APAC-Georgia, Inc. v. Padgett, APAC-GEORGI

Decision Date28 November 1989
Docket NumberINC,APAC-GEORGI,No. A89A1242,A89A1242
Citation193 Ga.App. 706,388 S.E.2d 900
Partiesv. PADGETT.
CourtGeorgia Court of Appeals

Clark & Clark, Fred S. Clark, Savannah, Merryl S. Mandus, Paul Webb, Jr., Atlanta, for appellant.

James O. Wilson, Jr., Savannah, for appellee.

BEASLEY, Judge.

APAC appeals the judgment against it resulting from Padgett's accident at one of APAC's construction sites.

APAC had a contract with the Department of Transportation for widening and paving a portion of highway. The work required that one of the two lanes be closed at times. Padgett was driving a tractor trailer fully loaded with logs when he came over the crest of a hill going forty miles per hour. He was unable to stop when he saw the line of cars stopped for the construction. He steered his rig to the ditch and jumped, severely injuring his leg.

He sued APAC, contending that its employees had negligently controlled the traffic, allowing it to back up beyond the site warning signs and to the crest of the hill where it was invisible to traffic topping the hill.

APAC answered, claiming it was not negligent and the accident was caused by plaintiff's negligence.

On the morning of trial, APAC filed a Motion in Limine asserting that Padgett would attempt "to introduce evidence, make reference to, or to otherwise leave the jury with the impression that following the accident, the Defendant placed additional warning signs at a location further distant from the construction site, and/or performed additional safety measures." The court, after hearing argument, sustained the Motion in Limine "until it [the evidence of corrective measures] comes within the exception carved out in [Brooks v. Cellin Manufacturing Co., 251 Ga. 395 (306 SE2d 657) (1983) ]."

1. The first and second enumerations allege error in the court's later allowing evidence of additional signs placed before the crest of the hill and denial of two motions for mistrial by APAC as a result.

A development of the evidence is necessary for evaluation of this issue.

Padgett called Mrs. Brown, who said there was no sign before or at the crest of the hill. Mrs. Brown's car was stopped in the waiting line and was struck by a log falling off the truck. She testified that there was no flagman at the crest of the hill when she came over it. She was then asked if she saw one before she left the accident site, and she said:

"When we left, there was a flag person up there."

"Q. One had been put up there?

"A. Yes."

No objection was made by APAC.

Padgett then called for cross-examination two APAC employees, branch manager Holly and Thompson, the paving supervisor and safety officer for this job. Both testified about the contractual requirement that APAC provide traffic control on the job and the incorporation by reference into the contract of the Manual on Uniform Traffic Control Devices. The contract also contained a "traffic control plan" which, along with the Manual, were the minimum requirements for traffic control, said Thompson and Holly.

Immediately after the questions regarding the Manual, Thompson was asked:

"Q. You could have put more than the minimum number of signs out if a situation called for it, couldn't you?

"A. Yeah.

"Q. Have you ever done that?

"A. No sir.

"Q. Have you since?

"A. Afterwards, yes."

APAC moved for mistrial, on the basis that Padgett had violated the court's ruling on the Motion in Limine. The court excused the jury, had the court reporter read back the last couple of questions and answers, and denied a mistrial, stating that while counsel was "skating on very thin ice," the question was ambiguous and did not necessarily refer to placing additional signs on this job after this accident, but to whether APAC had used more signs than the manual required on other jobs thereafter. The court inquired whether APAC wanted the jury given any instructions, which APAC declined.

"OCGA § [15-1-3] provides every court with the power to control the activities and processes in its cases. Trial courts are invested with wide discretion in the management of the business before them, and this discretion will not be interfered with on appeal unless manifestly abused. [Cit.] The trial court also has broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate court unless it appears there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right of fair trial. [Cit.]" Southern R. Co. v. Lawson, 256 Ga. 798, 802(5), 353 S.E.2d 491 (1987).

Since evidence of post-accident remedial measures was already before the jury through Mrs. Brown's testimony, to which no objection was made, the denial of the mistrial was not a manifest abuse of discretion. Even if denial were error, it would be harmless in light of our holding on the admission of evidence set out below.

Padgett then called Powell, the Department of Transportation engineer for the project, who also said the contract traffic plan and the Manual were the minimum requirements, and that if additional signing were necessary for safety on the job, the contractor was obligated to supply it.

On cross-examination by APAC, Powell was asked if he inspected the traffic control devices each morning, including the morning of the accident. He answered that he tried to do so each morning but that he did not recall doing so before the accident; rather, "after the accident in question I did look at the signing of the job at that time." He was repeatedly asked by APAC about the sign which he found after the accident at the crest of the hill.

Finally, APAC asked: "Based on your experience and your position with the Department of Transportation at that job site, you were satisfied as to the placement of the warning signs for that job, weren't you?" Powell answered affirmatively, at which point Padgett requested a bench conference and argued that APAC had, by this series of questions, opened the door to the remedial measures. The court agreed, citing Brooks, supra. After the court announced its ruling, no objection was voiced by APAC....

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    • United States
    • Georgia Court of Appeals
    • 16 Julio 1990
    ...415, 416(1), 233 S.E.2d 492 (1977). Besides, the objection to the credentials of Orr was not meritorious. APAC-Ga. v. Padgett, 193 Ga.App. 706, 710(2), 388 S.E.2d 900 (1989); Hardin v. Hunter, 174 Ga.App. 756(1), 331 S.E.2d 83 (1985); Dimambro Northend Assoc. v. Williams, 169 Ga.App. 219, 2......
  • Cox v. Allen
    • United States
    • Georgia Court of Appeals
    • 20 Junio 2002
    ...admissibility of the opinion but to the weight and credibility of the witness as determined by the jury. APAC-Ga., Inc. v. Padgett, 193 Ga.App. 706, 710(2), 388 S.E.2d 900 (1989); Hyles v. Cockrill, 169 Ga.App. 132, 136 137(8), 312 S.E.2d 124 (1983), overruled on other grounds, Ketchup v. H......
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    • 2 Noviembre 1998
    ...and manifest abuse of discretion. Whitley v. Gwinnett County, 221 Ga.App. 18, 19(2), 470 S.E.2d 724 (1996); APAC-Ga. v. Padgett, 193 Ga.App. 706, 708(1), 388 S.E.2d 900 (1989); Vitner v. Funk, 182 Ga.App. 39, 40(1), 354 S.E.2d 666 No such abuse of discretion has been shown here and the case......
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    ...recessed areas had remained covered, yet had not caught fire. Id. at 397–398, 306 S.E.2d 657 ; see also APAC–Georgia v. Padgett, 193 Ga.App. 706, 707 –709(1), 388 S.E.2d 900 (1989) (allowing evidence of subsequent remedial measures to correct false impression left by defendant's testimony).......
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