Lavan v. Cannon Farms, Inc.
| Decision Date | 25 May 2022 |
| Docket Number | A22A0572 |
| Citation | 364 Ga.App. 53,873 S.E.2d 727 |
| Parties | LAVAN v. CANNON FARMS, INC. |
| Court | Georgia Court of Appeals |
Dewey N. Hayes Jr, Douglas, Ashleigh Ruth Madison, Savannah, for Appellant.
John Crawford Spurlin, Tifton, for Appellee.
Melinda Lavan filed a negligence claim against Cannon Farms, Inc., alleging that she was injured and her truck was damaged when she collided with cows that had roamed onto the roadway through an open gate to a fenced area. Cannon Farms moved for summary judgment, arguing that it had not been negligent and that its cows had gotten out of the fenced area because a pine tree had unexpectedly fallen on the fence. The trial court granted the motion for summary judgment.
Lavan appeals from that ruling. Because the evidence shows that there are genuine issues of material fact, the trial court erred in granting the motion for summary judgment. So we reverse the trial court's ruling.
1. Summary judgment on negligence claim.
Lavan contends that the trial court erred in granting summary judgment to Cannon Farms on her negligence claim. We agree.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.
Parham v. Stewart , 308 Ga. 170, 176 (4), 839 S.E.2d 605 (2020) (citation and punctuation omitted).
So viewed, the evidence shows that Cannon Farms maintained approximately 250 cows in fenced fields on its 1,500 acres of farm land. On the night of February 7, 2019, three cows got out of a fenced field and strayed onto an adjacent two-lane road that has no lighting. At approximately 8:15 that night, Lavan was driving her truck on the road when she encountered a van stopped in the roadway. Lavan stopped briefly behind the van and then began to drive around it. As she passed the van, she hit one of the cows and veered into a ditch. Another cow charged toward Lavan's vehicle, forcing her to pull back on to the road and again hit the cow that she had previously hit.
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. Nevertheless, for 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.
Faulkner v. Crumbley , 357 Ga. App. 594, 596 (1), 851 S.E.2d 164 (2020) (citations and punctuation omitted).
In moving for summary judgment, Cannon Farms relied on the affidavit of its majority shareholder, James Cannon, in which he testified that the area where the cows were kept was enclosed by barbed wire fencing that is standard for keeping cattle; that the fencing has secure metal gates; that the fences were inspected and the cows were fed on a regular basis; that on the morning of the incident he had fed the cows and there was no damaged fencing or open gates; that he received a phone call after the incident and went to the scene where he observed that the gates at the road were closed; and that the following day he found a small area of damaged fencing not located by the highway but located on the other side of a field next to woods where a pine tree had fallen on the fence.
In response, Lavan presented her affidavit in which she testified that she frequently passes the Cannon Farms property; that on at least three or four occasions prior to the accident she has witnessed cows outside their enclosure and wandering on the roadway; that she has seen the gate to the enclosure open on numerous occasions before and after the accident; and that cows straying outside the enclosure is an ongoing issue with Cannon Farms. Lavan also testified at her deposition that photographs taken after the accident showed an open gate...
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