I am liable for replacing the car that hit and killed my cow that was loose?

03/05/2009 - Animals - State: GA #15459

Full Question:

One of my cows got out of the pasture. She was struck by a car. No injuries to driver, no passenger, car totaled and cow dead. Car owner did not have proper insurance on car to cover this accident. He was speeding excessively. He wants me to buy a replacement car. Question: what is my legal responsibility for this situation?

Answer:

The answer will be a matter of subjective determination for the court, based on all the facts and circumstances involved. Accidents are governed by tort law, which requires finding a person negligent in causing foreseeable harm in order to be held liable.

Georgia law requires an owner to prevent livestock from straying onto roads. When there is an auto accident involving a stray cow, an inference of the owner's negligence in causing the accident is allowed. However, this inference may be disproved by showing that the owner used care in preventing the animal from straying.

Please see the cases below for further discussion:

JOHNS v. MARLOW, 252 Ga. App. 79 (2001)

555 S.E.2d 756

JOHNS v. MARLOW.

A01A1557.

Court of Appeals of Georgia.

DECIDED: OCTOBER 17, 2001

MILLER, Judge.

William Scott Johns sued David Marlow for injuries he sustained when Johns's motorcycle collided with Marlow's horse on a public road. The trial court granted Marlow's motion for summary judgment, and Johns appeals. As genuine issues of fact remain, we reverse.
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.[fn1] When this Court reviews an appeal from a grant of summary judgment, a de novo review of the law is conducted and the evidence and all reasonable conclusions and inferences drawn from the evidence are viewed in the light most favorable to the nonmovant.[fn2]
So construed, the evidence reveals that six to eight weeks prior to the accident, Marlow purchased a horse he named Bones and placed him in the same pasture with two other horses. These two horses were not receptive to Bones and soon all three horses began running and kicking in an attempt to establish dominance. To prevent the horses from injuring one another, Marlow separated Bones from the other two horses and placed him in an adjacent pasture separated by a cross-fence that was secured by a gate with a latch.

On the morning of October 23, 1997, Bones strayed onto a road where he collided with Johns's motorcycle. Marlow subsequently discovered that the gate to the cross-fence between the pastures was open and that some force had pushed the boards on the outer fence adjacent to the road so that they had become separated from the posts, leaving a gap for a horse to escape.

In two related enumerations, Jones challenges the grant of summary judgment to Marlow, arguing that the court erred in finding that Marlow exercised ordinary care in maintaining his horses, which the court held rebutted the permissible inference of negligence associated with Bones straying onto the road.

O.C.G.A. § 4-3-3 provides that "[n]o owner shall permit livestock to run at large on or to stray upon the public roads of this state . . . ." And where an individual is injured by livestock,

[t]he mere fact that livestock is running at large permits an inference that the owner is negligent in permitting the livestock to stray; but when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock, that permissible inference disappears. 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.[fn3]
Marlow surmised that the other two horses opened the gate to the cross-fence by manipulating the latch with their teeth and weight, and that once inside the pasture that Bones occupied, they ran and shoved Bones, pushing him through the outer fence adjacent to the road. It is true that "[g]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment."[fn4] But here, Marlow's surmising is based upon facts of which he had first hand knowledge.[fn5]
Ordinary care is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.[fn6] Although Marlow deposed that he exercised ordinary care in the maintenance of the horses (i.e., regular feeding and watering, and well constructed and maintained fences), there was evidence to the contrary. Marlow's own testimony establishes that he was aware that the horses were running and kicking at each other to establish dominance. And he acknowledged that the two horses had opened the cross-fence gate during the night previous to the accident and entered the pasture where Bones was located, and that the horses broke the electric wire attached to the outer fence where Bones escaped. Marlow also deposed that he was aware that some horses are capable opening gates but nevertheless failed to secure the fence between pastures with a lock. Moreover, the fact that Bones pushed through the fence adjacent to the road merely dislodging the boards from the posts without breaking the fence, is contrary to Marlow's assertion that he exercised ordinary care in the maintenance of his fence.
Under these circumstances, a jury should decide whether ordinary care required Marlow to do more than merely separate the horses by a cross-fence secured only by a latch that was not locked and that horses could open.[fn7] A jury could infer that such lack of maintenance allowed the two aggressive horses to enter the adjacent pasture and challenge Bones, resulting in him being pushed through the outer fence and running astray.
Notwithstanding Marlow's presentation of evidence to show that he exercised ordinary care, there were other facts present to support a contrary inference, thereby creating a jury question. Thus, the court erred in granting summary judgment in favor of Marlow.

Judgment reversed. Blackburn, C.J., Johnson, P.J., Ruffin, Eldridge, Barnes, and Ellington, JJ., concur. Andrews, P.J., dissents.

[fn1] O.C.G.A. § 9-11-56 (c); see Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 S.E.2d 684) (1997).

[fn2] Matjoulis, supra, 226 Ga. App. at 459 (1).

[fn3] (Citations and punctuation omitted; emphasis supplied.) Carver v. Kinnett, 209 Ga. App. 577, 579 (1) (434 S.E.2d 136) (1993), quoting Wilkins v. Beverly, 124 Ga. App. 842 (186 S.E.2d 436) (1971).

[fn4] (Citations and punctuation omitted.) John Hewell Trucking Co. v. Brock, 239 Ga. App. 862, 864 (522 S.E.2d 270) (1999).

[fn5] Carver, supra, 209 Ga. App. at 579 (1) (a witness may give his opinion if he testifies to the facts on which that opinion is based, and the trier of fact is not necessarily bound by such opinion testimony but may arrive at a different conclusion based upon the evidence).

[fn6] O.C.G.A. § 51-1-2.

[fn7] Marlow deposed that the cross-fence gate was not secured with a lock.

ANDREWS, Presiding Judge, dissenting.
Because I agree with the trial court's conclusion that Marlow was entitled to summary judgment because nothing but guesses and speculation were posited by plaintiff Johns in opposition to Marlow's motion for summary judgment, I respectfully dissent.
To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991).
Where the inference of negligence allowed by the fact that Bones was in the road when struck by Johns is refuted by the concrete explanation provided by Marlow of the construction, maintenance and inspection of his fence, Johns was required to come forward with some evidence of negligence by Marlow, besides Marlow's speculation regarding how Bones ended up in the road, in order to defeat Marlow's motion for summary judgment.
As stated in Porier v. Spivey, 97 Ga. App. 209, 211-212 (102 S.E.2d 706) (1958), there arises a permissible inference authorized prima facie by the mere fact of the running at large by the animal that the owner of the livestock was negligent in allowing the stock to run at large or stray, but when the owner introduces evidence which would authorize a finding that he had exercised ordinary care in the maintenance of the stock, that permissible inference disappears.

(Emphasis supplied.)

In addition to the facts stated by the majority, the following facts are pertinent to consideration of the motion.
The fences around Marlow's pastures, which he constructed to contain his horses, consisted of four by four inch corner posts which had been concreted into the ground. The remaining posts were three by five inches, planted two feet into the ground and packed with rocks and dirt. The railings on the fences were one inch by four inch boards and four were installed between each post with eight penny spiral siding nails. Because the original boards were not pressure treated lumber, Marlow replaced them with pressure treated lumber in 1996, the year before Johns' accident. The outer perimeter of the fences was topped with an electrified wire, which was monitored from an electric indicator panel in the tack room. The electrical wire was working on October 23, 1997. An internal cross-fence with a gate and latch separated Marlow's two pastures.
Marlow purchased Bones, a gentle 12 to 15-year-old saddle horse, approximately six to eight weeks before the accident. Marlow had two other horses which he had owned for six years. Upon first getting Bones, Marlow had enclosed him in the same pasture with the other two horses, which exhibited "normal horse behavior, running, kicking, trying to establish which one is going to be the boss." Because one of the other horses had kicked at Bones and because horses can injure each other while adapting to one another, Marlow separated Bones from the other two, placing him in an adjacent pasture separated from the others by the cross-fence with a gate and metal latch. Marlow had previously owned lots of horses and had never had any that did not eventually get along.
Bones had stayed within his enclosure and the other two within theirs and the cross-fence gate had remained closed "for some time with no problem. . . ." Prior to this incident, none of Marlow's horses had opened the gate between the two pastures or escaped from his enclosures, although Marlow acknowledged that "some" horses could open gates. Marlow did not know of any instances of horses pushing other horses through fences before October 23. Prior to October 23, 1997, neither of the other horses had gotten over or through the cross-fence and gate into Bones' pasture.
The morning after Johns' crash into Bones,[fn1] Marlow found the gate connecting the two pastures open, the other two horses in Bones' pasture, and the rails pushed off the corner post. The rails were not damaged and Marlow nailed them back to the post after the accident. While, based on finding these horses in Bones' pasture with the gate open and the rails pushed off the fence, Marlow expressed his assumption (or "surmised," as the majority states) that the other horses had opened the latch on the cross-fence and entered Bones' pasture, chasing him and causing him to push the railings off the fence, that alone is insufficient to preclude summary judgment in his favor on the record before us.
This case, I believe, is controlled by John Hewell Trucking Co. v. Brock, 239 Ga. App. 862 (522 S.E.2d 270) (1999), which, as acknowledged by the majority, recognizes that an inference based on impermissible speculation will not overcome direct, competent evidence of ordinary care to prevent summary judgment. Impermissible speculation is all that is presented here by Johns.
There is no evidence in the record indicating that, as constructed, Marlow's fence did not comply with local custom, industry practice, or any other standard applicable to fencing horses. Compare Carver v. Kinnett, 209 Ga. App. 577, 579 (1) (434 S.E.2d 136) (1993) (Opinion testimony that fence was inadequate, based on height, loose mesh, and mesh not meeting barbed wire, provided facts which created jury issue). As stated in Carver, "[t]here was evidence of [the owners'] negligence in maintaining their fences other than the mere fact that the cows strayed in the road." Id. at 579-580. See also Wilkins v. Beverly, 124 Ga. App. 842 (186 S.E.2d 436) (1971) (Fence, as built, was not high enough to prevent the livestock from jumping it).
Marlow's own speculation and guess about the chain of events resulting in Bones' presence in the road does not conflict in any way with the concrete evidence regarding the construction of his fence and his use of ordinary care. As he stated, "I feel like I did everything within reason that I could do. You learn every day. Hindsight is 20/20. But at that time[,] I felt that I had my horses confined, secured, had done everything within reason to take care of them."
Summary judgment to Marlow, in my opinion, was appropriate. John Hewell Trucking Co., supra; see Taylor v. Thompkins, 242 Ga. App. 789, 791 (531 S.E.2d 360) (2000).

[fn1] Because of his injuries, Bones was shot by Marlow after the accident.

POUNCEY v. ADAMS, 206 Ga. App. 126 (1992)

424 S.E.2d 376

POUNCEY v. ADAMS.

A92A1364.

Court of Appeals of Georgia.

DECIDED NOVEMBER 2, 1992.

BIRDSONG, Presiding Judge.

Appellant/plaintiff Janice Pouncey appeals from the judgment entered against her and in favor of appellee/defendant Ross W. Adams. Appellant brought suit seeking damages for injuries sustained when the automobile in which she was a passenger struck appellee's horse. The horse had escaped from its enclosed pasture, crossed a public highway, and was struck by the automobile in which appellant was riding. Held:
1. Appellant asserts the trial court erred in admitting evidence, over objection on the grounds of lack of relevance and violation of the collateral source rule, that appellant took sick leave from her employment to avoid wage loss. Pretermitting this issue is the issue whether any such error would have been prejudicial had it occurred as enumerated. Appellant did not pose any specific foundation objection as to the use of the statement in her deposition for impeachment purposes, or specifically object to impeachment on any other ground. Therefore, these objections are waived. See Gully v. Glover, 190 Ga. App. 238 (4) (378 S.E.2d 411).
The verdict rendered in this case was in favor of the appellee/defendant; this is not a case where verdict was rendered for appellant/plaintiff and the damage award was either zero or of some inadequate amount. The evidence pertaining to the use of sick leave either was relevant to the issue of impeachment or it was not. Assuming without deciding that the admitted evidence was relevant, albeit doubtful, as to the question of impeachment (as argued by appellee), the trial court would not have abused its discretion in admitting it (see generally Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (2) (377 S.E.2d 15)), and no error occurred. West v. Nodvin, 196 Ga. App. 825, 828 (3b) (397 S.E.2d 567). It is well established that if evidence is duly admissible under any legitimate evidentiary theory, it should be admitted even though it would not qualify for admission under one or more other evidentiary theories. Boatright v. State, 192 Ga. App. 112, 116 (6) (385 S.E.2d 298). In such circumstances, the objecting party's remedy is to seek appropriate limiting instructions as to the evidence in question. Assuming, however, the evidence pertained only to the issue of damages and was admitted in violation of the collateral source rule (as argued by appellant), then the error occurring nevertheless would be harmless in this instance. Where an error in the giving of a charge or in the admission or exclusion of evidence relates only to the issue of damages, and the jury finds the defendant not liable, the error is harmless because it does not affect the verdict. Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 S.E.2d 510); accord Barnes v. Wall, 201 Ga. App. 228, 230 (3) (411 S.E.2d 270).
2. Appellant asserts the trial court erred in charging the jury on the issue of permissible inference. Appellant took exception to the charge on the grounds it is an incorrect statement of law and that it was confusing and misleading to the jury. Assuming without deciding that this broad exception, which is lacking of any specificity as to why the charge was legally incorrect, confusing or misleading, is adequate to preserve the issue of charging error on appeal, we find that, assuming charging error occurred, it was harmless in this case.
The trial court charged the jury pertinently as follows: "The duty placed upon [a livestock] owner by law is to exercise ordinary care to keep his livestock from straying or running at large beyond the limits of the owner's property. In cases where a person is injured or damaged by livestock straying or running at large there arises a permissible inference authorized by the mere fact of the running at large by the animal that the owner of the livestock was negligent in allowing the stock to run at large or to stray. But when the owner introduces evidence which would authorize a finding that he had exercised ordinary care in the maintenance of the stock, that permissible inference disappears. It is thus for you, the jury, to determine whether or not the [appellee/defendant] has introduced sufficient evidence to overcome the permissible inference of negligence. If you find that he has not, you would be authorized to return a verdict in favor of the [appellant/plaintiff]. If you find on the other hand that he has, you would be obligated to return a verdict in favor of [appellee/defendant] unless you have found . . . the [appellee/defendant] otherwise negligent in such a way as to proximately cause injuries to the [appellant/plaintiff]." (Emphasis supplied.) Thereafter, the trial court instructed the jury that the burden of proving each element of the claim was on appellant/plaintiff.
In support of this enumeration appellant relies primarily upon the language contained in Miller v. Miller, 258 Ga. 168, 170, n. 6 (366 S.E.2d 682) and cases cited therein. She argues that she was harmed when the jury was instructed that the permissible inference would disappear when rebutted, and in charging on permissible inference rather than on the law of presumptions.
Appellee asserts that the permissible inference would in fact disappear if rebutted. This contention is tacitly supported by the seminal case of Porier v. Spivey, 97 Ga. App. 209 (1c) (102 S.E.2d 706) and its progeny, although all of these cases precede Miller, supra, and none of them concerns the question of what constitutes a correct charge to the jury regarding this issue. Accord Nichols v. Frey, 185 Ga. App. 829 (366 S.E.2d 212); Wilkins v. Beverly, 124 Ga. App. 842 (186 S.E.2d 436); L & N R. Co. v. Moreland, 122 Ga. App. 850, 854 (1) (178 S.E.2d 904); Green v. Heard Milling Co., 119 Ga. App. 116 (1) (166 S.E.2d 408).
We have frequently cautioned that, although the language used in an appellate decision may embody sound law, it is not always appropriate to employ such language in instructing the jury. Griffin v. State, 154 Ga. App. 261, 263 (2) (267 S.E.2d 867). Nevertheless, in determining whether an instructional error has occurred, charges must be examined in their entirety. See generally Jordan v. Santa Fe Engineering, 198 Ga. App. 600, 602 (2a) (402 S.E.2d 304).
We find no merit in the argument that reversible error occurred when the trial court charged the jury in language of permissive inference rather than presumption of fact. Presumptions of fact are exclusively questions for the jury to decide by the ordinary test of human experience. OCGA § 24-4-20. Likewise, in arriving at a verdict, the jury from facts proved (in this instance from proof of the mere fact of the running at large of the animal beyond the owner's property, such conduct being contrary to the duty established by OCGA § 4-3-3), may infer the existence of other facts reasonably and logically consequent on those proved (that the owner of the livestock was negligent in allowing his animals to so run at large or to stray). OCGA § 24-4-9. Presumptive evidence is statutorily defined as "evidence which consists of inferences drawn by human experience from the connection of cause and effect and from observations of human conduct." (Emphasis supplied.) OCGA § 24-1-1 (6). Thus, a thin line exists at best between a permissible inference of fact and a rebuttable presumption of fact; and, as one writer has said, "a presumption of fact is an inference drawn from a given fact or set of facts." Green, Ga. Law of Evid., Presumptions, § 23. Appellant states that the real difference between a presumption of fact and an inference is in the way they are treated by the judge and jury; if it is a presumption, the judge may handle the case procedurally, but if it is an inference, it must be left to the jury. We are satisfied that based on the way this instruction was crafted, the factual principle concerned was properly labelled as a "permissible inference," and not as a rebuttable presumption. See Nichols, supra at 830. Assuming, however, it could have been labelled as a rebuttable presumption of fact, we find no error. The judge did not attempt to dispose of this matter as a presumption of law, but rather placed the issue in the hands of the jury. "Whether the charge is fashioned in the language of `inferences' or `presumptions,' the technical import of the charge is the same." Byrd v. Hopper, 234 Ga. 248, 251 (215 S.E.2d 251). This is especially true when the language charged is that of a "permissible inference" and the factual predicate for the permissible inference is clearly set forth to the jury, as was done in this case, so no fair risk exists that the jury could view the charge as pertaining to a presumption of law. Id.
The charge at issue is not so confusing or uncertain that any fair risk exists that the jury was misled thereby. "`It is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. (Cit.) While the specific portion(s) of the charge of which complaint is made, when torn asunder and considered as a disjointed fragment, may be objectionable, when put together and considered as a whole, the charge is perfectly sound.'" Cochran v. State, 190 Ga. App. 884, 886 (5) (380 S.E.2d 319). Contrary to the tacit assertion of appellant, the jury was not instructed in this case that the permissible inference would disappear automatically when evidence was "offered" to rebut the inference. Rather, examining the charge in its entirety reveals that the jury was adequately informed that the inference would not disappear unless and until they determined that appellee/defendant had introduced "sufficient evidence to overcome the permissible inference of negligence." Accordingly, the permissible inference was not removed from the jury's consideration by the trial judge as implicitly contended by appellant.
We further find that appellant's contention that the jury must be instructed regarding presumptions is, under Miller, supra, without merit. First, appellant has failed to enumerate as error that the trial court erred in failing to charge the court on the law of presumptions as requested at trial. Accordingly, this issue has not been preserved for appellate review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (367 S.E.2d 272). Secondly, appellant has failed to address in her appellate brief exactly what tailored instruction should have been given in accordance with the so-called Miller rule, and we will not search the record in an attempt to determine what portion of the Miller rule would have warranted such a charge.
Any remaining deficiencies as to this charge to which no citation of authority was provided or express argument made in support thereof in appellant's brief are deemed to be abandoned. Court of Appeals Rule 15 (c) (2); Boatright v. State, supra at 119 (10).

Judgment affirmed. Beasley and Andrews, JJ., concur.

4-3-3. No owner shall permit livestock to run at large on or to stray upon....

No 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.


Please see the information at the following links:

http://definitions.uslegal.com/n/negligence/
http://definitions.uslegal.com/c/comparative-negligence/
http://definitions.uslegal.com/c/contributory-negligence/
http://definitions.uslegal.com/l/livestock/
http://definitions.uslegal.com/s/strays/
http://definitions.uslegal.com/p/proximate-cause/
http://definitions.uslegal.com/c/civil-procedure-counterclaims/

Please see the forms at the following links:

http://www.uslegalforms.com/us/US-0083-WG.htm
http://www.uslegalforms.com/ga/GA-EB701.htm

03/05/2009 - Category: Animals - State: GA #15459

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