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Handberry v. Manning Forestry Services, LLC

Court of Appeals of Georgia, Third Division

October 28, 2019


          DILLARD, P. J., GOBEIL and HODGES, JJ.

          Dillard, Presiding Judge.

         When William Handberry, Sr. died after falling into an open well, Marie Handberry-as surviving spouse and executor of his estate-brought this negligence action against several defendants. Marie's claims are premised on alleged violations of OCGA § 44-1-14, which, in relevant part, requires "any person" to report "an open abandoned well or hole" located on "public or private property" to "the governing authority of the county in which the hazard exists." Marie now appeals from the trial court's grant of summary judgment to Manning Forestry Services, LLC. Specifically, she argues that the trial court erred when it ruled that (1) OCGA § 44-1-14 may not form the basis of a negligence-per-se claim; and (2) regardless, there is no evidence Manning knew of the well before William's death. But because the evidence is insufficient as a matter of law to show that Manning had prior, actual knowledge of the well in which William died, Marie cannot establish that Manning violated OCGA § 44-1-14. We therefore affirm the judgment of the trial court.

         Viewing the evidence in the light most favorable to Marie (i.e., the nonmoving party), [1] the record shows that, on July 25, 2015, William drove a four-wheeler onto property known as the "McCroan Tract."[2] When one of the vehicle's wheels entered a well that was hidden from view by vegetation, the four-wheeler overturned, and William fell into the well, suffering fatal injuries.

         On March 31, 2017, Marie sued several defendants that previously performed work on the property (including Manning), alleging that they were negligent in failing to report the existence of the well to the property owner.[3] Following discovery, Manning moved for summary judgment on grounds that, as relevant to this appeal, (1) a tort action may not lie for violating OCGA § 44-1-14; and (2) regardless, Marie presented no evidence that Manning-which planted trees on the property-had actual knowledge of the well before William's death or otherwise breached a duty it owed to him. In her opposition to Manning's motion for summary judgment, Marie maintained that a violation of OCGA § 44-1-14 may establish negligence per se and that circumstantial evidence-which we address in detail infra-is sufficient to create a jury question as to Manning's prior knowledge of the well. The trial court granted Manning's motion for summary judgment, concluding that (1) OCGA § 44-1-14 neither forms a basis for a claim of negligence per se nor gives rise to a private right of action; and (2) alternatively, Marie's circumstantial evidence of Manning's purported knowledge of the well is insufficient as a matter of law. This appeal follows.

         This Court reviews de novo a grant or denial of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant.[4] Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.[5] A defendant seeking summary judgment may discharge its burden in this regard "by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case."[6] And if the movant meets this burden, the nonmovant "cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue."[7] In that vein, speculation which "raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment."[8] Moreover, at the summary-judgment stage, we do not "resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution."[9]But if there is insufficient evidence to create a genuine issue as to any essential element of a plaintiff's claim, "that claim tumbles like a house of cards, "[10] and all other factual disputes are rendered immaterial.[11] With these guiding principles in mind, we turn to Marie's claims on appeal.

         1. Marie contends that the trial court erred in concluding that no genuine issue of material fact exists as to whether Manning had actual knowledge of the existence of the well before William's death. Specifically, she maintains that an otherwise straight line of trees planted by Manning before William's death changes course at the well's location, showing that Manning knew of the well's existence. We disagree.

         To state a cause of action for negligence in Georgia, a plaintiff must show "the existence of a legal duty; breach of that duty; a causal connection between the defendant's conduct and the plaintiff's injury; and damages."[12] Importantly, negligence is not to be presumed, but is "a matter for affirmative proof."[13] And in the absence of affirmative proof of negligence, we must "presume performance of duty and freedom from negligence."[14]

         The elements of a negligence claim primarily at issue are a duty and a breach of that duty, which Marie seeks to establish-under a theory of negligence per se[15]-by showing a violation of OCGA § 44-1-14. This statute provides, in relevant part, that "[w]henever it is brought to the attention of any person that an open abandoned well or hole . . . exists on public or private property, such person shall immediately inform the governing authority of the county in which the hazard exists."[16] The statute further sets forth a procedure by which the governing authority of the county may then correct the hazard.[17] And by the very terms of the statute, the duty to report does not arise unless a person has actual knowledge-i.e., "[w]henever it is brought to the attention of any person"-of the existence of an "open abandoned well or hole."[18]

         Here, the record shows that, in June 2010, Manning began preparation for planting pine trees in the section of the McCroan Tract in which William later died, and planting began the following November. Manning did not do any work on the property after planting was completed in 2010. Manning typically plants pine trees six feet apart in straight rows if the land is flat; the goal is to make each row as long as possible. If the land is hilly, trees are planted along the contours of the land. And obstacles such as a large rock, a stump, a hole in the ground, or a large puddle or swampy area are other common causes of deviations from straight lines. Rows of trees typically are spaced 12 feet apart.

         Manning plants trees by using two-person teams: one person drives a bulldozer, which pulls a tree planter in which the other person rides and which carries the seedlings to be planted. Robert Wells-Manning's crew leader and sole full-time employee at the time-conducted the preparation work and drove a bulldozer used to plant pine trees in the McCroan Tract. Three seasonal workers from Mexico assisted Wells with the planting-one drove a second bulldozer, and the other two rode in the planters.[19] During the planting, one 12-foot row typically separated each bulldozer, so that the teams were operating on rows 24 feet away from each other.

         Manning's owner, Gene Manning, testified in a deposition that-although he delivered seedlings and equipment to the McCroan Tract-he did not do any of the preparation work or planting, inspect the property, or otherwise have an opportunity to observe any holes in the ground. And to his knowledge, no wells were found on the McCroan Tract while Manning planted trees. Gene also testified that if an employee encounters a well while working on property, the employee is expected to inform the landowner and mark the area with stakes. Wells similarly testified that-although he could not recall anything that prevented planting trees in a straight row on the McCroan Tract in 2010-he "flag[ged]" every well he found while working for Manning, and the only reason he would not "flag" a well is if he did not see it. Indeed, Wells did not recall seeing a well on the McCroan Tract, and he testified that he would know if one had been found during Manning's work on the property. Wells also noted that-during the time he worked on the McCroan Tract-the ground was "real wet," "boggy," "rough," and "stumpy," and the bulldozer "got stuck a lot" due to the wet ground.

         Previously, in 2008, Hawkins Logging harvested timber in the McCroan Tract on behalf of Georgia-Pacific. And a Georgia-Pacific representative testified in a 2017 deposition that its personnel involved in the 2008 harvest were not aware of any wells on the property. As is the case with Manning, if Georgia-Pacific personnel encounter a well while working on property, they are expected to inform the landowner and "flag[]" the area.

         Manning relies on the foregoing evidence to show that it did not know of the well's existence on the McCroan Tract before William's death. Nevertheless, Marie sought to call this proposition into question by presenting the affidavit of her forestry expert, Alex Nixon. Nixon inspected the area around the well several times beginning in August 2015, by which time the well had been "covered by a mound of dirt several feet high." According to Nixon, the pine trees in that area generally were planted in straight rows parallel to a road. But immediately before the well's location, one of the rows changed direction, as a result of which three trees were on a 45-degree angle from the rest of the row. Nixon attested that "[t]he row then picks up on the opposite side of the well."

         Based on these observations, Nixon opined that "as the bulldozer and tree planter approached the well, the operator must have seen the well opening[ ] and abruptly changed course by 45 degrees to avoid the well." According to Nixon, "[o]nce the bulldozer drove around the well and repositioned on the opposite side, the row was continued, starting about 10 feet beyond the well." Nixon further attested that he saw no obstacles-other than the (now-covered) well-large enough to have caused the diversion. As a result, it was Nixon's opinion that, when Manning planted the trees, "the well was open, and the bulldozer operator saw the well and intentionally avoided it by changing the course of the row that was headed directly toward the well" because avoidance of the open well was the "only explanation" for the pattern of trees.

         Nixon's opinion that Manning personnel saw an open well while planting trees in 2010 at the location where William died relies entirely on two observations: (1) an otherwise straight tree line deviated 45 degrees around the "mound of dirt" that stood at the well's location on the dates of Nixon's inspections (the first of which occurred in 2015); and (2) no other obstacles that were present on those dates were large enough to have caused the diversion. But even accepting both of those observations as true, they constitute only circumstantial evidence that Manning personnel saw an open well while planting trees in 2010, because they are consistent both with Nixon's hypothesis and any number of alternative hypotheses under which the planters did not see an open well.[20] For example, given Nixon's observation that "a mound of dirt several feet high" stood in place of the well in 2015, it is equally possible that (a) planters deviated from a straight line at the well's location in 2010 because the ground at that time similarly rose-or appeared to do so due to structures associated with the well or other obstacles-at that spot, or (b) the ground structure near the well gave the appearance of a tree stump, one or more rocks, and/or a "boggy" surface.[21]

         Ge the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is "a question for the jury."[22] Nevertheless, before a plaintiff in a civil case can have a verdict in his favor supported solely by circumstantial evidence, such evidence "must be such as to reasonably establish the theory relied upon, and to preponderate to that theory rather than to any other reasonable hypothesis."[23] Put another way, circumstantial evidence is insufficient to give rise to a genuine issue of material fact unless either (a) it is inconsistent with direct evidence on that issue, or (b) if consistent with the direct evidence, it demands a finding of fact on that issue in favor of its proponent.[24] Thus, circumstantial evidence may be sufficient for a plaintiff's claim to survive summary judgment, if "other theories are shown to be less probable," even if those other theories are not conclusively excluded.[25] Consequently,

before circumstantial evidence can have any probative value to rebut or contradict direct and positive testimony of an unimpeached witness of the alleged facts in question, such evidence must point at least more strongly to a conclusion opposite to the direct testimony. It is not sufficient that such circumstantial evidence points equally one way or the other.[26]

         Here, all of the direct record evidence of actual knowledge supports only one conclusion-i.e., that Manning had no knowledge of the well's existence before William's death. In particular, Manning's owner and crew chief both testified that no wells were found during their work on the property (during which time the crew chief typically was only two twelve-foot rows away from the only other bulldozer performing such work), and that any such well would have been flagged. The crew chief also added that, given his position, he would know if a well had been found. And that evidence is squarely corroborated by the Georgia-Pacific representative's testimony that no wells were found on the property during a timber harvest two years earlier.

         Marie's circumstantial evidence to the contrary, then, is insufficient because it does not "point . . . more strongly" to a conclusion that Manning personnel actually knew of the well's existence-i.e., subjectively recognized that whatever caused the tree-line deviation was, in fact, an open, abandoned well-or establish that it is "less probable" that Manning did not know of the well's existence.[27] In particular, Nixon's observation that, as of the dates of his inspections, the mound of dirt covering the well was the only obstacle present that would have caused the tree-line deviation gives rise only to a speculative inference that no other such obstacles existed when Manning was there more than four and one-half years earlier.[28] Importantly, given the several-foot-high mound of dirt covering the well during Nixon's multiple inspections (the first of which occurred in August 2015), the well's location necessarily had a different appearance at those times than when Manning was planting in the area-and, for that matter, when William died. It therefore would be pure speculation for Nixon or a jury to determine that, when Manning was planting in the area, (1) the well was open and plainly visible; (2) it obviously looked like a well; and (3) Manning personnel subjectively recognized it as an open and abandoned well.[29] Evidence to the effect that Manning and Georgia-Pacific personnel saw no wells points more strongly in the opposite direction, as does the critical fact that William also appears not to have recognized the well as an open well until it was tragically too late to avoid driving over it.

         And where, as here, an inference is founded on speculation,

it is without evidentiary value. . . . [I]nferences must be based on probabilities rather than mere possibilities. [Thus], when a party relies on inferences to prove a point, not only must those inferences be factually based, they must tend in some proximate degree to establish the conclusion ...

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