Fellers v. Carson

Benham, Judge. On February 19, 1984, appellee was bitten by a cat owned by appellants. Appellee received the injury, which became seriously infected, while attempting to remove the cat from her yard. This interlocutory appeal is from the denial of summary judgment to appellants in appellee’s suit against them. We reverse. This case is controlled by the holding in Brown v. Pierce, 176 Ga. App. 787 (338 SE2d 39) (1985). Here, as there, the defendants put into the record positive evidence that they had no knowledge of the animal ever biting anyone before; the plaintiff had no evidence to the contrary. Under that state of the record, appellants here are entitled to summary judgment just as the appellees in Brown were. Appellee offers several theories to distinguish this case from cases such as Brown, but we find them unavailing. There is no authority for appellee’s assertion that cat bite cases should be treated differently than dog bite cases. Even if we were inclined to adopt appellee’s public policy arguments against a “first bite” rule, we note, as we did in Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984), that the Supreme Court has also endorsed the doctrine. Harvey v. Buchanan, 121 Ga. 384 (49 SE 281) (1904). We also note, as we did in Brown, that the ruling in this case may have been different if the injury had occurred after July 1, 1985, the effective date of the 1985 amendment to OCGA § 51-2-7. However, given the circumstances of the case, including its timing, appellants were entitled to summary judgment and the trial court erred in denying it. Judgment reversed. Banke, P. J., and Carley, J., concur.