Child Trespass and Dog Bites
In Georgia, the general rule which indicates that a property owner has no duty to a trespasser except not to willfully or recklessly injure them applies equally to both trespassing adult and children of tender years. Trammell v. Baird, 413 S.E. 2d 445, 446 (Ga. 1992). Age or capacity, mental or physical, has no effect on a child’s legal status as a trespasser. Wren v. Harrison, 303. S.E. 2d 67, 70 (Ga. Ct. App. 1983). Unless a property owner is liable through other means for injuries sustained while trespassing, a child’s inability to appreciate the danger of particular circumstances does not render an owner liable. Id. at 69-70. Thus, a dog owner is likely not liable for injuries such as dog bites sustained by a trespassing child on their property, assuming that the child was not willfully or recklessly injured.
The attractive nuisance doctrine has long served as an exception to the harsh rule of minimal duty to trespassers in order to protect infant trespassers, heightening the duty owed by property owners to children under particular circumstances, regardless of their status as trespassers. Biggs v. Brannon, 329 S.E. 2d 239, 241 (Ga. Ct. App. 1985). However, there is still uncertainty as to whether the doctrine applies to cases concerning injuries sustained from an animal. Under the attractive nuisance doctrine, possessors of land are liable to trespassing children for physical injury caused by an artificial condition on the land if (1) the place here the condition exists is one where the possessor knows or has reason to know that children are likely to trespass, (2) the condition is one which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (3) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (4) the utility to the possessor in maintaining the condition and burden of eliminating the danger are slight compared to the risk to children involved, and (5) the possessor fails to exercise reasonable care in eliminating the danger or to otherwise protect the children. Gregory v. Johnson, 289 S.E.2d 232, 234 (Ga. 1982).
While there is a shortage of dog bite cases featuring the attractive nuisance doctrine in Georgia, several other jurisdictions have been reluctant to extend the scope of the attractive nuisance doctrine to include either wild or companion animals. See Hampton v. Hammons, 743 P.2d 1053, 1061-1062 (Okla. 1987) (reasoning that domestic animals are too common to arouse any special attractiveness to children); Dykes v. Alexander, 411 S.W.2d 47, 49 (Ky. Ct. App. 1967) (noting that not everything attractive to a child is an attractive nuisance). Dependent on whether the jurisdiction considers companion animals to be under the scope of the attractive nuisance doctrine and if all attractive nuisance conditions are met, a property owner may or may not be liable for any bite injuries sustained by trespassing children. Thus far, there has been little case law to clarify whether animals fall under the scope of the attractive nuisance doctrine under Georgia law.
It is important to note that, while a cause of action from a trespassing child injured by dog bite is not likely to be successful under the attractive nuisance approach, a dog owner can still be liable for injuries under either premises liability (O.C.G.A. § 51-3-1) for injuries on their property or the dangerous animal liability statute (O.C.G.A. § 51-2-7) to non-trespassing children and adults alike. Under either approach, proof is required that (1) the dog possessed a vicious propensity to do the act that injures and (2) that the owner had knowledge of that propensity. Custer v. Coward, 667 S.E.2d 135, 136 (Ga. Ct. App. 2008); Hamilton v. Walker, 510 S.E.2d 120, 120-121 (Ga. Ct. App. 1998).
O.C.G.A. § 4-8-21 (b) indicates an exception where dogs that bite will not be considered dangerous or vicious if the person injured was committing a trespass at the time of injury. Given that a child’s age has been held to be irrelevant in their status as trespasser, it seems likely that this exception may also include injured infant trespassers. Under Georgia law, owners of dangerous or vicious animals may be liable if they injure another person either by careless management or allowing their animal to go at liberty, assuming the attack is unprovoked by the other party. Ga. Code. Ann. § 51-2-7 (2013). With the exception for injuries sustained while trespassing in mind, it would appear that owners may not be later liable under either through premises liability or the dangerous animal liability statute if the dog’s history only indicates injuries on a trespassing child.