Wardlaw v. Ivey, A09A0574.

• Court: United States Court of Appeals (Georgia)
• Citation: 676 S.E.2d 858,297 Ga. App. 240
• Docket Number: No. A09A0575.,No. A09A0574.,No. A09A0576.,A09A0574.,A09A0575.,A09A0576.
• Parties: WARDLAW et al. v. IVEY et al. Ivey Management Corporation et al. v. Wardlaw et al. Ivey v. Wardlaw et al.
• Decision Date: 31 March 2009

676 S.E.2d 858 297 Ga. App. 240 WARDLAW et al.
v.
IVEY et al.
Ivey Management Corporation et al.
v.
Wardlaw et al.
Ivey
v.
Wardlaw et al. No. A09A0574. No. A09A0575. No. A09A0576. Court of Appeals of Georgia. March 31, 2009.

[676 S.E.2d 860]

Parker & Lundy, Charles E. Morris Jr., Cedartown, for Andrew Wardlaw.

Hawkins & Parnell, Peter Rhyne York, Atlanta, Leslie Kristin Brock, for Greg Ivey.

Claxton & Claxton, William P. Claxton, Atlanta, Darcy S. DuVal, for Ivey Management Corp.

JOHNSON, Presiding Judge.

Andrew Wardlaw and his landscaping company, ACW Lawn & Landscape Management, Inc., (collectively "Wardlaw") sued Greg Ivey, Ivey Management Corporation, and Wayne Baxter (collectively "the defendants") for personal injuries and property damage after a tree cut by Baxter fell on Wardlaw's truck. The defendants moved for summary judgment, which the trial court granted in part and denied in part.

In Case No. A09A0574, Wardlaw appeals the partial grant of summary judgment to the defendants. The defendants cross-appeal in Case Nos. A09A0575 and A09A0576, challenging the partial denial of their summary judgment motion. For reasons that follow, we affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law.¹ We review the grant or denial of summary judgment de novo, construing all evidence and reasonable inferences in favor of the nonmoving party.²

So viewed, the record shows that Ivey owns Ivey Management Corporation, a building and land management company. In November 2005, Ivey asked Baxter, a company employee, to cut down a dead tree in front of his residence on Cold Harbor Drive in Roswell. Baxter had eight years of experience

676 S.E.2d 861

in tree removal and managed various developments and office parks for the company.

Ivey checked the weather forecast on the day of the tree removal and believed the weather would be calm. Baxter also testified that winds were calm as he began the project. Based on the weather conditions, the lean of the tree, its size, and shape, Baxter determined how to cut the tree. Although the tree was located just 20 feet from Cold Harbor Drive, Baxter believed that he could cut it safely without endangering anyone on the road.

Using a large chainsaw and an anchor rope, Baxter and two assistants began to cut the tree, intending to make it fall away from Cold Harbor Drive into Ivey's yard. Baxter had made several cuts in the tree when he noticed gusty winds in the area. As he continued cutting, the tree twisted with the wind and fell toward the road.

At that time, Wardlaw was driving his company-owned pickup truck down Cold Harbor Drive. As he passed the Ivey residence, the tree fell on his truck, crushing part of the cab and totaling the vehicle. Wardlaw managed to avoid serious injury, but he sustained muscle soreness and minor scratches.

Wardlaw sued the defendants for, among other things, personal injuries, emotional distress, and destruction of the truck. He also sought punitive damages based on their recklessness in "attempting to cut and remove the subject tree in a manner that so clearly endangered unsuspecting members of the community and innocent motorists." The defendants moved for summary judgment on Wardlaw's claims for punitive damages, emotional distress, and property damage.³ The trial court granted the motion with respect to the punitive damage and emotional distress claims, but denied it as to Wardlaw's claim for the damaged truck.⁴

Case No. A09A0574

In this appeal, Wardlaw challenges the trial court's summary judgment ruling on his punitive damage and emotional distress claims. We find no error.

1. "Punitive damages may only be awarded in tort actions where it is proven by clear and convincing evidence that the defendant's actions showed wilful misconduct, wantonness, oppression, or that entire want of care raising the presumption of conscious indifference to consequences."⁵ Neither negligence nor gross negligence alone can support a punitive damages claim.⁶ As we have explained, "something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage."⁷

Asserting that issues of material fact remain as to punitive damages, Wardlaw points to evidence that Baxter did not use proper methods or techniques in removing the tree, particularly given the windy conditions that day. He argues that Baxter's improper techniques revealed wantonness or a conscious disregard for the safety of others.

We disagree. Under Georgia law, "wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent."⁸ Conscious indifference to consequences involves "an intentional disregard

676 S.E.2d 862

of the rights of another, knowingly or wilfully disregarding such rights."⁹

Nothing in the record demonstrates the required recklessness or indifference here. On the contrary, Baxter considered various factors as he prepared to take down the tree, including the weather and the tree's size, location, and shape. Based on his eight years of experience removing trees, he believed that the could cut the tree so that it would fall away from the road. He also used an anchor rope to control its descent. Given these circumstances, no rational trier of fact could find by clear and convincing evidence that Baxter was indifferent to the consequences or disregarded the rights of others.

Wardlaw further argues that the defendants "flaunted" a local ordinance by failing to obtain a city permit before removing the tree and violated traffic laws by blocking Cold Harbor Drive with the fallen tree. In his view, these violations create an issue of fact as to whether the defendants acted wantonly or with conscious indifference.

The tree ordinance Wardlaw cites, however, is specifically intended "to promote the preservation of trees." Wardlaw has not shown — or argued — that it has any relevance to safety or proper tree removal. And he has pointed to no evidence that the alleged ordinance violation proximately caused or had any connection to his damages. We fail to see how this violation — or the fact that the tree blocked the road after it hit Wardlaw's truck — demonstrates wanton or consciously indifferent conduct.¹⁰

Wardlaw's evidence undoubtedly raises questions of fact as to negligence. But he did not present the type of proof necessary to create a jury issue on punitive damages.¹¹ The trial court, therefore, properly granted the defendants summary judgment on this claim.

2. Wardlaw also challenges the trial court's emotional distress ruling, advancing two theories on appeal. First, he asserts that the physical injuries he suffered...