MILLER, P. J., DOYLE and REESE, JJ.
Santiago Espinoza, also known as Jose Ornelas (hereinafter
"Ornelas"), a farm employee, died when he was
pinned under a tractor tire while trying to remove it.
Ornelas's wife, Alda Jean Found (hereinafter, "the
plaintiff"), individually and as administratrix of
Ornelas's estate, filed a negligence action against Mike
Smith ("Mike"), who owned the farm that employed
Ornelas, and John Smith, Jr. ("John"), Mike's
son who owned a separate farm at the same
location. The parties filed cross-motions for
summary judgment, and following a hearing, the trial court
entered an order: denying the plaintiff's motion for
partial summary judgment; granting John's motion for
summary judgment; and denying Mike's motion for summary
judgment. In Case No. A17A1312, Mike appeals the denial of
his motion for summary judgment; in Case No. A17A1313, the
plaintiff appeals the grant of summary judgment to John. For
the reasons that follow, we reverse in Case No. A17A1312, and
we affirm in Case No. A17A1313.
appeal from the grant or denial of summary judgment, we
conduct a de novo review, with all reasonable inferences
construed in the light most favorable to the nonmoving
viewed, the record shows that Mike's farm was located in
Broxton, Georgia. Two other entities farmed at the same
location: John, individually, and John Smith Farms, LLC.
Although the three entities shared equipment and were located
on the same property, they were legally separate. Mike hired
Ornelas in the early 1990s, trained him, and controlled the
time, manner, and method of his work; he did, however, give
John the authority to supervise and direct Ornelas. Neither
John nor John Smith Farms, LLC, employed Ornelas or had
authority to hire or fire him.
November 14, 2013, John gave Ornelas several tasks, including
instructing him to remove dual wheels from a 4560 John Deere
tractor. John did not tell Ornelas to complete the job by a
specific time, but he did instruct him specifically not to
remove the wheels by himself.
Highsmith, John's father-in-law, who was not employed by
Mike, was present when Ornelas started removing the wheels.
Highsmith was looking after his granddaughter that morning
and was at the barn with her at a swing set. Highsmith and
his granddaughter left to drive around the blueberry patch,
but before they left, Highsmith told Ornelas to leave the
tractor alone and that he would return in a "little
bit." When he returned, however, Ornelas had already
removed the left tire and wheel without incident using a
forklift and other tools.
then picked up the right side of the tractor with an air jack
and attempted to remove the right wheel, but it would not
come off. He also attempted several other methods to remove
the wheel, including using the fork lift to bump the tire,
hooking a chain to it and pulling, putting the air jack
between the rims of the wheels, and driving the tractor
around until the wheel feel off. According to Highsmith,
Ornelas worked on the project for approximately three and a
half to four hours. Eventually, at Ornelas's request,
Highsmith brought him a hydraulic jack owned by Highsmith.
Highsmith then left to help his daughter with a task at her
house approximately a half mile away, first telling Ornelas,
"[B]e careful, I'll be right back. Give me a
minute." When Highsmith returned approximately 18
minutes later, he found Ornelas on the ground under the tire,
plaintiff sued Mike and John, claiming they were negligent by
(1) providing Ornelas with defective equipment and tools; (2)
failing to provide Ornelas with a safe work environment, (3)
failing to train Ornelas on the proper way to remove dual
wheels, and (4) failing to inspect and maintain the
equipment. The parties filed cross-motions for summary
judgment. Following a hearing, the trial court: denied the
plaintiff's motion for partial summary judgment; granted
summary judgment to John; and denied Mike's motion for
summary judgment. The order was brief and offered no basis
for the ruling other than concluding that there was no
genuine issue of material fact as to John's summary
judgment motion. The trial court certified its decision for
immediate review, and this Court granted Mike's
application for interlocutory appeal.
Mike contends the trial court erred by denying his motion for
summary judgment because there was no proof of negligence and
because Ornelas's knowledge of any alleged defect or
hazard in the tire and tools was equal or superior to his.
Negligence based upon violations of applicable
recover for injuries caused by another's negligence, a
plaintiff must show four elements: a duty, a breach of that
duty, causation and damages." "Negligence is not to
be presumed, but is a matter for affirmative proof. In the
absence of affirmative proof of negligence, we must presume
performance of duty and freedom from
plaintiff contends that Mike was negligent by violating
several regulations of the United States Occupational Safety
& Health Act of 1970 ("OSHA") and that such
violations are evidence of a breach of duty. Pretermitting
whether Mike was subject to OSHA regulations and/or whether
he violated ...