Michele Fahey v. Kolcun Tree Care, LLC, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14319
Non-Argument Calendar
____________________
MICHELE FAHEY,
Plaintiff-Appellant,
versus
KOLCUN TREE CARE, LLC,
JOHN DOES NOS. 1-10,
Defendant-Appellee,
JOHN DOES NOS. 1-10,
Defendants.
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2 Opinion of the Court 22-14319
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:21-cv-00004-RSB-CLR
____________________
Before GRANT, LAGOA, and B RASHER , Circuit Judges.
PER CURIAM:
A horse-drawn carriage ride in early Spring through the
heart of Savannah, Georgia requires us to determine the scope of
liability immunity under Georgia’s Injuries from Equine, Live-
stock, and Llama Activities Act, Ga. Code Ann. § 4-12-3(a) (2018).
Under the Act, “an equine activity sponsor, an equine professional,
a livestock activity sponsor, a livestock professional, an owner of a
livestock facility, a llama activity sponsor, a llama professional,
or
any other person, which shall include a corporation or partnership”
is immune from liability for injuries to a participant in an equine,
livestock, or llama activity caused by the inherent risks of animal
activities.
Id. (emphasis added). We must decide whether a tree ser-
vices company qualifies as an “any other person” immune from li-
ability under the Act. Georgia’s longstanding rules of statutory in-
terpretation dictate that it does not. Accordingly, we reverse.
I.
Michele Fahey was conducting a horse-drawn carriage tour
in downtown Savannah, Georgia. During the ride, Fahey took the
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22-14319 Opinion of the Court 3
tourists past a tree trimming crew employed by Kolcun Tree Care,
LLC, a tree services company. The crew was pruning crepe myrtles
in Savannah’s historic Columbia Square, using a noisy woodchip-
per to remove trimmed branches from the jobsite. The noise star-
tled Fahey’s horse, causing it to bolt. Fahey lost control of the car-
riage, which crashed into a curb, flipped over, and injured Fahey.
Fahey sued Kolcun, alleging that her injuries were caused by
Kolcun’s negligent training and supervision of its employees. Kol-
cun moved for summary judgment, arguing that it was an “any
other person” immune from liability under Georgia’s Injuries from
Equine, Livestock, and Llama Activities Act, § 4-12-3(a). The dis-
trict court agreed and granted summary judgment for Kolcun.
Splitting the phrase “any other person” into its component words,
the court determined that the definitions of “any,” “other,” and
“person,” put together, “unquestionably” includes Kolcun. And be-
cause that phrase is unambiguous in isolation, the court believed it
unnecessary to consult the greater statutory context to determine
its reach.
Fahey appealed. She argues that, when read in its proper
context, “any other person” under Section 4-12-3(a) limits immun-
ity to persons engaged in equine, livestock, or llama activities and
thus does not apply to tree services companies like Kolcun.
II.
We review a district court’s grant of summary judgment
de
novo.
Cowen v. Ga. Sec’y of State, 960 F.3d 1339, 1341 (11th Cir.
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4 Opinion of the Court 22-14319
2020). Summary judgment is warranted where, viewing the evi-
dence in the light most favorable the non-moving party,
id. at 1342,
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).
Georgia’s substantive law governs our interpretation of Sec-
tion 4-12-3(a) in this diversity suit.
Grange Mut. Cas. Co. v.
Woodard, 826 F.3d 1289, 1295 (11th Cir. 2016);
see also Dowis v.
Mud Slingers, Inc., 621 S.E.2d 413, 414 (Ga. 2005) (holding that, un-
der Georgia choice-of-law rules, “a tort action is governed by the
substantive law of the state where the tort was committed.”). “We
decide novel questions of state law ‘the way it appears the state’s
highest court would.’”
Freeman v. First Union Nat’l, 329 F.3d 1231,
1232 (11th Cir. 2003) (quoting
Ernie Haire Ford, Inc. v. Ford Motor
Co., 260 F.3d 1285, 1290 (11th Cir. 2001)). In predicting how the
Supreme Court of Georgia would interpret a statute, we may “ex-
amine Georgia’s canons of statutory construction.”
See Grange,
826 F.3d at 1300.
III.
Section 4-12-3(a) of Georgia’s Injuries from Equine, Live-
stock, or Llama Activities Act provides liability immunity to “an
equine activity sponsor, an equine professional, a livestock activity
sponsor, a livestock professional, an owner of a livestock facility, a
llama activity sponsor, a llama professional, or any other person,
which shall include a corporation or partnership” for injuries to a
“participant” in an equine, livestock, or llama activity “resulting
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22-14319 Opinion of the Court 5
from the inherent risks of animal activities.” Ga. Code Ann. § 4-12-
3(a) (West). For the purposes of this appeal, the parties agree that
Fahey was a “participant” engaged in an equine activity at the time
of the carriage accident; that Fahey’s injury resulted from “the in-
herent risks of animal activities”; and that Kolcun, a tree services
company, was not “an equine activity sponsor,” “equine profes-
sional,” “livestock activity sponsor,” “livestock professional,”
“owner of a livestock facility,” “llama activity sponsor,” or “llama
professional” under the statute. They dispute only whether Kolcun
falls within the meaning of “any other person” under Section 4-12-
3(a). We hold that it does not.
When interpreting a statute, Georgia courts “start with the
statutory text itself” and afford it “its plain and ordinary meaning.”
Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, 862 S.E.2d
295, 298 (Ga. 2021). Kolcun argues that “read in isolation,” the or-
dinary meaning of the phrase “any other person” in Section 4-12-
3(a) unambiguously includes Kolcun, a tree services company.
But Georgia courts “consider text in context, not in isola-
tion.”
Elliott v. State, 824 S.E.2d 265, 272 (Ga. 2019). Indeed, “even
if words are apparently plain in meaning, they must not be read in
isolation and instead, must be read in the context of the [statute] as
a whole.”
Upper Chattahoochee Riverkeeper, Inc. v. Forsyth
County, 734 S.E.2d 242, 245 (Ga. Ct. App. 2012). When consulting
context, “we may look to other provisions of the same statute, the
structure and history of the whole statute, and the other law . . .
that forms the legal background of the statutory provision in
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6 Opinion of the Court 22-14319
question.”
In the Interest of T.B., 874 S.E.2d 101, 105 (Ga. 2022)
(quoting
In the Interest of K.S., 814 S.E.2d 324, 325 (Ga. 2018)).
Three textual and contextual markers convince us that the
phrase “any other person” in Section 4-12-3(a) does not include a
tree services company.
First, the Act’s text is a literal textbook case for the appropri-
ate application of the interpretive canon
ejusdem generis.
See An-
tonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation
of Legal Texts 201–02 (2012) (discussing with approval decision ap-
plying
ejusdem generis to South Dakota’s Equine Activities Act
(citing
Nielson v. AT&T Corp., 597 N.W.2d 434 (S.D. 1999))). Un-
der that longstanding rule, “where words particularly designating
specific acts or things are followed by . . . words of general import,
comprehensively designating acts or things, the latter are generally
to be regarded as comprehending only matters of the same kind or
class as those particularly stated.”
Fleming v. City of Rome, 61 S.E.
5, 6 (Ga. 1908);
accord, e.g.,
Kinslow v. State, 860 S.E.2d 444, 449
(Ga. 2021).
Here, the catchall phrase “any other person” follows a list of
seven specific persons to whom the statute extends immunity: “an
equine activity sponsor, an equine professional, a livestock activity
sponsor, a livestock professional, an owner of a livestock facility, a
llama activity sponsor, [and] a llama professional.” § 4-12-3(a). And
these enumerated persons share a characteristic: they each have an
affiliation with equine, livestock, or llama activities.
See Ga. Code
Ann. § 4-12-2 (2017) (defining each specified person). Thus,
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22-14319 Opinion of the Court 7
ejusdem generis instructs us to interpret the general phrase “any
other person” as being limited to persons who also are affiliated
with equine, livestock, or llama activities.
see Standard Oil Co. v.
Swanson, 49 S.E. 262, 263 (Ga. 1904) (“Where a statute . . . enumer-
ates several classes of persons or things, and immediately follow-
ing, . . . embraces ‘other’ persons or things, the word ‘other’ will
generally be read as ‘other such like’ . . . .”). Kolcun, a tree care
company, has no such affiliation.
Cf. Latham v. Stewart, 78 S.E.
812, 812–813 (Ga. 1913) (statute imposing tax on sales “of any . . .
medicines, . . . or appliances of any kind, . . . or jewelry, or station-
ery, . . . or soap, or
any other kind of merchandise or commodity
whatsoever (whether herein enumerated or not),” does not apply
to sales of chicken, eggs, or butter, which, being food products,
“are of a different nature altogether” (emphasis added)).
Second, were we to read “any other person” to include eve-
ryone—equine related or otherwise—the preceding list of specific
persons would become redundant. And “it is well settled that in
interpreting statutory text, ‘courts generally should avoid a con-
struction that makes some language mere surplusage.’”
Camden
County v. Sweatt, 883 S.E.2d 827, 837 (Ga. 2023) (quoting
Middle-
ton v. State, 846 S.E.2d 73, 79 (Ga. 2020)). If the legislature had
wished to extend immunity to
any person, it could have simply said
“any person” rather than setting forth a detailed list and then ren-
dering it meaningless by the concluding phrase “any other person.”
See Latham, 78 S.E. at 813; Scalia & Garner,
supra, at 200.
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Third, the Act’s codified statement of intent in Section 4-12-
1 buttresses our conclusion that Section 4-12-3(a)’s protective scope
does not include persons with no relation to equine, livestock, or
llama activities.
See Ga. Code Ann. § 4-12-1 (2017). Section 4-12-1
states that “the intent of the General Assembly [is] to encourage
equine activities, livestock activities, and llama activities by limit-
ing the civil liability of those involved in such activities.” Under
Georgia law, this enacted preamble is a relevant indicator of mean-
ing.
See City of Marietta v. Summerour, 807 S.E.2d 324, 330 n.3
(Ga. 2017);
see also Harrison v. McAfee, 788 S.E.2d 872, 877 n.5
(Ga. Ct. App. 2016) (“When the General Assembly codifies its in-
tent for a comprehensive statutory scheme, that codified preamble
becomes part of the statutory context in which we read individual
passages.”). The legislature’s formal declaration of intent to excuse
from liability “those involved” in “equine activities, livestock activ-
ities, and llama activities” supports our conclusion that the “any
other person” afforded immunity under 4-12-3(a) must be a person
affiliated with such activities.
See Holcomb v. Long, 765 S.E.2d 687,
691 (Ga. Ct. App. 2014) (avoiding interpretation of § 4-12-3 that
“would run afoul of the General Assembly’s expressed desire [in
§ 4-12-1] of creating broad immunity
for equine professionals en-
gaging in equine activities” (emphasis added)).
In short, reading “the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English language
would,”
Deal v. Coleman, 751 S.E.2d 337, 341 (Ga. 2013), we
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conclude that Kolcun is not immune from liability under Section 4-
12-3(a).
IV.
The district court’s judgment is REVERSED, and this matter
is REMANDED for proceedings consistent with this opinion.
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