SECOND DIVISION
MILLER, P. J.,
MERCIER, J., and PHIPPS, SENIOR APPELLATE JUDGE.
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
January 27, 2021
In the Court of Appeals of Georgia
A20A1787. NEWTON et al. v. JACOBS et al.
PHIPPS, Senior Appellate Judge.
After obtaining a permit, Travis Jacobs burned property owned by his cousin,
Frank A. Argenbright, Jr., to burn off crop residue and a pile of pine stumps. The fire
escaped and burned property owned by Ronald Newton. The trial court granted
summary judgment to Jacobs and Argenbright, finding that the Georgia Prescribed
Burning Act shielded Jacobs and Argenbright from liability. Ronald and Stacey
Newton1 now appeal. For the following reasons, we affirm.
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Stacey Newton voluntarily dismissed all of her claims against Jacobs and
Argenbright. However, the trial court’s order granting summary judgment to Jacobs
and Argenbright refers to both Newtons, and both Newtons appeal from the trial
court’s order.
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). A de novo standard of review applies to an appeal
from a grant or denial of summary judgment, and we view the evidence,
and all reasonable conclusions and inferences drawn from it, in the light
most favorable to the nonmovant.
Patton v. Cumberland Corp., 347 Ga. App. 501, 502 (819 SE2d 898) (2018) (citation
omitted).
Argenbright owns a 15-acre tract in Brantley County. Argenbright bought the
property to provide a place for his brothers and cousins and their children and
grandchildren to hunt. When Argenbright purchased the property, he asked Jacobs to
manage the property, and Jacobs agreed. Jacobs planned to burn the 15-acre field to
burn off crop residue and a small pile of pine stumps. His purpose was to clear the
area in order to replant it as a food plot for deer hunting. Jacobs, who is a retired
Agricultural Stabilization and Conservation Service employee, has had years of
experience with prescribed burning. As a child and a young man, he helped his father,
who was a farmer, with burning fields, and he later burned his own fields. He also
helped his father and grandfather burn wooded areas on their farms. To prepare for
the burn of the Argenbright property, Jacobs cut firebreaks with a harrow on three
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sides of the field he intended to burn. The Georgia Forestry Commission (“GFC”) cut
a firebreak on the fourth side of the field.
On the morning of March 28, 2017, Jacobs called the Brantley-Pierce County
GFC Unit and requested a burn permit for that day. After considering the weather
forecast and the fire danger rating for the day, the GFC issued Jacobs a permit.
Jacobs’ brother was present to assist him with the burn. Jacobs planned the burn for
a day that he knew a GFC employee would be nearby to assist if necessary.
The permit had a “begin time” of 9:30 a.m. Sometime after 9:30 a.m., after
testing the wind, Jacobs started the fire. From the point of ignition, Jacobs strung a
line of fire along the four sides of the field, intending for the fire lines to meet roughly
in the center of the field. When Jacobs and his brother had gone all the way around
the field, Jacobs noticed that the fire had jumped the firebreak. At that point, Jacobs
called for help from the GFC employee he knew was working nearby. The GFC
employee came to the field and made another two firebreaks on the east side of the
pre-existing break, more than doubling its initial size. The fire jumped the widened
break, ultimately making its way to the Newtons’ property, where it destroyed Ronald
Newton’s garage workshop, including various tools and car parts.
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In June 2018, the Newtons filed suit against Argenbright and Jacobs.
Argenright and Jacobs filed a motion for summary judgment, contending that the
Georgia Prescribed Burning Act, OCGA §§ 12-6-145 - 12-6-149, protected them
from liability. The trial court granted summary judgment to Argenbright and Jacobs,
finding that Argenbright and Jacobs were entitled to the protections afforded by
OCGA § 12-6-148 and that the record contained no evidence from which a jury could
reasonably conclude that Jacobs was grossly negligent. This appeal followed.
1. The Newtons argue that the trial court erred in granting summary judgment
to Jacobs and Argenbright based on its determination that Jacobs and Argenbright are
entitled to the protections from liability provided by OCGA § 12-6-148. We disagree.
(a) The Newtons first contend that OCGA § 12-6-148 does not apply in this
case because the fire did not meet the statutory definition of prescribed burning in
OCGA § 12-6-147 (2). The Georgia Prescribed Burning Act defines prescribed
burning as follows:
“Prescribed burning” means the controlled application of fire to existing
vegetative fuels under specified environmental conditions and following
appropriate precautionary measures, which causes the fire to be confined
to a predetermined area and accomplishes one or more planned land
management objectives or to mitigate catastrophic wildfires.
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OCGA § 12-6-147 (2). The Newtons argue that because the fire was not contained to
a predetermined area, it was not a prescribed burn. We find this argument to be
unpersuasive.
OCGA § 12-6-148 protects a property owner or the owner’s agent conducting
an authorized prescribed burn under the Georgia Prescribed Burning Act from
liability for “damages or injury caused by fire or resulting smoke unless it is proven
that there was gross negligence in starting, controlling, or completing the burn.”
OCGA § 12-6-148 (b).
The General Assembly’s legislative intent in enacting the Georgia Prescribed
Burning Act is set forth in OCGA § 12-6-146:
(a) It is declared by the General Assembly that prescribed burning is a
resource protection and land management tool which benefits the safety
of the public, Georgia’s forest resources, the environment, and the
economy of the state. The General Assembly finds that:
(1) Prescribed burning reduces naturally occurring vegetative
fuels within forested areas. Reduction of such fuels by burning reduces
the risk and severity of major wildfire, thereby lessening the threat of
fire and the resulting loss of life and property;
(2) Georgia’s ever-increasing population situates urban
development directly adjacent to fire prone forest lands. The use of
prescribed fire to manage fuels in interface areas would substantially
reduce the threat of damaging wildfire in urban communities;
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(3) Forest land constitutes significant economic, biological, and
aesthetic resources of state-wide importance. Prescribed burning on
forest land serves to reduce hazardous accumulations of fuels, prepare
sites for both natural and artificial forest regeneration, improve wildlife
habitat, control insects and disease, and perpetuate fire dependent
ecosystems;
(4) State and federally owned public use lands such as state parks,
state and national forests, and wildlife refuges receive resource
enhancement through use of prescribed burning;
(5) As Georgia’s population continues to grow, pressures from
liability issues and smoke nuisance complaints cause prescribed burn
practitioners to limit prescribed burn activity, thus reducing the
above-mentioned benefits to the state;
(6) Public misunderstanding of the benefit of prescribed burning
to the ecological and economic welfare of the state exerts unusual
pressures that prevent uninhibited use of this valuable forest resource
management tool; and
(7) Fire benefits rare, threatened, and endangered plants, deer,
turkey, quail, dove, and other game as well as numerous songbirds and
other nongame species by the increased growth and yields of herbs and
legumes. It also allows openings for feeding and travel.
(b) It is the purpose of this part to authorize and promote the continued
use of prescribed burning for community protection, silvicultural,
environmental, and wildlife management purposes.
The Newtons argue that while protecting a person who starts a fire from
liability for damages caused by smoke, drifting ashes, or heat is a reasonable
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objective of the General Assembly, it is unreasonable to believe that the General
Assembly intended to protect a person who starts a fire from liability for allowing the
fire to escape onto the land of others. However, the protections of OCGA § 12-6-148
apply not only to liability for damages from smoke, drifting ashes, or heat, but also
to “damages or injury caused by fire.” Thus, the General Assembly clearly
contemplated that an authorized prescribed burn could escape the area intended to be
burned. Consequently, we conclude that the OCGA § 12-6-148 (b) protection from
liability applies even if the fire which was intended to be confined to a predetermined
area escapes the predetermined area.
(b) The Newtons also contend that OCGA § 12-6-148 does not apply in this
case because the burn was not conducted in accordance with the permit issued. Again,
we disagree.
OCGA § 12-6-148 (a) provides:
Prescribed burning conducted under the requirements of this part shall:
(1) Be accomplished only when an individual with previous prescribed
burning experience or training is in charge of the burn and is present on
site until the fire is adequately confined to reasonably prevent escape of
the fire from the area intended to be burned;
(2) Be considered in the public interest and shall not create a public or
private nuisance;
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(3) Be considered a property right of the landowner; and
(4) Be conducted in accordance with a permit issued under Part 3 of this
article.
The Newtons acknowledge that a permit was issued to Jacobs, but contend that
Jacobs failed to conduct the burn in accordance with the permit because he did not
have a permit to burn agricultural land and he started the fire almost two hours later
than the permitted time to start.
The permit issued to Jacobs has a section to indicate “type of burning” with
three broad categories. The three broad categories are “agriculture,” “silviculture,”
and “land clearing/machine piled natural vegetation.” Within the category of
agriculture, the permit has boxes to mark “improved pasture,” “cultivated crop,”
“orchard,” and “old fields.” Within the category of silviculture” are boxes for “hazard
reduction,” “wildlife mgmt,” “site prep,” and “long leaf.”
On the permit issued to Jacobs, the “type of burning” indicated was “land
clearing/machine piled natural vegetation.” The Newtons’ argument that the permit
issued to Jacobs was not marked to permit the burning of agricultural land appears
to be based on the fact that the type of burning indicated was not one of the choices
within the category of “agriculture.” However, Jacobs testified that he intended to
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burn a 15-acre field of crop residue and a pile of stumps for the purpose of using the
area as a food plot for deer. The chief ranger of the Brantley-Pierce County GFC Unit
stated in an affidavit that the burn permit issued to Jacobs was appropriate for the
activity of clearing land of stump piles and land clearing for planting food plots. We
find no support in the record to support the Newtons’ argument that the fire was not
conducted in accordance with the permit issued to Jacobs because the permit did not
authorize Jacobs to burn agricultural land.
We are also unpersuaded by the Newtons’ argument that Jacobs failed to
conduct the burn in accordance with the permit because the fire was set about 11:19
a.m. The permit issued to Jacobs indicates a “begin time” of 9:30 a.m. The chief
ranger of the Brantley-Pierce County GFC Unit stated in his affidavit that the time of
the burn permit listed as the “begin time” is the earliest that the burn may begin and
that the burn is not required to begin at the listed time. The Newtons argue that the
chief ranger’s affidavit compared to the face of the permit creates a factual dispute
that precludes summary judgment. However, the Newtons point to no evidence in the
record that supports their contention that the “begin time” on the permit was the time
that the burn was required to start. Consequently, the Newtons’ argument that the fire
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was not conducted in accordance with the permit because the fire was started later
than the “begin time” shown on the permit fails.
2. The Newtons contend that the trial court erred as a matter of law in granting
summary judgment to Jacobs and Argenbright based on its determination that there
was insufficient evidence of gross negligence to create a jury question. We disagree.
“‘Gross negligence’ is defined as the failure to exercise that degree of care that
every man of common sense, however inattentive he may be, exercises under the
same or similar circumstances; or lack of the diligence that even careless men are
accustomed to exercise.” Patton, 347 Ga. App. at 505 (2) (citations and punctuation
omitted). See also OCGA § 51-1-4 (“In general, slight diligence is that degree of care
which every man of common sense, however inattentive he may be, exercises under
the same or similar circumstances. As applied to the preservation of property, the term
‘slight diligence’ means that care which every man of common sense, however
inattentive he may be, takes of his own property. The absence of such care is termed
gross negligence.”) “In other words, gross negligence has been defined as equivalent
to the failure to exercise even a slight degree of care[.]” Heard v. City of Villa Rica,
306 Ga. App. 291, 294 (1) (701 SE2d 915) (2010) (citation and punctuation omitted).
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Generally, when facts alleged as constituting gross negligence are such
that there is room for difference of opinion between reasonable people
as to whether or not negligence can be inferred, and, if so, whether in
degree the negligence amounts to gross negligence, the right to draw the
inference is within the exclusive province of the jury. In cases wherein
the evidence allegedly supporting the accusations of gross negligence
is plain and indisputable, however, the court may resolve the questions
of whether the defendant acted with gross negligence as a matter of law.
Morgan v. Horton, 308 Ga. App. 192, 198 (3) (707 SE2d 144) (2011) (citations and
punctuation omitted).
The Newtons argue that the record contains sufficient evidence for a jury to
conclude that Jacobs was grossly negligent. Specifically, the Newtons contend that
the fire was started on a high fire danger day, that the wind was blowing at nine miles
per hour at the time of the fire, and that Jacobs misunderstood the effect of humidity
on fire behavior. However, even if we assume all of these facts to be true, the
evidence in the record does not support a finding that Jacobs was grossly negligent.
Before the day of the burn, firebreaks were cut on all four sides of the field that
Jacobs intended to burn. Jacobs requested and obtained a burn permit on a day that
he knew a GFC employee would be nearby to assist if necessary. Before starting the
fire, Jacobs assessed the wind direction and selected his ignition point based on that
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assessment. Consequently, we agree with the trial court’s conclusion that “[e]ven
assuming there was evidence sufficient to create a jury issue as to whether Jacobs was
negligent in some way while starting, controlling, or completing the burn, there is no
evidence from which a jury could reasonably conclude that he failed to exercise slight
diligence and was therefore grossly negligent.” Thus, the trial court did not err in
granting summary judgment to Jacobs and Argenbright.
Judgment affirmed. Miller, P. J., and Mercier, J., concur.
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Ronald Newton v. Travis Jacobs
Combined Opinion