S Towing & Recovery, Ltd. v. Charnota (Ga. 2020) 844 S.E.2d 730, 734-35.

The court is reiterating that OCGA requires dog bite victims to prove they have two causes of action against the defendant. Georgia is the only state I know of that forces a dog bite victim to prove two cases instead of just one. This goes against traditional common law as set forth in the Restatement of Torts as well as the statutory and decisional laws of all states except New York, the latter being as bad or worse than Georgia but for different reasons.

Georgians, fix this! Enact a modern dog bite statute like two-thirds of the USA did in the first half of the 1900s. Isn’t it about time?