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Cowan v. Carillo

The trial court erred in instructing the jury that the defendants were negligent and that the only issue for determination was damages, since the plaintiffs had not established all the elements of their dog bite claim.

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After their minor children E. G. and Y. G. were bitten by a pit bull, Rafaela Carillo and Ernesto Gurrola collectively, “the Plaintiffs” filed suit against Daniel Cowan and Sarah Arechiga, the owners of the dog.1 The trial court granted partial summary judgment to the Plaintiffs, finding that there was no material question of fact as to whether the dog was properly restrained under OCGA § 51-2-7. A jury then returned a verdict in favor of the Plaintiffs. Cowan and Arechiga appeal, contending that the trial court erred in finding that they were negligent under OCGA § 51-2-7 and by instructing the jury that the only issue for determination was damages, because the trial court had only granted partial summary judgment to the Plaintiffs as to one element of their cause of action. Cowan and Arechiga also contend that the jury’s calculation of damages was not supported by the evidence. We reverse because the trial court erred by removing the question of whether the defendants carelessly managed the dog from the jury’s consideration.

Viewed in the light most favorable to the jury’s verdict,2 the trial evidence shows that the Plaintiffs rented Unit 2-B of an apartment duplex in Lilburn, and Cowan and Arechiga rented Unit 2-A next door. The units shared a common front yard. Shortly after moving in, the Plaintiffs discovered that Cowan and Arechiga owned a pit bull. The Plaintiffs would see the pit bull outside the apartment, sometimes unrestrained, and the dog would growl at them. One time, when the dog escaped, Arechiga had to run after it. The Plaintiffs complained to their landlords about the pit bull because they felt unsafe, and they brought their children inside when they saw the dog.

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