Kilpatrick v. Foster

• Decision Date: 04 December 1987
• Docket Number: No. 75199,75199
• Parties: KILPATRICK v. FOSTER et al.
• Court: Georgia Court of Appeals

Page 588

364 S.E.2d 588

185 Ga.App. 453

KILPATRICK v. FOSTER et al.

No. 75199.

Court of Appeals of Georgia.

Dec. 4, 1987.

Rehearings Denied Jan. 4, 1988.

Certiorari Denied Feb. 5, 1988.

Robert E. Shields, Alan R. Perry, Jr., Atlanta, for appellant.

Thomas D. Harper, John F. Daugherty, Robert J. McCune, Atlanta, for appellees.

BANKE, Presiding Judge.

The appellant sued the appellees to recover for personal injuries which she sustained when an automobile she was driving was struck head-on by an automobile being driven by one Ted McAdams. McAdams died as a result of the accident, and any liability he may have generated as the immediate result of his conduct in the matter is not at issue in this litigation. At the time the collision occurred, McAdams was traveling north on Holly Springs Road in Cobb County, driving a red Corvette. Immediately in front of him, traveling in the same direction and driving a turbocharged Datsun 280 ZX, was appellee Thomas S. Foster; while immediately behind McAdams, traveling in the same direction and driving a beige or cream-colored Corvette, was appellee James W. Weber. The collision occurred when, for reasons which are not entirely clear, McAdams' Corvette crossed over the centerline into the path of the appellant's vehicle, which was proceeding south on Holly Springs Road in its appropriate lane of traffic.

The appellant sought to hold Foster and Weber liable for her injuries on the theory that they had been "racing" with McAdams when the collision occurred, in violation of OCGA § 40-6-186, or had otherwise been participating with him in some form of concerted activity involving the operation of their respective vehicles in a negligent and unlawful manner. At the conclusion of a lengthy trial, the jury returned a verdict in favor of the appellees. The appellant filed this appeal from the denial of her motion for new trial. Held:

1. The appellant contends that the trial court erroneously charged the jury that the only form of "negligent concerted activity" for which the appellees could be held liable was that of unlawful "racing." The appellant had requested an instruction that either of the appellees could be held liable for her injuries based on a determination "that there was negligent concerted activity between that [APPELLEE] and Mr. McAdams in the driving of their vehicles on Holly Springs Road" and based on a further determination "that that [appellee] committed a negligent act in pursuit of the negligent concerted activity and pursuant to a common design with Mr. McAdams." (The proximate cause requirement was covered in a separate request to charge filed by the appellant.)

An examination of the charge given by the court reveals that, although the court did in fact instruct the jury on more than one occasion that the appellees could be held liable for the appellant's injuries based on a finding that they had engaged in unlawful activity "in joint concert" with McAdams or in pursuit of a "common design" with him, such terminology was, in each instance, employed with reference to the specific activity of racing. We must consequently agree with the appellant that the charge given by the court would not have authorized an assessment of damages against the appellees based on a finding that they had been involved in any form of joint conduct or concerted activity with McAdams other than racing.

At the conclusion of the court's charge, the appellant interposed the following objection: "[W]e object to all statements ... throughout the charge which have limited our case to one called racing. We continue to believe that speeding alone, reckless driving alone, illegal passing alone, could be a basis for concerted action ... and that had there been active encouragement of the other vehicles by speeding or by illegal passing, that would form a basis for one being liable for the act of another." This objection was clearly adequate to preserve the alleged defect for appellate review. See generally Christiansen v. Robertson, 237 Ga. 711, 712, 229 S.E.2d 472 (1976).

Subsequent to the trial of the present action, this court held, in Bellamy v. Edwards, 181 Ga.App. 887(1), 888, 354 S.E.2d 434 (1987), that "[a] 'common enterprise' to drive two cars in tandem at excessive speeds and in a reckless manner is as much a tacit 'unlawful joint enterprise' to violate the traffic laws of this state as an agreement to engage in 'racing.' " In reaching this conclusion, we cited with approval a Wisconsin Supreme Court decision holding that " 'when there is an understanding to reach a common destination and in doing so illegal speed is used and the cars are driven so closely together as to be practically in tandem, or to constitute a unit, ... we have a situation of mutual stimulation where the negligence of each participant is so related to the negligence of the other participants that the participants should each be chargeable with the causal negligence of the other as to speed....' Ogle v. Avina , 146 NW2d 422, 427 (Wis.1966)." Id.

The appellees contend that our holding in Bellamy v. Edwards, supra, should not be given retroactive effect. We disagree. "In Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 S.E.2d 673) (1983), the [Georgia Supreme Court] Adopted the test set forth in Chevron Oil Co. v. Huson, 404 U.S. 97 [92 SC 349, 30 LE2d 296) (1971) ], and held that in deciding whether a decision should be applied retroactively the court should: '(1) Consider whether the decision ... established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance of the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of non-retroactivity.' " Federated Mut. Ins. Co. v. DeKalb County, 176 Ga.App. 70, 72, 335 S.E.2d 873 (1985), aff'd 255 Ga. 522, 341 S.E.2d 3 (1986).

We can discern no basis for limiting the Bellamy decision to prospective application based on the foregoing considerations. No past precedent was overruled by the decision, and it should certainly come as no legitimate surprise to motorists utilizing the public roadways of this state that if they choose to participate with other motorists in the "unlawful joint enterprise" of driving their vehicles in tandem at high speeds or in a reckless manner, they may be held liable for injuries to innocent motorists proximately resulting from such conduct. By the same token, any inequity which might result from our giving the holding in Bellamy retroactive application quite obviously pales beside the inequity which might result to innocent motorists if we failed to do so. Thus, we have no hesitancy in concluding that the theory of liability announced in Bellamy is fully applicable to the present case.

That the evidence in the present case warranted a Bellamy charge is beyond question. It was established without dispute that McAdams and the two appellees were close friends; that, after meeting at their neighborhood swimming pool on the morning of the day the collision occurred, they had driven simultaneously but in their separate vehicles to a bar-restaurant called "The Fox's Den" to eat lunch and drink beer; and that, when the collision occurred, they were in the process of returning home in their separate vehicles. There was additional evidence from which the jury could have found that immediately prior to the collision the three men were driving in close formation at speeds in excess of 70 miles per hour. The jury would clearly have been authorized to conclude from this evidence that, even if the men were not "racing" as such, they were driving in tandem at excessive speeds and in a reckless manner. Accordingly, the trial court's failure to instruct the jury that the appellees could be held liable for any injuries suffered by the appellant as the proximate result of such activity must be deemed reversible error.

2. The appellant asserts that the trial court further erred in refusing to allow two lay witnesses and one expert witness to offer opinion testimony to the effect that the appellees and McAdams had in fact been "racing" immediately prior to the collision. However, we agree with the trial court that such testimony would have invaded the province of the jury with respect to one of the key issues being tried. From the observations made by these and other witnesses, the jurors were fully capable of drawing their own conclusions with respect to whether the appellees had been engaged in unlawful "racing" within the contemplation of OCGA § 40-6-186. "Where the jury are as competent as a witness to draw conclusions from facts testified, the opinion of a witness is inadmissible." McGahee v. Phillips, 211 Ga. 118, 120-121, 84 S.E.2d 19 (1954). Accord Barnes v. Thomas, 72 Ga.App. 827(5), 835-837, 35 S.E.2d 364 (1945). This rule applies regardless of whether the witness is a lay person or an expert. See Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678 (1981); Walker v. Bishop, 169 Ga.App. 236, 240-241, 312 S.E.2d 349 (1983).

3. The appellant contends that the trial court improperly excluded testimony that one of the lay witnesses referred to in Division 2, supra, had exclaimed to her husband upon observing the three "sports cars" accelerating on Holly Springs Road shortly before the collision, ...