Faulkner v. Crumbley

• Decision Date: 02 November 2020
• Docket Number: A20A1576
• Citation: 851 S.E.2d 164,357 Ga.App. 594
• Parties: FAULKNER et al. v. CRUMBLEY et al.
• Court: Georgia Court of Appeals

357 Ga.App. 594

851 S.E.2d 164

FAULKNER et al.

v.CRUMBLEY et al.

A20A1576

Court of Appeals of Georgia.

November 2, 2020

Smith Welch Webb & White, Marc A. Avidano, Brandon F. Palmer, for Appellants.

Falanga & Chalker, R. Alexander Falanga, for Appellees.

Coomer, Judge.

Billy M. Faulkner, Merry H. Faulkner, and Billie Jo Faulkner (collectively the "Faulkners") appeal the trial court's order denying their motion for summary judgment. The Faulkners argue they were entitled to a grant of summary judgment because appellees Sonia Crumbley and her minor son M. C. (collectively, the "Crumbleys") failed to present evidence of their negligence. The Faulkners further contend the trial court erred in denying their motion for summary judgment as to the Crumbleys’ theory of liability under Section 6-34 of the Jasper County Code of Ordinances (the ‘‘Ordinances’’) because the ordinance is preempted by OCGA § 4-3-1, et seq. Because the evidence failed to establish negligence on the part of the Faulkners and because we agree that state law preempts the county ordinance at issue in this case, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). This Court reviews a ruling on a motion for summary judgment de novo, and views the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Morris v. Pope , 344 Ga. App. 25, 25 (1), 806 S.E.2d 657 (2017). A defendant may demonstrate that there is no genuine issue of material fact "by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case." Mitchell v. Austin , 261 Ga. App. 585, 585, 583 S.E.2d 249 (2003) (citation and punctuation omitted). "If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue." John Hewell Trucking Co. v. Brock , 239 Ga. App. 862, 862-863, 522 S.E.2d 270 (1999) (citation and punctuation omitted). Guesses or speculation which "raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment." Brown v. Amerson , 220 Ga. App. 318, 320, 469 S.E.2d 723 (1996)

So viewed the record shows that on May 8, 2016, Sonia Crumbley was driving her car at night with her minor son, M. C., who was riding in the back passenger seat. The Crumbleys were driving south on State Highway 11 in Jasper County when the vehicle struck a cow owned by the Faulkners standing in the roadway thereby causing the Crumbleys to sustain injuries. The Crumbleys filed suit against the Faulkners, alleging negligence pursuant to OCGA § 4-3-1, et seq., and Section 6-34 of the Jasper County Code of Ordinances.

The Faulkners moved for summary judgment, arguing that they exercised ordinary care in the maintenance of their fences and livestock and the ordinance is not applicable because it is preempted by state law.

In support of their motion, the Faulkners presented Billie Jo Faulkner's affidavit, in which she stated that she worked on the family farm, and that as part of her duties and responsibilities, she checked the fences every day, including on the day of the accident. Billie Jo averred that the five-foot high board fence with a five-strand barbed wire fence along the roadway was, in her opinion, sufficient to confine the cattle. Billie Jo further stated that after learning of the accident, she again inspected the fences and confirmed that they were in good repair, the gates were closed, and she could not find any indication as to how the cow had escaped. She also averred that prior to May 8, 2016, the cow involved in the incident had never escaped the confines of the farm and that there was nothing that could have been done to prevent the cow's escape.

In response to the Faulkners’ motion, the Crumbleys asserted that the fence was not sufficient to confine the cattle because, as Sonia stated in her deposition, there were three cows in the roadway at the time of the accident. Following a hearing on the motion, the trial court summarily denied the Faulkners’ motion, but certified its order for immediate review. This Court granted the Faulkners’ application for interlocutory review, and this appeal followed.

1. The Faulkners argue that the trial court erred in denying their motion because the evidence established that they exercised reasonable care in maintaining their fence and their cows. Specifically, the Faulkners contend the Crumbleys failed to present any admissible evidence to challenge their showing of ordinary care besides mere speculation. We agree.

OCGA § 4-3-3 states that "[n]o owner shall permit livestock to run at large on or to stray upon the public roads of this state or any property not belonging to the owner of the livestock, except by permission of the owner of such property." While the "mere fact that livestock is running at large permits an inference that the owner is negligent in permitting the livestock to stray[, that permissible inference disappears] when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock[.]" John Hewell Trucking Co. , 239 Ga. App. at 863, 522 S.E.2d 270 (citations and punctuation omitted). Nevertheless,

[f]or the evidence to require a verdict for the defendant it must demand a finding that he was not negligent in any respect. A jury question reappears in the case where, although evidence of facts showing ordinary care on his part have been introduced, other facts would support a contrary inference.

Id. at 863-64, 522 S.E.2d 270 (citations and punctuation omitted). Here, the Faulkners presented evidence by way of affidavit that the fences were sufficient to confine the cattle, that the cow struck by the Crumbleys’ vehicle had never escaped the farm prior to the accident, and that following the accident, the fences were in good repair and no gates were open. In response, the Crumbleys presented no credible evidence to the contradict the Faulkners’ claims regarding the condition of the fences, prior incidents of escape by cattle, or whether the gates were closed. Rather, the Crumbleys presented testimony evidence that three cows were on the road the night of the accident, which they contend is sufficient, without more, to create a jury question that the Faulkners were negligent in maintaining their fences.

While it is true that the Crumbleys could create a jury question regarding the Faulkners’ negligence in maintaining their fence by introducing evidence of past incidents of straying, it is also true that the past incidents must have a "nexus in terms of time and location to the defendant's maintenance of the fencing at issue[.]" Morris , 344 Ga. App. at 27 (2) (a) (i), 806 S.E.2d 657 (citation and punctuation omitted). "Such prior, similar incidents could create a question of fact regarding the defendant's exercise of ordinary care because they could show that the defendant was on notice that his maintenance of the fence was insufficient." Id. See also Johns v. Marlow , 252 Ga. App. 79, 80-81, 555 S.E.2d 756 (2001) (defendant's knowledge that his horses previously had opened a gate and had broken a fence's electric wire created a jury question as to whether defendant exercised ordinary care in securing his horses).

Here, the fact that there may have been three stray cows that night does not show that the Faulkners were on notice that their maintenance of the fence was insufficient. Consequently, the Crumbleys failed to present evidence of the Faulkners’ negligence in maintaining their fences other than the mere fact that cows strayed on the road. See West v. West , 299 Ga. App. 643, 645, 683 S.E.2d 153 (2009) (summary judgment proper where the defendants introduced evidence that the fencing surrounding the pasture was in good repair and the gates were closed at the time of the accident and the plaintiff failed to present any evidence to challenge these claims); Thomas v. Morrison , 256 Ga. App. 127, 128, 567 S.E.2d 692 (2002) (summary judgment proper where the defendant presented evidence that the fence was in good repair and that the gates to the pasture were all closed and latched and the plaintiff failed to come forward with any evidence to the contrary); John Hewell Trucking Co. , 239 Ga. App. at 863, 522 S.E.2d 270 (summary judgment proper where the defendant presented evidence that there were no holes or breaches in the fences upon inspection immediately after the accident, and that, while other cattle belonging to the same owner had strayed beyond their pastures, no nexus was established in terms of time and location to the defendant's maintenance of the fencing here in issue). Compare Green v. Heard Milling Co. , 119 Ga. App. 116 (1), 166 S.E.2d 408 (1969) (conflicting testimony of a hole in pasture fence, coupled with testimony that a back gate was open, was sufficient evidence contradicting that defendant's testimony of his own care in maintaining pasture fence, such that denial of a directed verdict was not error); Carver v. Kinnett , 209 Ga. App. 577, 579-580 (1), 434 S.E.2d 136 (1993) (no summary judgment where there was evidence of the defendants’ negligence in maintaining their fences).

Accordingly, the evidence that there were three stray cows on the roadway rather than just one, without more, does not create a genuine issue of fact that the Faulkners, by failing to maintain adequate fences, breached their duty to keep their...