Sunday, April 3, 2011

Georgia Court of Appeals upholds immunity for landowner conducted controlled burn

The Georgia Court of Appeals recently decided two cases addressing liability for agricultural operations.  In the first, the court held that a landowner who followed the advice of a forest ranger and obtained the advice of the forestry service was not liable for the death of a motorist who was killed because of reduced roadway visibility resulting from the burn.  In the second, the Court of Appeals held for the first time that aerial application of chemicals, or “cropdusting,” is an inherently dangerous activity, and therefore a landowner can be liable for the acts of an independent contractor doing work on the landowner's land.  The first case is discussed below, and the second will be summarized in a subsequent post.

Immunity upheld for prescribed burn of farmland
Morgan v. Horton, Case no. A10A1914 (March 4, 2011)
Appeal from the Superior Court of Brantley County

Ronnie Horton was killed on December 6, 2001, after his vehicle collided with a tractor trailer in rural Georgia.  The collision was a result, according to Horton's estate, or reduced roadway visibility caused by a nearby landowner, Morgan's, prescribed burn, or “burning off,” of a field.  The question addressed by the court was whether Morgan was entitled to immunity from liability caused by the burn because of a statute, O.C.G.A. § 12-6-148, that purports to limit a landowner's liability to third-parties.

Prior to undertaking the burn, Morgan, who had no experience with prescribed burns, contacted the forestry service for advice on the project and to obtain a permit for the burn.  The forest ranger, who had over 30 years experience with prescribed burns, instructed Morgan on how to properly divide the field into separate sections and to place firebreaks.  On the morning of December 4, the weather conditions appeared ideal and the ranger and Morgan began the burn, after obtaining the required permit.

By December 5, although small spots of brush continued to smolder, the fire was mostly burned out.  The ranger and Morgan continued to monitor the field throughout the day, and the state patrol told them that it would continue to monitor the visibility and inform the Department of Transportation if roadway visibility changed so that it could put out warning signs.

That night, conditions changed, and residual smoke began to hover in the area.  Between 6:00 and 7:30 am, the remaining smoke combined with fog and severely reduced the visibility on a roadway adjoining Morgan's land.  A truck driver traveling through the area stopped his vehicle because off the low visibility, and shortly thereafter, it was hit by Horton's truck, resulting in Horton's death.

Georgia law provides that

   (a) 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;
   (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.
(b) No property owner or owner's agent conducting an authorized prescribed burn under this part shall be liable 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.

Horton's estate argued that the immunity created by O.C.G.A. § 12-6-148 (b) was not applicable on several grounds.  First, it argued that since Morgan had never conducted a prescribed burn before, he was not entitled to the statute's protections under subsection (a)(1).  The court rejected this argument since the evidence showed that the forest ranger was actually in charge of the burn.  The court also held that this subsection contained no requirement that the ranger be on site for the entire time of the burn.   Second, the estate argued that because the fire continued to burn after the expiration of the permit, Morgan would have been required to obtain a new permit in order to claim the protections of the statute.  Once again, the court held that the statute did not contain such a requirement, and therefore found that subsection (b) was applicable to the case.

Although the court found that the statute applied, the estate also argued that the immunity provision was not absolute and did not apply where the defendant was was grossly negligent.  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.” (Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 707 (2005).

The court agreed that Morgan could be subject to liability if the estate could prove that he was grossly negligent, but found that the record did contain any evidence suggesting such a gross lack of care.  Morgan was not, for example, required to take precautions above and beyond those required by the forestry service, nor was he required to forgo the burn entirely and use more costly and less effective methods to clear his land.  As a result, the Court of Appeals ordered the trial court to enter summary judgment in favor of Morgan and against the estate.

Turkheimer & Hadden, LLC
Attorneys at Law
Trials and Appeals

(404) 890-7200

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