Hortman v. Guy, A99A2247.

• Decision Date: 01 February 2000
• Docket Number: No. A99A2247.,A99A2247.
• Citation: 242 Ga. App. 174,529 S.E.2d 182
• Parties: HORTMAN et al. v. GUY.
• Court: Georgia Court of Appeals

529 S.E.2d 182

242 Ga. App. 174

HORTMAN et al. v. GUY.

No. A99A2247.

Court of Appeals of Georgia.

February 1, 2000.

Cramer & Peavy, Timothy C. Cramer, James E. Peavy, Griffin, for appellants.

Temple, Strickland & Dinges, William D. Strickland, Decatur, Smith, Welch & Brittain, Thomas B. McFarland, McDonough, for appellee.

BARNES, Judge.

Glen, Sandra, and Judy Hortman sued Linda and Morgan Guy for personal injuries and property damage. The Hortmans alleged they were in a car that hit the Guys' cow in the road. The trial court granted Linda Guy's motion for summary judgment, and the Hortmans appeal. The Hortmans argue that a state statute defining livestock ownership does not preempt a county animal control ordinance that defines "owner" more broadly to include people who keep or harbor the animals. We disagree and affirm.

Linda Guy averred in her affidavit that she owned no cows on the date of the collision, although she allowed her ex-husband to keep and care for cows on her property. Morgan Guy confirmed in his affidavit that his ex-wife owned no cows and that he did own some cows he kept on her property. The Hortmans produced no evidence that Linda Guy owned the cow in the road.

1. Under OCGA § 9-11-56(c), the trial court should grant summary judgment when no issue of material fact remains to be decided and the movant is entitled to judgment as a matter of law. We review de novo a grant of summary judgment, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga.App. 592, 472 S.E.2d 140 (1996).

2. Chapter 3 of Title 4 is titled "Livestock Running at Large or Straying," and its first section, "Legislative Intent," provides: "There is found and declared a necessity for a uniform state-wide livestock law embracing all public roads in the state and all other property." OCGA § 4-3-1.

The 1953 and 1955 Acts abolishing the open range and requiring that uniformly over the State the owners of livestock must fence them or take the necessary steps to prevent them from straying to the roads and the lands of others, provided: "No owner shall permit livestock to run at large on or stray upon the public roads of this State, or any property not belonging to the owner of the livestock unless by permission of the owner of such property." [OCGA § 4-3-3.]

Tennessee, Ala. &c. R. Co. v. Andrews, 117 Ga.App. 164, 168, 159 S.E.2d 460 (1968).

We have held that a landowner who allows livestock on his land is not necessarily the "owner" as defined in OCGA § 4-3-2(2) ("`Owner' means any person, association, firm, or corporation, natural or artificial, owning, having custody of, or in charge of livestock."). Evidence that a landowner merely allows someone else to put livestock on her land is insufficient "to create an issue of fact over whether [Linda Guy] owned, had custody of, or was in charge of the [cow] involved in the collision." Supchak v. Pruitt, 232 Ga.App. 680, 682(3), 503 S.E.2d 581 (1998).

"`If the landowner is neither the owner nor keeper, he has no duty to confine or restrain the animal. If an animal is allowed by its keeper to escape from its confinement and harm results, that damage results from the negligent confinement, not from the condition of the land. To the extent that the condition of the land made it inadequate or unsuitable for confinement, the responsibility for selecting an adequate method of confinement is upon the 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 damages arising from their collision with the cow.

3. The Hortmans contend that county ordinances in both Henry County, where Linda Guy's property is located, and Newton County, where the collision took place, define "owner" more broadly than the state statute to include a person harboring an animal or allowing an animal to remain on her premises. The Hortmans further contend that the state statute does not preempt the county ordinance, because "it is considered permissible to augment and strengthen the general law by special law."

The Supreme Court of Georgia in Grovenstein v. Effingham County, 262 Ga. 45, 414 S.E.2d 207 (1992) and later in Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 275(2), 507 S.E.2d 460 (1998), discussed the uniformity clause in the 1983 Georgia Constitution, which provides:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

Ga. Const. of 1983, Art. III, Sec. VI, Par. IV(a).

In Grovenstein, the court noted that the state statute at issue expressly authorized counties "to exercise by local ordinance the police power of revoking licenses for the sale of beer and wine, so long as the ordinance meets the requirement of Art. III,...