When is Summary Judgment Appropriate in a Georgia Civil Lawsuit?

When is Summary Judgment Appropriate in a Georgia Negligence Action?

Summary judgment is a final decision by a judge that resolves a lawsuit. A litigant is entitled to judgment when there’s no dispute about the facts. A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there’s no real issue to be tried. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.


In a recent action, the Plaintiff filed a negligence claim against a farm, alleging that she was injured and her truck was damaged when she collided with cows that had roamed onto the roadway through an open gate to a fenced area.

The farm maintained about 250 cows in fenced fields on its 1,500 acres of farm land. On the night in question, three cows got out of a fenced field and strayed onto a nearby unlit two-lane road.

At approximately 8:15 that night, the Plaintiff was driving her truck on the road when she encountered a van stopped in the roadway. She stopped briefly behind the van and then started to move around it. As she passed the van, she hit one of the cows and veered into a ditch. Another cow charged toward her vehicle, forcing her to pull back on to the road and again hit the cow that she had previously hit.

The farm moved for summary judgment, arguing that it wasn’t negligent and that its cows had escaped because a tree had unexpectedly fallen on the fence. The trial court granted the motion for summary judgment, and the Plaintiff appealed from that ruling.

Summary Judgment on a Negligence Claim

The Plaintiff argued that the trial court erred in granting summary judgment to the farm on her negligence claim.

Presiding Judge Christopher McFadden of the Georgia Court of Appeals wrote that summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law,” quoting Georgia Statute § 9-11-56(c).

In addition, Georgia Statute OCGA § 4-3-3 states:

“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.”

Judge McFadden explained that while the mere fact that livestock is running at large permits an inference that the owner is negligent in letting the cows stray, that permissible inference goes away when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock. 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 has been introduced, other facts would support a contrary inference.

The Testimony of the Parties

In moving for summary judgment, the farm relied on the affidavit of its owner, in which he testified to the following:

  • The area where the cows were kept was enclosed by barbed wire fencing that’s standard for keeping cattle;
  • The fencing has secure metal gates;
  • The fences were inspected, and the cows were fed on a regular basis;
  • On the morning of the incident, he’d fed the cows, and there was no damaged fencing or open gates;
  • He received a phone call after the incident and went to the scene where he observed that the gates at the road were closed; and
  • The next day he found a small area of damaged fencing not located by the highway but located on the other side of a field next to woods where a pine tree had fallen on the fence.

In response, the Plaintiff presented her affidavit in which she testified:

  • She frequently passes the farm property;
  • On at least three or four occasions prior to the accident she has witnessed cows outside their enclosure and wandering on the roadway;
  • She’s seen the gate to the enclosure open on numerous occasions before and after the accident; and
  • Cows straying outside the enclosure is an ongoing issue for the farm.

She also testified at her deposition that photographs taken after the accident showed an open gate to the fenced area, although the farm said the photos didn’t show a gate to the fenced area in question.

The farm owner also testified:

  • The fence gates aren’t kept locked;
  • His farmhand and visitors can open the gates; and
  • The gates are sometimes left open, although he claimed this only happens if cows aren’t in the area.

The farm owner’s deposition testimony also contradicted his affidavit statements that on the morning of the incident he’d inspected the scene, and the fence wasn’t damaged by the fallen pine tree at that time. He also said that he couldn’t give an exact time or date when he’d last seen that part of the fence before the incident, although he thought he’d been around that area about a week before and hadn’t seen a fallen tree. The property owner also acknowledged in his deposition that on the night of the incident he didn’t know how the cows had gotten out of the fenced area and that it was the next day when he figured that they’d escaped in the spot where the tree had fallen on the fence.

Judge McFadden and the Court held that contrary to the farm’s argument, the evidence didn’t demand judgment in its favor. The premise of the farm’s argument was that the evidence showed unequivocally that the cows escaped at the spot where a tree had fallen on the fence—which was an unforeseeable event. However, the judge noted that the evidence as to how the cows got out of the fenced area wasn’t unequivocal and, when construed in favor of the Plaintiff (as the nonmovant), didn’t mandate a finding that the cows escaped through the damaged fencing.

While the farm presented an affidavit providing circumstantial evidence to support its theory, there wasn’t any direct evidence establishing how the cows got out of the fenced area on the night in question. In fact, the farm owner testified that he couldn’t determine that night how the cows escaped the enclosure. And there was other circumstantial evidence, including the Plaintiff’s affidavit that supported the equally plausible notion that the cows strayed onto the road through an open gate as alleged in her complaint.

Under these circumstances, the question as to the sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, was a question for the jury. And because the record showed that there are genuine issues of material fact, the trial court’s order granting summary judgment to the farm on the negligence claim was reversed. Lavan v. Cannon Farms, Inc., 2022 Ga. App. LEXIS 253 *; 2022 WL 1656785 (Ga. App. May 25, 2022).

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