Wolfe v. Carter

• Decision Date: 16 March 2012
• Docket Number: A11A1745
• Parties: WOLFE v. CARTER.
• Court: Georgia Court of Appeals

WOLFE v. CARTER.

A11A1745

Court Appeals of Georgia

March 16, 2012

SECOND DIVISION

BARNES, P. J., ADAMS and BLACKWELL, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

Adams, Judge.

James Wolfe appeals from the trial court's grant of summary judgment to Steve Carter in Wolfe's personal injury lawsuit arising out of a three-car collision in Toombs County on January 13, 2007. For the reasons set forth below, we affirm.

"At the outset, we note that on appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law." (Punctuation omitted.) Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714 SE2d 606) (2011). Summary judgment is proper if the record evidence "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Punctuation omitted.) Benefield v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011).

So viewed, the evidence shows that on January 13, 2007, Wolfe was traveling in a pickup truck in the northbound lane of Highway 27 near Odum, Georgia, near the highway's intersection with Aspinall Break Road. Wolfe was following a tractor-trailer driven by Hollis Bryant, who Wolfe also named as a defendant in the lawsuit. A second tractor-trailer, driven by Bill Rainey¹ was following Wolfe. According to the accident report, the collision occurred when an unidentified driver made a u-turn across the highway. When Bryant slowed unexpectedly in response, Wolfe struck him from behind, and Rainey, in turn, struck Wolfe, sandwiching his pickup between the two tractor-trailers.

Wolfe, Bryant and Rainey all described the conditions at the time of the collision as smoky and foggy. Wolfe said that the smoke and fog was thick as a wall at the time of the collision, which caused him to reduce his speed from approximately 50 miles per hour to 30 miles per hour. His vision was limited to less than two or three feet in front of the hood of his truck. He was in the smoke for approximately two minutes before the collision occurred. Bryant said that he saw "a lot of fog and smoke" that day. The smoke stretched for approximately one to one and one-half miles and caused him to slow to around 20 to 30 miles per hour and turn on his emergency flashers. Bryant said that it smelled like wood burning. Rainey also saw thick smoke and fog for about two miles, making his visibility "very, very poor." He could not see more than one foot past his hood. It smelled like trees burning. Rainey slowed down to around fifteen miles per hour and turned on his "four-ways" (lights).

On his way to respond to the accident report, Georgia State Trooper Rozier said he encountered fog and smoke about two to three miles from Odum. The smoke was coming from the east side of the roadway, and Rozier could smell it. He described the visibility as "minimum, twenty, twenty-five foot, at the most, you could see ahead of you." He believed that the fog and smoke played a factor in the accident.² Rozier contacted the Forestry Commission, and learned that only one person, Carter, had conducted a controlled burn in the area, but he did not know the location of the burn. Rozier did not know whether the fire on the roadway was caused by Carter's controlled burn and conceded that it could have been caused by any burn in the area.

Carter obtained permission from the Georgia Forestry Commission to conduct prescribed burns on January 10, 11 and 12, 2007 on property near the intersection of Georgia Highway 341 (also known as Highway 27) and Aspinall Break Road in Toombs County.³ Carter conducted three separate controlled burns on consecutive days, burning approximately 120 acres over the three-day period. The fires from the controlled burns on January 10 and 11 had been completely extinguished by January 12. That day, Carter began the prescribed burn between 9:00 a.m. and 10:00 a.m. Carter allowed the fire to burn out over approximately four to five hours and did not use any chemical agents to extinguish it. Carter described the fire as extinguished when he left the property on January 12 at around 2:00 p.m.; no flames were visible and only a small amount of light, white smoke remained. Carter testified that his smoke management plan consisted of not conducting a burn if the wind carried the smoke toward the highway, which was approximately one-half mile away from the burn. Each of the three mornings, Carter lit test fires to check the wind direction before beginning the controlled burns, and each day the wind carried the smoke to the north and northwest of the highway, exactly as Carter predicted. Carter said that he conducted no prescribed burns on either the evening of January 12 or the morning of January 13, and he does not know the source of any smoke on the highway on January 13.

In granting summary judgment, the trial court found no evidence in the record specifically identifying Carter's burns or any other fire as the source for the smoke the morning of the accident. The court noted "[t]here has been no testimony, documents or other proofs offered that would tend to show either that the burn was conducted or concluded improperly, or that smoke present on highway 341 the next day was even from the same general direction as the location of Carter's prescribed burns." Additionally, the trial court concluded that Wolfe had failed to establish any gross negligence as required under OCGA § 12-6-148 to impose liability upon Carter, noting that "[h]ere, there is no such evidence of negligence, gross or otherwise."

1. Wolfe asserts that the trial court erred when it ruled that there is no link between the smoke on the highway and Carter's prescribed burn on January 12. He points to evidence that smoke, mixed with fog, was on the roadway resulting in limited visibility; that the smoke appeared to be coming from the east shoulder of the roadway; that Carter had conducted a controlled burn the day before within one-half mile of the highway; that Trooper Rozier received information regarding only one controlled burn in the area. He asserts that this circumstantial evidence was sufficient to create a jury issue as to whether Carter's controlled burn was the source of the smoke. We disagree.

As plaintiff, Wolfe had the burden of proof to establish each element of his negligence claim, including causation. Freeman v. Eichholz, 308 Ga. App. 18, 20 (1) (705 SE2d 919) (2011); Hardnettv. Silvey, 285 Ga. App. 424, 426 (646 SE2d 514) (2007). Thus,

[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

(Citations and punctuation omitted.) Grinold v. Farist, 284 Ga. App. 120, 121-122 (1) (643 SE2d 253) (2007).

Although the evidence showed that the fire was coming from the east side of the roadway, Wolfe has pointed us to no evidence showing the relation of the property upon which Carter conducted the controlled burn to the highway, and no evidence showing that the smoke was emanating from the property. Though a light, white smoke remained when Carter completed the burn, Carter testified that no flames remained. Wolfe presented no evidence to demonstrate that the controlled burn ever re-ignited into a fire, especially a fire sufficient to create the wall of smoke and fog Wolfe described. Nor was any evidence presented of the likelihood of such an occurrence based upon the prevailing wind and weather...