Judge Tilman "Tripp" Self III Judge Tilman “Tripp” Self III (Photo: John Disney/ ALM)

The fact that a dog bites someone doesn’t necessarily prove the owner is to blame, the Georgia Court of Appeals has ruled.

A panel of three—at least two of whom admitted to being dog owners during oral arguments and one of whom has a dog with a Twitter following—reversed a trial court judge and said the case should go to a jury.

“After he was bitten on the hand by a dog, John Ogden filed suit against the dog’s owner, Katie Myers. Ogden filed a motion for partial summary judgment on the issue of negligence per se, which the trial court granted,” Judge Tripp Self wrote in a Nov. 3 opinion. “Finding that an issue of fact exists as to whether the dog was carelessly managed under OCGA § 51-2-7 at the time of the incident, we reverse the order of the trial court.” Presiding Judge Billy Ray and Chief Judge Stephen Dillard (known dog owners) concurred. They reversed Fulton County State Court Judge John Mather.

“This could be a potentially dangerous case for all dog owners,” the winning lawyer, James Merritt of Gray, Rust, St. Amand, Moffett & Brieske said Thursday. The Mather decision that the court overturned would have imposed a “strict liability standard,” Merritt said.

Merritt recalled that Dillard and Ray mentioned their own pets and asked him in oral arguments, “How could a dog owner ever win?”

Merritt represents Myers, owner of the dog in question. The bite happened on the morning of June 25 in Piedmont Park. Myers was walking her dog. Ogden was unloading equipment from a truck to prepare for a concert in the park. Myers and her dog rounded the truck and almost bumped into Ogden. Snap.

Katherine Jackson of the McAleer Law Firm in Decatur represents Ogden, the man the dog bit. Jackson could not be reached immediately.

It was a serious bite, Merritt said. He recalled that Ogden sought medical treatment that led to surgery and estimated the medical bills at about $30,000.

But Ogden may also have been “an eggshell plaintiff,” Merritt said. A previous injury to the same hand could be an issue at trial. The dog—an 80-pound rescue mutt—was no eggshell, Merritt had to admit. But in Myers’ defense, he mentioned that she is 6 feet tall and weighs 165 pounds. Her height and weight made it into the opinion. The point Merritt made is that Myers is an athletic strong woman who was capable of managing her dog and in fact took control and pulled back to immediately stop the biting.

Plus, the dog had never shown aggression before, qualifying for Georgia’s one-bite rule. “The first bite is basically a Mulligan,” Merritt said.

And Myers was not in violation of any leash law because her dog was on a two-foot long nylon, non-expanding leash at the time. The law only requires a leash no longer than six feet, Merritt said.

Merritt, owner of a 25-pound Boston Terrier, said he looks forward to helping Myers prove she was not negligent. “I think the law favors us,” he said.

To be clear, the appellate judges are not saying the dog was not at fault for the bite. They’re just saying the dog deserves a day in court. The case is Myers v. Ogden, No. A17A1779.