Wyno v. Lowndes County

The trial court erred in dismissing the plaintiff's action against the county employees in their individual capacities based on official immunity in a suit arising after a dog attacked and killed the plaintiff's wife.

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Misty Wyno was attacked and killed by her neighbors’ dog. Her husband, Jason Wyno, acting individually and as administrator of Mrs. Wyno’s estate, brought this action against the dog’s owners and against several governmental defendants – Lowndes County and four individual county employees associated with the county’s animal control services – who he alleged had failed to respond appropriately to earlier complaints about the dog. The trial court dismissed the action against the county and the employees for failure to state a claim, concluding that sovereign and official immunity or, alternatively, the Responsible Dog Ownership Law, OCGA §§ 4-8-20, et seq., barred the action against those defendants. The trial court did not dismiss the action against the dog’s owners, but he did enter a final judgment under OCGA § 9-11-54 b in favor of the governmental defendants, and Wyno filed a direct appeal.

As detailed below, we affirm the dismissal of the action against the county and its employees in their official capacities pursuant to the version of the Responsible Dog Ownership Law then in effect, former OCGA § 4-8-30 2012. As to the action against the employees in their individual capacities, however, we cannot affirm. The employees are not entitled to dismissal on official immunity grounds at this stage of the proceedings. And as to the Responsible Dog Ownership Law, Wyno has argued both below and on appeal that the statute contravenes Ga. Const. of 1983, Art. I, Sec. II, Par. IX d, which governs the official immunity of employees sued in their individual capacities. Although the trial court implicitly rejected Wyno’s constitutional challenge, we cannot review that ruling because the trial court did not make it expressly. Accordingly, as to the employees in their individual capacities, we reverse the judgment and remand the case for the trial court to enter an express ruling on the constitutional challenge and for other proceedings consistent herewith.

Wyno v. Lowndes County

The trial court erred in dismissing the plaintiff's action against the county employees in their individual capacities based on official immunity in a suit arising after a dog attacked and killed the plaintiff's wife.

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