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Georgia Appeals Court Says Police Officer May Be Liable for K-9 Attack on Child

According to the American Humane Association, nearly 50% of dog attacks in the United States each year involve children under the age of 12. Bite rates tend to be higher for younger children. Young boys are also more susceptible to dog bites than girls.

Georgia law holds the owner of any “vicious or dangerous animal” liable for injuries caused in an unprovoked attack when the owner is careless or allows the animal “to go at liberty.” Many Georgia counties also require outdoor animals to be leashed or otherwise restrained. The existence of such laws is sufficient to prove the animal has a “vicious propensity” for purposes of liability.

Eshleman v. Key

While many people associate dog bites with abused or untrained animals or certain breeds (like pit bulls), even a well-cared for, well-trained animal may attack a small child. In March of this year, the Georgia Court of Appeals dealt with one such case involving a police dog. Without reaching the merits of the case, the appeals court ruled the dog’s supervising officer was not immune from suit.

The victim was an 11-year-old boy playing in his yard. The child’s neighbor was a DeKalb County police officer responsible for the supervision and care of a police dog. The DeKalb County Police Department has 12 such “K-9” animals used to track suspects and search for explosives and illegal narcotics. Each officer assigned a dog receives specialized training in handling the animal.

On the day of the attack, the officer was not on duty. She was preparing to take the dog with her on a personal trip. The officer conducted the dog to a special kennel set up in the back of her truck. The officer closed the kennel door but failed to secure it properly. When the officer stepped away for a moment, the dog escaped and ran into the neighbor’s yard. The child instinctively ran, causing the dog to chase him. The child subsequently suffered a bite wound to his arm.

The child’s father sued the officer for negligence. The officer acknowledged she failed to properly secure the dog and that he attacked the child without provocation. Nevertheless, the officer argued she was entitled to “official immunity” against suit because in caring for the dog, she acted in her capacity as a police officer, not a private citizen. A trial judge denied the officer’s motion for summary judgment on these grounds. A three-judge panel of the Court of Appeals agreed and returned the case for trial.

The appeals court explained that official immunity only applies to “discretionary” acts where a state official is free to use his or her own judgment. Conversely, there is no immunity for “ministerial” acts where the employee must follow a specific state law or procedure. In this case, the father alleged the officer violated Georgia law requiring the restraint of a vicious animal. The officer argued there were no specific policies governing the handling of police animals in private vehicles. Ultimately, the Court of Appeals said, this is a factual dispute for a jury to settle.