Plaintiff and her son were denied the chance to present their case at trial by the Georgia Court of Appeals in Swanson v. Tackling, (No. A15A2378, Ga. App. February 24, 2016).
On April 26, 2012, Jessica Tackling and her seven-year-old son J.R., along with Jessica’s boyfriend Matthew Day, went to spend the weekend with Julia and Dave Swanson. They were Matthew Day’s mother and stepfather.
Julia Swanson greeted them and then introduced them to the Swansons’ Great Danes who were gated off in another room. One of the dogs, named Willow, put her head over the gate close to J.R. and barked directly into the child’s face.
The dog’s conduct made Jessica Tackling uncomfortable, and she told Matthew Day that she did not want Willow loose around her son at any time. Mr. Day did not share this information with the Swansons.
The next morning J.R. wanted to give Willow a stuffed animal toy that the dog liked. As J.R. entered the room where the dogs were located, Willow approached and bit him in the arm in which he was carrying the toy. J.R. began to scream and cry. As J.R. bent over, the dog then bit him in the head. Julia Swanson restrained the dog immediately, and J.R. was taken to the hospital.
On March 24, 2014, Jessica Tackling brought a personal injury suit against the Swansons as J.R.’s mother, next friend, custodial parent and natural guardian. She alleged the Swansons were negligent in failing to maintain control over their dog despite their knowledge of the dog’s vicious propensities.
After discovery was completed, the Swansons moved for summary judgment, claiming there was no evidence that the dog had ever displayed any vicious tendencies in the past. The Lee County Superior Court denied their motion, and the Georgia Court of Appeals granted interlocutory review.
According to the Court of Appeals, a plaintiff is required to produce evidence of the vicious propensity of the dog in these kinds of cases. Such evidence demonstrates a defendant’s superior knowledge of the danger.
In this case no evidence was produced that tended to show the dog had ever bitten or attempted to bite anyone in the past. Nor was there any other evidence that might put the Swansons on notice that their dog might bite someone.
The Court of Appeals ruled that under these circumstances, the Swansons were entitled to summary judgment in their favor.