MORRIS et al.
MCFADDEN, P. J., BRANCH and BETHEL, JJ
McFadden, Presiding Judge.
and Patricia Morris appeal the grant of summary judgment to
Richard Pope in this negligence action based on escaped
livestock. The Morrises argue that Pope negligently allowed a
calf to stray onto a road and failed to adequately warn the
public of this dangerous condition. The Morrises have not
pointed to evidence creating a jury question on their claim
that Pope breached his duty to prevent the calf from straying
onto the road by failing to maintain an adequate fence. Their
failure-to-warn claim is based on mere speculation. But
whether Pope was negligent after he found the calf outside
his fenced pasture depends on disputed issues of material
fact. So we affirm in part and reverse in part.
court may grant summary judgment if the record shows
"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). "Our
review of a grant of summary judgment is de novo, and we view
the evidence and all reasonable inferences drawn from it in
the light most favorable to the nonmovant." West v.
West, 299 Ga.App. 643, 644 (683 S.E.2d 153) (2009)
viewed, the record shows that one evening, Pope's wife
received a telephone call that there was a calf on Collins
Road near its intersection with Perry Road. Pope and his son,
Michael Pope, immediately left to find the calf, Pope driving
his car and Michael Pope driving his truck. They arrived at
the intersection within minutes. They parked their vehicles
on the shoulder of Collins Road and turned on their hazard
to Michael Pope, they found the calf in a ditch along the
side of the road, just outside the fenced pasture. They spent
five or ten minutes attempting to herd the calf. When they
were unsuccessful, Michael Pope left to turn off the electric
fence so they could return the calf to the enclosure. But
according to defendant Richard Pope, they never saw the calf.
In any event, within five to ten minutes, Morris struck the
calf on Collins Road.
Pope inspected his fence and saw that, near the location of
the collision, two strands of barbed wire were slightly
stretched and had hair on them. He presumed that is where the
calf had escaped. The Morrises agree that the evidence shows
that the calf likely escaped by going between two strands of
barbed wire fencing in the immediate vicinity of where Morris
ultimately collided with it.
Morrises filed this action for Morris's injuries and for
Patricia Morris's loss of consortium. Pope moved for
summary judgment. The Morrises responded, arguing that a jury
could find that Pope breached his statutory duty to prevent
the calf from straying onto the road by failing to maintain
an adequate fence and by failing to take proper action to
return the calf to the pasture once it was located; and that
Pope breached his duty to adequately warn motorists of the
hazard of the calf on the road.
trial court granted summary judgment to Pope on the
Morrises' claims based on Pope's alleged breach of
duty to prevent the calf from straying on the road. The court
observed that the Morrises had not alleged a failure-to-warn
claim in the complaint, but considered the claim nonetheless
(Pope had addressed the claim in his reply brief). See
Pew v. One Buckhead Loop Condo. Assn., 305 Ga.App.
456, 458 (1) (a) (700 S.E.2d 831) (2010). The court granted
Pope summary judgment on that claim as well. The Morrises
filed this appeal.
Permitting calf to stray upon the public road.
Morrises argue that questions of fact preclude summary
judgment on their claims based upon the calf's presence
on the road. We agree in part.
§ 4-3-3 states that no owner of livestock shall permit
livestock "to run at large on or to stray upon the
public roads of this state. . . ." While the
mere fact that livestock is running at large permits an
inference that the owner is negligent in permitting the
livestock to stray[, ] when the owner introduces evidence
that he has exercised ordinary care in the maintenance of the
stock, that permissible inference disappears. . . . A jury
question reappears in the case where, although evidence of
facts showing ...