Yancey v. Watkins

• Decision Date: 24 March 2011
• Docket Number: Nos. A10A1635,A10A1636.,s. A10A1635
• Citation: 708 S.E.2d 539,308 Ga.App. 695
• Parties: YANCEYv.WATKINS et al.Usseryv.Watkins et al.
• Court: Georgia Court of Appeals

308 Ga.App. 695
708 S.E.2d 539
11 FCDR 648

YANCEY
v.
WATKINS et al.Ussery
v.
Watkins et al.

Nos. A10A1635

A10A1636.

Court of Appeals of Georgia.

March 9, 2011.Reconsideration Denied March 24, 2011.

[708 S.E.2d 541]

Reinhardt, Whitley, Summerlin & Pittman, John R. Reinhardt, Tifton, John T. Croley, Fitzgerald, for appellants.Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Susan W. Cox, Benjamin J. Colson, Statesboro, for appellees.DOYLE, Judge.

[308 Ga.App. 695] Leland Timothy Watkins, Michael Edwin Watkins, and Leland Brian Watkins (collectively, “Watkins Farm”) sued Stacey Bloodsworth, Tony Yancey, and Milton Ussery for crop damage allegedly caused by the drifting of chemicals aerially applied by Bloodsworth to Ussery's neighboring cotton crop. The trial court denied the defendants' motions for summary judgment and certified the ruling for immediate review. This Court granted applications for interlocutory review filed by Yancey (Case No. A10A1635) and Ussery (Case No. A10A1636). We have consolidated the cases for review, and for the reasons that follow, we reverse in Case No. A10A1635 and affirm in Case No. A10A1636.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. ¹

So viewed, the material portions of the record show that Yancey farmed a cotton crop and helped Ussery, his brother-in-law, farm Ussery's separate cotton crop. Yancey used a combination of his own equipment and Ussery's equipment to prepare and plant Ussery's cotton crop. Yancey had no ownership interest in Ussery's property or crop, nor did he participate in the yield. At the end of the year, Ussery paid him what the men estimated Yancey's work was worth.

Adjacent to Ussery's cotton field was Watkins Farm's crop of pepper plants. In the fall of 2006, after conferring with a cotton “scout,” Ussery determined that the timing was appropriate to apply certain chemicals, including a defoliant, to the cotton crop. He arranged for Bloodsworth to apply the chemicals to his crop from a crop-dusting airplane. Yancey, as part of his regular employment with a farm supply warehouse, delivered the chemicals from the warehouse to the airport where Bloodsworth operated. Bloodsworth then aerially applied the defoliant to the cotton crop, and during the process, some defoliant allegedly drifted onto Watkins Farm's adjacent pepper crop and damaged it.

After discovering the damaged pepper crop, Watkins Farm sued [308 Ga.App. 696] Bloodsworth, Yancey, and Ussery, alleging claims for negligence and trespass. Yancey and Ussery moved for summary judgment, which motions were denied, giving rise to these interlocutory appeals.

Case No. A10A1635

Yancey's summary judgment motion relied on a theory that he was a mere employee of Ussery, and there is no evidence that the pepper crop damage arose from any breach of a duty he owed to Watkins Farm.

[708 S.E.2d 542]

The evidence shows that other than delivering the chemicals to the airport on behalf of the farm supply warehouse (his regular employer), Yancey himself was not involved in Bloodsworth's application of the chemicals. In response to Yancey's summary judgment motion, as on appeal, Watkins Farm contended that Yancey was engaged in a joint venture with Ussery, and therefore any negligence on the part of Ussery, as the landowner who employed Bloodsworth, could be imputed to Yancey. In light of the undisputed evidence of record, this argument fails.

A joint venture arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control (provided the arrangement does not establish a partnership), so as to render all joint venturers liable for the negligence of the other.... For a joint venture to exist, there must be not only a joint interest in the purpose of the enterprise but also an equal right, express or implied, to direct and control the conduct of one another in the activity causing the injury.²

Here, there is no evidence that Yancey had an equal right to control how Ussery farmed his cotton. There is undisputed evidence that Yancey was paid by Ussery to help farm Ussery's cotton, as ultimately directed by Ussery. Ussery owned both the land and the cotton grown on it, and Yancey had no ownership interest in either.³ Yancey had no right to control Ussery's decision to farm his land or whether to dispose of the cotton it yielded, if any. Accordingly, the [308 Ga.App. 697] undisputed facts show that Yancey was not engaged in a joint venture with Ussery, and any negligence on Ussery's part, imputed or otherwise, is, as a matter of law, not attributable to Yancey. Therefore, the trial court erred by denying Yancey's motion for summary judgment.

Case No. A10A1636

In this appeal, Ussery contends that the trial court erred by denying him summary judgment because Bloodsworth was an independent contractor not subject to his control, and any negligence on Bloodsworth's part was therefore not imputable to Ussery. However, in light of the dangerous nature of aerial application of chemicals to open land, we affirm the trial court's judgment.

We first address whether the record demonstrates a genuine issue of material fact as to whether Bloodsworth was an independent contractor of Ussery.

Under OCGA § 51–2–4, an employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer. The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor has long been and continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished...