Georgia Forestry Com'n v. Canady

• Decision Date: 06 July 2005
• Docket Number: No. A05A0482.,A05A0482.
• Citation: 274 Ga. App. 556,617 S.E.2d 569
• Parties: GEORGIA FORESTRY COMMISSION v. CANADY.
• Court: Georgia Court of Appeals

274 Ga. App. 556

617 S.E.2d 569

GEORGIA FORESTRY COMMISSION v. CANADY.

No. A05A0482.

Court of Appeals of Georgia.

July 6, 2005.

Reconsideration Denied July 26, 2005.

Thurbert Baker, Attorney General; Hicks, Casey, Barber, P.C., Mark W. Wortham, Marietta; Freeman, Mathis & Gary, Matthew P. Stone, Sun S. Choy, Atlanta; Harris & Bunch, Frank P. Harris, Marietta; Crim & Bassler, Joseph M. Murphey, Atlanta, for appellant.

Jones, Osteen, Jones & Arnold, Billy N. Jones, G. Brinson Williams, Jr., Hinesville, for appellee.

ELLINGTON, Judge.

Tray Canady, who was injured in a wreck on a smoke-covered highway outside Ludowici, brought suit in the Superior Court of Long County against the Georgia Forestry Commission ("the Commission"), the Georgia Department of Transportation, the Georgia State Patrol, and a forest management company employed by the owner of the property where the smoke originated. After a hearing, the trial court granted the motion for summary judgment filed by the State Patrol but denied the motions for summary judgment filed by the Commission and the Department of Transportation. Following the grant of its application for interlocutory review, the Commission appeals, contending the trial court misconstrued applicable law regarding sovereign immunity and the Commission's duties to the public. For the reasons which follow, we affirm in part and reverse in part.

In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) English v. Fulton County Bldg. Auth., 266 Ga.App. 583, 597 S.E.2d 626 (2004).

Viewed in the light most favorable to Canady, the record shows the following facts. In December 2000, Sabine & Waters of Georgia, Inc. ("Sabine"), a forestry management company, managed a tract of approximately 190-200 acres of timber land near U.S. Highway 301 in Long County for the owner, Harry Chapman. On the morning of December 5, 2000, Sabine employee Donald Pickard requested permission from the Commission to do a controlled burn of a 30- to 50-acre section of Chapman's property. Earlier, timber had been harvested from the Chapman property, and Sabine was engaged in the process of preparing the site for replanting through a series of controlled burns.

After consulting Commission guidelines and detailed weather forecasts for December 5, Robert Long, a Chief Ranger for the Commission, authorized the burn with the stipulation that Sabine begin the burn early and end the burn early so that the smoke could dissipate before evening. The permit, which was issued verbally and documented in a burning authorization log, expired at 6:00 p.m. According to Long, he told Pickard that no smoke should be rising from the site at that time.

In accordance with the instruction to end the controlled burn early, Pickard and another Sabine employee, Shane Harrelson, finished actively setting fire at about 3:00 p.m. As they checked the fire breaks circling the burned area, Pickard and Harrelson discovered that the fire had jumped the fire break and had begun burning the adjacent section, which lay between Highway 301 and the section for which Sabine had a permit to burn on December 5. Harrelson contacted the Commission to report the fire's escape into another section and to ask for instructions. Ranger Kevin Anderson took the call. The Commission had the authority and ability to take steps to extinguish the fire. After considering the circumstances, Anderson said the Sabine employees could go ahead and burn the other area, though to what extent is disputed. Burning the additional area entailed actively setting new fire and not simply refraining from suppressing the fire. Sabine employees considered the additional burning in the second area to be an extension of the permit they obtained that morning.

At 3:35 p.m., Anderson called the State Patrol and reported that the Commission had allowed a controlled burn that day and that there might be a problem with smoke in the area. At about the same time, a highway maintenance foreman for the Department of Transportation observed smoke blowing across Highway 301 and placed signs on the highway that warned "Caution Smoke and Fog Ahead." At about 4:00 p.m., Long saw heavy smoke coming from the area of the controlled burn and went to investigate. Long found that the fire had jumped the perimeter firebreak and ignited undergrowth in the wooded buffer area between the clear cut tract and the roadway. Long summoned Commission employees and directed them in extinguishing the fire. Ludowici firefighters also responded to Long's call and assisted in putting out the fire. Ultimately, approximately four times the intended area had burned, all the way to the edge of the highway. At about 5:30 p.m., Long returned to his office and called the State Patrol. Long advised the dispatcher that there had been a fire and there might be a possible hazard on the road that night. Long asked the State Patrol to have troopers check it during the night. The dispatcher responded that she would make a note of it. Long did not ask that warning signs be put up. At that point, Long went home; the Commission took no further steps to monitor visibility on the highway or the response of the State Patrol or the Department of Transportation.

Although there were no open flames after Commission employees and local firefighters left the scene, several very large piles of timber harvesting debris in the second section continued to smolder and generate smoke. Long knew that such piles of timber debris, known as "smokers," would likely continue to generate smoke for several hours. From weather forecasts used in deciding whether to issue burning permits, Long also knew that conditions for smoke dispersal that evening were expected to be "very poor."

Shortly after midnight, the car in which Canady was a passenger struck the rear of a large commercial truck traveling in the dense smoke on Highway 301. A second large truck then struck Canady's vehicle from behind. Another accident occurred involving other vehicles. A State Patrol officer who responded to the accidents described the smoke as "so thick you can't see your hand" and "so thick you need a gas mask." At that point, the State Patrol closed the highway to traffic.

In his action for damages, Canady alleged that, given weather conditions and other circumstances prevailing on December 5, 2000, the Commission was negligent in issuing a permit for the burning of timber land adjacent to Highway 301. Canady also alleged that the Commission was negligent in failing to notify other governmental entities and agencies that it was probable that smoke from the burning on the Chapman property would obscure visibility on the highway. In moving for summary judgment, the Commission argued that the undisputed facts establish that it did not issue a permit for the burning of the second section and that it notified the State Patrol of the smoke hazard in accordance with an inter-agency policy designed to address such visibility problems. The Commission argued that it is immune from Canady's suit because the State has provided exceptions to the general waiver of sovereign immunity for losses resulting from its permitting powers and functions,¹ and from its failure to provide, or the method of providing, fire protection.² The trial court denied the Commission's motion for summary judgment on three grounds. First, the trial court concluded that the undisputed evidence established that the Commission did not exercise its permitting function with regard to the burn at issue, whether by issuing a new permit or by modifying an existing permit. Accordingly, the trial court concluded, the permitting exception to the waiver of sovereign immunity did not apply. Second, the trial court found that the "smokers" caused the dangerous condition on the highway only after the Commission had completed its fire control activities. As a result, the trial court concluded the fire protection exception to the waiver of sovereign immunity did not apply. Finally, the trial court concluded that questions of fact remained regarding whether the Commission negligently failed to apprise the State Patrol and the Department of Transportation of the high risk of a visibility hazard during the evening.

1. As a preliminary matter, we note that several provisions of Title 12, Conservation and Natural Resources, help define the function and authority of the Commission. First, the General Assembly created the Commission to "foster, improve, and encourage reforestation" and promote "better forestry practices." OCGA § 12-6-5(a)(1), (2). See also OCGA § 12-6-5.1 (legislative findings regarding the needs for improved reforestation). With regard to fire fighting, the General Assembly authorized the Commission "[t]o conduct and direct fire prevention work," that is, preventing, detecting, and combating fires. OCGA § 12-6-5(a)(5). The Commission is authorized to control and extinguish uncontrolled fires on any forested or cut-over brush land or grassland. OCGA § 12-6-21. The Commission's director is authorized to prohibit controlled burning or to permit it "only upon such conditions and under such regulations as in his judgment are necessary and proper to prevent the destruction of property." OCGA § 12-6-17(a).

In the Georgia Forest Fire Protection Act, OCGA § 12-6-81 et seq., the General Assembly reiterated the need to protect against uncontrolled fire and to preserve forest lands and forest resources and gave the Commission authority to direct and supervise "all forest fire protection work." OCGA §§ 12-6-81; 12-6-83. The legislature found that "prescribed burning is an...