Handberry v. Manning Forestry Servs., LLC., A19A1321

• Decision Date: 28 October 2019
• Docket Number: A19A1321
• Citation: 836 S.E.2d 545,353 Ga.App. 150
• Parties: HANDBERRY et al. v. MANNING FORESTRY SERVICES, LLC.
• Court: Georgia Court of Appeals

353 Ga.App. 150

836 S.E.2d 545

HANDBERRY et al.

v.MANNING FORESTRY SERVICES, LLC.

A19A1321

Court of Appeals of Georgia.

October 28, 2019

Reconsideration Denied November 14, 2019

The McArthur Law Firm, Katherine L. McArthur, Caleb F. Walker, for appellants. Brennan Harris & Rominger, G. Mason White, Britton G. White, for appellee.

Dillard, Presiding Judge.

When William Handberry, Sr. died after falling into an open well, Marie Handberry—as surviving spouse and executor of his estate—brought this negligence action against several defendants. Marie’s claims are premised on alleged violations of OCGA § 44-1-14, which, in relevant part, requires "any person" to report "an open abandoned well or hole" located on "public or private property" to "the governing authority of the county in which the hazard exists." Marie now appeals from the trial court’s grant of summary judgment to Manning Forestry Services, LLC. Specifically, she argues that the trial court erred when it ruled that (1) OCGA § 44-1-14 may not form the basis of a negligence-per-se claim; and (2) regardless, there is no evidence Manning knew of the well before William’s death. But because the evidence is insufficient as a matter of law to show that Manning had prior, actual knowledge of the well in which William died, Marie cannot establish that Manning violated OCGA § 44-1-14. We therefore affirm the judgment of the trial court.

Viewing the evidence in the light most favorable to Marie (i.e. , the nonmoving party), ¹ the record shows that, on July 25, 2015, William drove a four-wheeler onto property known as the "McCroan Tract."² When one of the vehicle’s wheels entered a well that was hidden from view by vegetation, the four-wheeler overturned, and William fell into the well, suffering fatal injuries.

On March 31, 2017, Marie sued several defendants that previously performed work on the property (including Manning), alleging that they were negligent in failing to report the existence of the well to the property owner.³ Following discovery, Manning moved for summary judgment on grounds that, as relevant to this appeal, (1) a tort action may not lie for violating OCGA § 44-1-14 ; and (2) regardless, Marie presented no evidence that Manning—which planted trees on the property—had actual knowledge of the well before William’s death or otherwise breached a duty it owed to him. In her opposition to Manning’s motion for summary judgment, Marie maintained that a violation of OCGA § 44-1-14 may establish negligence per se and that circumstantial evidence—which we address in detail infra —is sufficient to create a jury question as to Manning’s prior knowledge of the well. The trial court granted Manning’s motion for summary judgment, concluding that (1) OCGA § 44-1-14 neither forms a basis for a claim of negligence per se nor gives rise to a private right of action; and (2) alternatively, Marie’s circumstantial evidence of Manning’s purported knowledge of the well is insufficient as a matter of law. This appeal follows.

This Court reviews de novo a grant or denial of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant.⁴ Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.⁵ A defendant seeking summary judgment may discharge its burden in this regard "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 plaintiff’s case."⁶ And if the movant meets this burden, the nonmovant "cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue."⁷ In that vein, speculation which "raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment."⁸ Moreover, at the summary-judgment stage, we do not "resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution."⁹ But if there is insufficient evidence to create a genuine issue as to any essential element of a plaintiff’s claim, "that claim tumbles like a house of cards,"¹⁰ and all other factual disputes are rendered immaterial.¹¹ With these guiding principles in mind, we turn to Marie’s claims on appeal.

1. Marie contends that the trial court erred in concluding that no genuine issue of material fact exists as to whether Manning had actual knowledge of the existence of the well before William’s death. Specifically, she maintains that an otherwise straight line of trees planted by Manning before William’s death changes course at the well’s location, showing that Manning knew of the well’s existence. We disagree.

To state a cause of action for negligence in Georgia, a plaintiff must show "the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages."¹² Importantly, negligence is not to be presumed, but is "a matter for affirmative proof."¹³ And in the absence of affirmative proof of negligence, we must "presume performance of duty and freedom from negligence."¹⁴

The elements of a negligence claim primarily at issue are a duty and a breach of that duty, which Marie seeks to establish—under a theory of negligence per se¹⁵ —by showing a violation of OCGA § 44-1-14. This statute provides, in relevant part, that "[w]henever it is brought to the attention of any person that an open abandoned well or hole ... exists on public or private property, such person shall immediately inform the governing authority of the county in which the hazard exists."¹⁶ The statute further sets forth a procedure by which the governing authority of the county may then correct the hazard.¹⁷ And by the very terms of the statute, the duty to report does not arise unless a person has actual knowledge—i.e. , "[w]henever it is brought to the attention of any person"—of the existence of an "open abandoned well or hole."¹⁸

Here, the record shows that, in June 2010, Manning began preparation for planting pine trees in the section of the McCroan Tract in which William later died, and planting began the following November. Manning did not do any work on the property after planting was completed in 2010. Manning typically plants pine trees six feet apart in straight rows if the land is flat; the goal is to make each row as long as possible. If the land is hilly, trees are planted along the contours of the land. And obstacles such as a large rock, a stump, a hole in the ground, or a large puddle or swampy area are other common causes of deviations from straight lines. Rows of trees typically are spaced 12 feet apart.

Manning plants trees by using two-person teams: one person drives a bulldozer, which pulls a tree planter in which the other person rides and which carries the seedlings to be planted. Robert Wells—Manning’s crew leader and sole full-time employee at the time—conducted the preparation work and drove a bulldozer used to plant pine trees in the McCroan Tract. Three seasonal workers from Mexico assisted Wells with the planting—one drove a second bulldozer, and the other two rode in the planters.¹⁹ During the planting, one 12-foot row typically separated each bulldozer, so that the teams were operating on rows 24 feet away from each other.

Manning’s owner, Gene Manning, testified in a deposition that—although he delivered seedlings and equipment to the McCroan Tract—he did not do any of the preparation work or planting, inspect the property, or otherwise have an opportunity to observe any holes in the ground. And to his knowledge, no wells were found on the McCroan Tract while Manning planted trees. Gene also testified that if an employee encounters a well while working on property, the employee is expected to inform the landowner and mark the area with stakes. Wells similarly testified that—although he could not recall anything that prevented planting trees in a straight row on the McCroan Tract in 2010—he "flag[ged]" every well he found while working for Manning, and the only reason he would not "flag" a well is if he did not see it. Indeed, Wells did not recall seeing a well on the McCroan Tract, and he testified that he would know if one had been found during Manning’s work on the property. Wells also noted that—during the time he worked on the McCroan Tract—the ground was "real wet," "boggy," "rough," and "stumpy," and the bulldozer "got stuck a lot" due to the wet ground.

Previously, in 2008, Hawkins Logging harvested timber in the McCroan Tract on behalf of Georgia-Pacific. And a Georgia-Pacific representative testified in a 2017 deposition that its personnel involved in the 2008 harvest were not aware of any wells on the property. As is the case with Manning, if Georgia-Pacific personnel encounter a well while working on property, they are expected to inform the landowner and "flag[ ]" the area.

Manning relies on the foregoing evidence to show that it did not know of the well’s existence on the McCroan Tract before William’s death. Nevertheless, Marie sought to call this proposition into question by presenting the affidavit of her forestry expert, Alex Nixon. Nixon inspected the area around the well several times beginning in August 2015, by which time the well had been "covered by a mound of dirt several feet high." According to Nixon, the pine trees in that area generally were planted in straight rows parallel to a road. But immediately before the well’s location, one of the rows changed direction, as a result of which three trees were on a 45-degree angle from the rest of the row. Nixon attested that "[t]he row then picks up on the opposite side of the well."

Based on these observations, Nixon opined that "as the bulldozer and tree planter...