Evancho v. Baker
| Citation | 397 S.E.2d 166,196 Ga.App. 903 |
| Decision Date | 06 September 1990 |
| Docket Number | No. A90A0894,A90A0894 |
| Parties | EVANCHO v. BAKER. |
| Court | United States Court of Appeals (Georgia) |
Towery, Thompson, Gulliver & Bunch, Phillip M. Thompson, Harold S. Gulliver, Atlanta, for appellant.
Miles L. Gammage, Michael D. McRae, Cedartown, Brinson Askew & Berry, H.L. Cromartie III, Rome, for appellee.
Appellant was injured when the vehicle she was driving collided with a cow in the roadway adjacent to property owned by appellee Baker. At the time of the collision, appellee was allowing co-defendant Mitchell to keep his cattle on her property, provided Mitchell maintained the fence around the property. Appellee agreed to provide the materials for necessary repairs to the fence. The record reveals that appellee was interested in the work that Mitchell performed on the fence, however appellee herself did not inspect the fence, as Mitchell had agreed to do so. Mitchell and appellee are cousins and Mitchell did not pay appellee for the use of her property. Appellant brought this action against both parties for damages resulting from the accident. Appellee's motion for summary judgement was granted by the trial court and this appeal followed. Mitchell was not included in the summary judgment motion, and he is not a party to this appeal.
1. Appellant first enumerates as error the trial court's ruling that appellee owned the land, but did not control the cattle under OCGA § 4-3-1 et seq. Section 4-3-3 of the Georgia Code prohibits an "owner" from permitting livestock to run at large or to stray onto public roads. OCGA § 4-3-2 defines "owner" as "any person ... owning, having custody of, or in charge of livestock." The evidence in the record before us reveals that appellee, pursuant to her agreement with Mitchell, was not at all involved in keeping the livestock. She simply allowed Mitchell the use of her land as long as he tended to all aspects of his cattle and maintained the fence. Neither appellee's interest in the property, her provision of supplies to repair the fence, the fact that appellee's son assisted Mitchell in repairing the fence nor the familial connection between appellee and Mitchell changed the fundamental relationship among appellee, Mitchell and the cattle. Under the circumstances, appellee did not come within the definition of an "owner" as set forth in the Code and therefore cannot be liable under the Georgia livestock law. The cases cited by appellant do not apply to the unique situation involving cattle, and are therefore inapposite. The first enumeration is without merit.
2. Appellant next asserts that the trial court erred in not ruling on appellant's contention that appellee, the noncustodial landowner, is liable under common law...
To continue reading
Request your trial
-
Florida Power & Light Co. v. Morris, 4D04-4884.
...adequate method of confinement is upon the keeper, not upon the landowner who neither owned nor kept the animal."); Evancho v. Baker, 196 Ga. App. 903, 397 S.E.2d 166 (1990) (citing Rotolante, 460 So.2d at 560) (holding that a common law negligence theory against the landowner has no merit)......
- Metropolitan Atlanta Rapid Transit Authority v. Boswell, S91G0043
-
Hortman v. Guy, A99A2247.
...keeper, not upon the landowner who neither owned nor kept the animal.'" Id. at 683(3), 503 S.E.2d 581, quoting Evancho v. Baker, 196 Ga.App. 903, 904(2), 397 S.E.2d 166 (1990). Accordingly, the trial court did not err by granting summary judgment to Linda Guy on the Hortmans' claims for dam......
-
Supchak v. Pruitt
...the keeper, not upon the landowner who neither owned nor kept the animal." (Citations and punctuation omitted.) Evancho v. Baker, 196 Ga.App. 903, 904(2), 397 S.E.2d 166. There is no evidence in the record showing that Ruth Pruitt had custody of the horse, that she kept the horse for her so......