SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 2, 2020
In the Court of Appeals of Georgia
A20A1576. FAULKNER et al. v. CRUMBLEY et al.
COOMER, Judge.
Billy M. Faulkner, Merry H. Faulkner, and Billie Jo Faulkner (collectively the
“Faulkners”) appeal the trial court’s order denying their motion for summary
judgment. The Faulkners argue they were entitled to a grant of summary judgment
because appellees Sonia Crumbley and her minor son M. C. (collectively, the
“Crumbleys”) failed to present evidence of their negligence. The Faulkners further
contend the trial court erred in denying their motion for summary judgment as to the
Crumbleys’ theory of liability under Section 6-34 of the Jasper County Code of
Ordinances because the ordinance is preempted by OCGA § 4-3-1, et seq. Because
the evidence failed to establish negligence on the part of the Faulkners and because
we agree that state law preempts the county ordinance at issue in this case, we
reverse.
“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). This
Court reviews a ruling on a motion for summary judgment de novo, and views the
evidence and all reasonable inferences drawn from it in the light most favorable to the
nonmovant. Morris v. Pope, 344 Ga. App. 25, 25 (1) (806 SE2d 657) (2017). A
defendant may demonstrate that there is no genuine issue of material fact “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 the plaintiff’s case.” Mitchell v. Austin, 261 Ga. App. 585, 585
(583 SE2d 249) (2003) (citation omitted). “If the moving party discharges this
burden, the nonmoving party cannot rest on its pleadings, but rather must point to
specific evidence giving rise to a triable issue.” John Hewell Trucking Co. v. Brock,
239 Ga. App. 862, 862-863 (522 SE2d 270) (1999) (citation omitted). Guesses or
speculation which “raise merely a conjecture or possibility are not sufficient to create
even an inference of fact for consideration on summary judgment.” Brown v.
Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996) (citations omitted).
2
So viewed the record shows that on May 8, 2016, Sonia Crumbley was driving
her car at night with her minor son, M. C., who was riding in the back passenger seat.
The Crumbleys were driving south on State Highway 11 in Jasper County when the
vehicle struck a cow owned by the Faulkners standing in the roadway thereby causing
the Crumbleys to sustain injuries. The Crumbleys filed suit against the Faulkners,
alleging negligence pursuant to OCGA § 4-3-1, et seq., and Section 6-34 of the Jasper
County Code of Ordinances (the “ordinance”). The Faulkners moved for summary
judgment, arguing that they exercised ordinary care in the maintenance of their fences
and livestock and the ordinance is not applicable because it is preempted by state law.
In support of their motion, the Faulkners presented Billie Jo Faulkner’s
affidavit, in which she stated that she worked on the family farm, and that as part of
her duties and responsibilities, she checked the fences every day, including on the day
of the accident. Billie Jo averred that the five-foot high board fence with a five-strand
barb wire fence along the roadway was, in her opinion, sufficient to confine the cattle.
Billie Jo further stated that after learning of the accident, she again inspected the
fences and confirmed that they were in good repair, the gates were closed, and she
could not find any indication as to how the cow had escaped. She also averred that
prior to May 8, 2016, the cow involved in the incident had never escaped the confines
3
of the farm and that there was nothing that could have been done to prevent the cow’s
escape.
In response to the Faulkners’ motion, the Crumbleys asserted that the fence was
not sufficient to confine the cattle because, as Sonia stated in her deposition, there
were three cows in the roadway at the time of the accident. Following a hearing on
the motion, the trial court summarily denied the Faulkners’ motion, but certified its
order for immediate review. This Court granted the Faulkners’ application for
interlocutory review, and this appeal followed.
1. The Faulkners argue that the trial court erred in denying their motion
because the evidence established that they exercised reasonable care in maintaining
their fence and their cows. Specifically, the Faulkners contend the Crumbleys failed
to present any admissible evidence to challenge their showing of ordinary care
besides mere speculation. We agree.
OCGA § 4-3-3 states that “[n]o owner shall permit livestock to run at large on
or to stray upon the public roads of this state or any property not belonging to the
owner of the livestock, except by permission of the owner of such property.” While
the “mere fact that livestock is running at large permits an inference that the owner
is negligent in permitting the livestock to stray[, that permissible inference
4
disappears] when the owner introduces evidence that he has exercised ordinary care
in the maintenance of the stock.” John Hewell Trucking Co., 239 Ga. App. at 863
(citations and punctuation omitted). Nevertheless,
for the evidence to require a verdict for the defendant it must demand a
finding that he was not negligent in any respect. A jury question
reappears in the case where, although evidence of facts showing
ordinary care on his part have been introduced, other facts would
support a contrary inference.
Id. at 863. Here, the Faulkners presented evidence by way of affidavit that the fences
were sufficient to confine the cattle, that the cow struck by the Crumbleys’ vehicle
had never escaped the farm prior to the accident, and that following the accident, the
fences were in good repair and no gates were open. In response, the Crumbleys
presented no credible evidence to the contradict the Faulkners’ claims regarding the
condition of the fences, prior incidents of escape by cattle, or whether the gates were
closed. Rather, the Crumbleys presented testimony evidence that three cows were on
the road the night of the accident, which they contend is sufficient, without more, to
create a jury question that the Faulkners were negligent in maintaining their fences.
While it is true that the Crumbleys could create a jury question regarding the
Faulkners’ negligence in maintaining their fence by introducing evidence of past
5
incidents of straying, it is also true that the past incidents must have a “nexus in terms
of time and location to the defendant’s maintenance of the fencing at issue[.]” Morris,
344 Ga. App. at 27 (2) (a) (i) (citation and punctuation omitted). “Such prior, similar
incidents could create a question of fact regarding the defendant’s exercise of
ordinary care because they could show that the defendant was on notice that his
maintenance of the fence was insufficient.” Id. See also Johns v. Marlow, 252 Ga.
App. 79, 80-81 (555 SE2d 756) (2001) (defendant’s knowledge that his horses
previously had opened a gate and had broken a fence’s electric wire created a jury
question as to whether defendant exercised ordinary care in securing his horses).
Here, the fact that there may have been three stray cows that night does not
show that the Faulkners were on notice that their maintenance of the fence was
insufficient. Consequently, the Crumbleys failed to present evidence of the Faulkners’
negligence in maintaining their fences other than the mere fact that cows strayed on
the road. See West v. West, 299 Ga. App. 643, 645 (683 SE2d 153) (2009) (summary
judgment proper where the defendants introduced evidence that the fencing
surrounding the pasture was in good repair and the gates were closed at the time the
accident and the plaintiff failed to present any evidence to challenge these claims);
Thomas v. Morrison, 256 Ga. App. 127, 128 (567 SE2d 692) (2002) (summary
6
judgment proper where the defendant presented evidence that the fence was in good
repair and that the gates to the pasture were all closed and latched and the plaintiff
failed to come forward with any evidence to the contrary); John Hewell Trucking Co.,
239 Ga. App. at 863 (summary judgment proper where the defendant presented
evidence that there were no holes or breaches in the fences upon inspection
immediately after the accident, and that, while other cattle belonging to the same
owner had strayed beyond their pastures, no nexus was established in terms of time
and location to the defendant’s maintenance of the fencing here in issue). Compare
Green v. Heard Milling Co., 119 Ga. App. 116 (1) (166 SE2d 408) (1969)
(conflicting testimony of a hole in pasture fence, coupled with testimony that a back
gate was open, was sufficient evidence contradicting that defendant’s testimony of
his own care in maintaining pasture fence, such that denial of a directed verdict was
not error); Carver v. Kinnett, 209 Ga. App. 577, 579-580 (1) (434 SE2d 136) (1993)
(no summary judgment where there was evidence of the defendants’ negligence in
maintaining their fences).
Accordingly, the evidence that there were three stray cows on the roadway
rather than just one, without more, does not create a genuine issue of fact that the
Faulkners, by failing to maintain adequate fences, breached their duty to keep their
7
livestock off the road, but is only impermissible speculation. See West, 299 Ga. App.
at 645. Therefore, the trial court erred in denying the Faulkners’ motion for summary
judgment.
2. The Faulkners also argue that they were entitled to summary judgment on
allegations they violated a Jasper County ordinance because OCGA § 4-3-1, et seq.
preempts Jasper County Ordinance 6-34. We agree.
Both OCGA § 4-3-1, et seq. and Jasper County Ordinance 6-34 prohibit the
running at large of livestock. Jasper County Ordinance 6-34 provides in pertinent part
that:
[t]he running at large of horses, mules, other equidae, cattle, sheep,
goats, hogs, domestic rabbits, or domestic fowl, or ostrich and emu, or
other animals within the limits of the county is hereby declared a
nuisance and shall be unlawful for the owner or keeper of any such
animal or fowl to permit the same to run at large within the county.1
Likewise, OCGA § 4-3-3 provides that:
1
Jasper County, Georgia Code of Ordinances, PART II, Chapter 6 - Animals,
https://library.municode.com/ga/jasper_county/codes/code_of_ordinances?nodeId
=PTIICOOR_CH6AN_S6-6DEAN (last visited Sept. 9, 2020).
8
[n]o owner shall permit livestock to run at large on or to stray upon the
public roads of this state or any property not belonging to the owner of
the livestock, except by permission of the owner of such property.
The Faulkners contend that the Jasper County Ordinance is preempted by state statute
because the ordinance imposes greater liability. Specifically, the Faulkners assert that
OCGA § 4-3-3 provides for an exception to liability where livestock runs at large on
property with the permission of the owner whereas the ordinance makes no such
exception. The Faulkners further argue that OCGA § 4-3-3 only provides liability for
permitting livestock to run at large or stray, while the ordinance creates liability for
animals without limitations to livestock.2 Lastly, the Faulkners contend that state law
only extends liability to owners of the grazing animals, whereas the ordinance
extends liability to both the owners and keepers of animals.
Laws of a general nature shall have uniform operation throughout
this state and no local or special law shall be enacted in any case for
which provision has been made by an existing general law, except that
the General Assembly may by general law authorize local governments
by local ordinance or resolution to exercise police powers which do not
conflict with general laws.
2
OCGA § 4-3-2 (1) defines the term livestock to mean “all animals of the
equine, bovine, or swine class, including goats, sheep, mules, horses, hogs, cattle, and
other grazing animals.
9
Ga. Const. of 1983, Art. III, Sec. VI, Par. IV (a). “The doctrine of state preemption
is based on the concept that statutes of the state legislature control over county
ordinances. Generally preemption is based on legislative intent. . . . [S]tate law may
preempt local law expressly, by implication, or by conflict.” Franklin County v.
Fieldale Farms Corp., 270 Ga. 272, 273-274 (1) (507 SE2d 460) (1998) (citations
omitted). “[A]n exception to the general rule of preemption [applies] when [the]
general law authorizes the local government to act and the local ordinance does not
conflict with general law.” Id. at 275 (2). “We have concluded that there was no
conflict when the local law did not impair the general law’s operation but rather
augmented and strengthened it.” Id.
The statute at issue here, OCGA § 4-3-1, specifically finds and declares “a
necessity for a uniform state-wide livestock law embracing all public roads in the
state and all other property.” The ordinance at issue in this case appears to deal with
the same subject as the general law, and thus the general rules of preemption would
control unless the ordinance falls within the exception to the uniformity clause. In
examining OCGA § 4-3-1, this Court has stated that it “expressly preempts local laws
on the subject by declaring the need for uniformity. Nothing in the statute authorizes
10
local governments to exercise power in this regard.” Hortman v. Guy, 242 Ga. App.
174, 176 (3) (529 SE2d 182) (2000). Compare Grovenstein v. Effingham County, 262
Ga. 45, 47 (1) (414 SE2d 207) (1992) (the Supreme Court of Georgia upheld a county
ordinance where the state statute at issue expressly authorized counties “to exercise
by local ordinance the police power of revoking licenses for the sale of beer and
wine[.]”).
In Hortman, just as in the present case, the plaintiffs alleged liability under a
county ordinance following an auto accident with a cow. 242 Ga. App. at 174. This
Court upheld summary judgment in favor of the defendant finding that “a county
ordinance extending responsibility for stray livestock to persons not included in the
state statute would not augment the state law; it would alter its stated purpose, which
is to create a state-wide uniform law applying to these circumstances.” Id. at 176 (3).
Here, the Faulkners argue, and we agree, that the ordinance alters the stated purpose
of the statute because (1) it does not allow for livestock to run at large on property
with the permission of the owner of the property; and (2) it extends liability to
animals that are not “grazing animals;”3 By expressly preempting local laws on the
3
We disagree with the Faulkners’ third argument that the ordinance extends
liability to owners and keepers of such animals as OCGA § 4-3-2 (2) defines the
term”owner” to include “any person, association, firm, or corporation, natural or
11
subject of livestock animals on the public roadways and declaring the need for state-
wide uniformity, we must conclude that the General Assembly has not authorized
local governments to regulate such matters. Compare Pawnmart, Inc. v. Gwinnett
County, 279 Ga. 19, 20 (2) (608 SE2d 639) (2005) (no preemption where state statute
regulating pawnbrokers expressly preserves local laws (which include county
ordinances) to promulgate additional rules, effectively authorizing them.)
“Preemption of a local ordinance may be inferred generally from the comprehensive
nature of a state statute[.]” City of Atlanta v. S.W.A.N. Consulting & Security Services,
Inc., 274 Ga. 277, 279 (2) (553 SE2d 594) (2001).
Accordingly, the Faulkners are entitled to summary judgment as to the
Crumbleys’ claims under the ordinance.
Judgment reversed. Miller, P. J., and Mercier, J., concur.
artificial, owning, having custody of, or in charge of livestock.” The term “keeper”
is synonymous with “having custody of, or in charge of livestock.”
12