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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.
Court of Appeals of Georgia.
DECIDED: OCTOBER 17, 2001
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
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
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
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
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
Judgment reversed. Blackburn, C.J., Johnson, P.J., Ruffin,
Eldridge, Barnes, and Ellington, JJ., concur. Andrews, P.J.,
[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)
[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
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.
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
POUNCEY v. ADAMS, 206 Ga. App. 126 (1992)
424 S.E.2d 376
POUNCEY v. ADAMS.
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
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
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
Judgment affirmed. Beasley and Andrews, JJ., concur.
4-3-3. No owner shall permit livestock to run at large on or to stray
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