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Morris v. Pope

Court of Appeals of Georgia, Fifth Division

October 31, 2017

MORRIS et al.
v.
POPE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ

          McFadden, Presiding Judge.

         Anthony 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.

         1. Facts.

         A trial 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) (citation omitted).

         So 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 lights.

         According 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.

         Later, 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.

         The 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.

         The 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.

         2. Permitting calf to stray upon the public road.

         The 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.

         OCGA § 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 ...

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