Tony Osowski filed a complaint for personal injuries allegedly sustained while he was on the property of Joseph and Teresa Smith to install cable. Osowski claimed he was injured by one of the dogs that Joseph Smith had assured him would be secured and confined while he completed his work on the premises. Osowski sought to hold the homeowners liable for their dog’s actions under either OCGA § § 51-3-1 or 51-2-7. The trial court awarded summary judgment to the Smiths. We find that the record shows the existence of material disputed facts as to whether Joseph Smith voluntarily undertook a duty to restrain the dogs and whether that voluntary undertaking was negligently performed Accordingly, we reverse. On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence and construes that evidence in the light most favorable to the nonmoving party to determine whether material issues of fact exist. Gustafson v. Cotton States Mut. Ins. Co. , 230 Ga. App. 310 496 SE2d 346 1998.
So viewed, the evidence shows that the Smiths scheduled an appointment with Osowski to install cable television at their residence. Osowski arrived at the house, and after seeing “some dogs in the area that were roaming around. . . asked Smith if they would bite him or if they were aggressive . . . and Smith assured him that there shouldn’t be any problems with them at all, except for one of them he couldn’t be positive of.” At the time of his inquiry, Osowski noticed only two dogs inside the fenced yard, and Osowski testified that “I was sitting in my truck. I did not get out until I was assured that I would not have any problems with the dogs.” Osowski further testified that “Smith said he would retain sic those dogs if I wanted him to, if I’d feel better he would fence them up for me, and that some of them had —I might have a problem with and some I wouldn’t. At that point, I waited.” Osowski assumed the problem was resolved when Smith told him “that he would take care of it” and Smith left for a while, and when Osowski did not see any more dogs on the premises.
