Cannon v. Barnes, A20A1216

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMercier, Judge.
Citation850 S.E.2d 436,357 Ga.App. 228
Docket NumberA20A1216
Decision Date20 October 2020

357 Ga.App. 228
850 S.E.2d 436



Court of Appeals of Georgia.

October 20, 2020

850 S.E.2d 439

Drew Eckl & Farnham, Stevan A. Miller, Lisa R. Richardson, for appellant.

Savage Turner Durham Pinckney & Savage, Robert B. Turner ; Southeast Law, Ashleigh R. Madison, for appellee.

Mercier, Judge.

357 Ga.App. 228

On February 22, 2013, Trevor Cannon was driving a pickup truck on Interstate 516 when he crossed the median and hit an oncoming vehicle being driven by Stephen Joyner. Stephen1 and Camie Joyner, his wife who was a passenger in the vehicle, both died as a result of the collision. The Joyners’ three-year-old daughter, Dakota, who was a passenger in the vehicle, survived the collision.

Linda Barnes, Camie's mother, filed the underlying lawsuit against Cannon and John Doe,2 another driver that Cannon claimed contributed to the collision, as administrator of Camie's estate and as next friend and joint temporary guardian of Dakota. A jury awarded Barnes, in her representative capacity, $3,000,000, with 55% of fault apportioned to Cannon and 45% to John Doe. Cannon appeals, arguing that the trial court erred by admitting certain evidence, in its jury charge, and by denying his motions for partial directed verdict, for mistrial, for judgment notwithstanding the verdict and for a new trial. Finding no error, we affirm.

357 Ga.App. 229

1. Cannon argues that the trial court erred by admitting irrelevant and prejudicial evidence at trial. "[T]he admission of evidence is generally committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion." Cooper Tire & Rubber Co. v. Crosby , 273 Ga. 454, 456-457 (2), 543 S.E.2d 21 (2001) (citations and punctuation omitted).

Following rulings on a motion for partial summary judgment and a motion to dismiss, the only remaining claim at trial was for Camie's conscious pain and suffering.

For pre-impact pain and suffering to be awarded, the jury must have some evidence that the deceased at some point in time was conscious of her imminent death; the jury may infer such consciousness from evidence immediately prior to impact or following her injury .... The fright, shock, and mental suffering experienced by an individual due to wrongful acts of negligence will authorize a recovery where attended with physical injury.

Dept. of Transp. v. Dupree , 256 Ga. App. 668, 680 (4), 570 S.E.2d 1 (2002) (citation and punctuation omitted) (disapproved of on other grounds by Dept. of Transp. v. Thompson , 354 Ga. App. 200, 207 (1) n. 6, 840 S.E.2d 679 (2020) ). Cannon does not dispute that Barnes could recover for Camie's pre-impact pain and suffering. Instead, he argues that evidence presented at trial regarding Camie's life, including character evidence, two photographs of her with Stephen and Dakota, that Camie was pregnant at the

850 S.E.2d 440

time of the collision and that Stephen died due to the collision, was irrelevant and unfairly prejudicial.

On the date of the collision, Stephen, Camie and Dakota were returning from a visit to Camie's doctor where her pregnancy had been confirmed. Camie was on the telephone with Barnes, telling her about the appointment, when Barnes heard Camie scream "oh my god, look at that" and then scream Stephen's name; a few seconds later Barnes heard the crash.

Evidence regarding Camie's state of mind, including the fact that she was pregnant and that she was riding in the vehicle with her husband and daughter, had relevance to her fright, shock, and mental suffering prior to the collision. See generally Central of Georgia R. Co. v. Ross , 342 Ga. App. 27, 32 (2), 802 S.E.2d 336 (2017) ("Even evidence of doubtful relevancy should be admitted and its weight left to the jurors.") (citation and punctuation omitted); Blanton v. Marchbanks , 139 Ga. App. 158, 161 (3), 228 S.E.2d 285 (1976) (evidence offered to show the plaintiff's state of mind included "the mental fear, pain and

357 Ga.App. 230

suffering"). The evidence at trial suggested that Camie knew that the collision was imminent and, therefore, background evidence regarding Camie's situation in life and character had relevance to Camie's pain and suffering. See generally Walraven v. State , 250 Ga. 401, 407 (4) (b), 297 S.E.2d 278 (1982) ("Character is circumstantial evidence of conduct and state of mind[.]") (citation and punctuation omitted).

Furthermore, the balancing test of OCGA § 24-4-403 (‘‘Rule 403‘‘)

is a quintessentially fact-sensitive enterprise, and the trial judge is in the best position to make such factbound assessments. Recognizing that coign of vantage, we typically give the [trial] court wide latitude when evaluating the delicate balance that Rule 403 requires. Only rarely - and in extraordinarily compelling circumstances - will we, from the vista of a cold appellate record, reverse a [trial] court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect.

Rivers v. K-Mart Corp. , 329 Ga. App. 495, 497 (1), 765 S.E.2d 671 (2014) (citation and punctuation omitted). Cannon has failed to show that the trial court abused its discretion by ruling that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice. See OCGA § 24-4-403 ; Georgia Osteopathic Hosp. v. O'Neal , 198 Ga. App. 770, 779 (13), 403 S.E.2d 235 (1991) ("Photographs are ordinarily admissible unless they contain inflammatory depictions which might be prejudicial toward the objecting party.") (citation and punctuation omitted); Central Georgia Women's Health Center v. Dean , 342 Ga. App. 127, 141 (2), 800 S.E.2d 594 (2017) ("Rule 403 is an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility.") (citation and punctuation omitted). The trial court did not abuse its discretion in its evidentiary rulings.3

2. Cannon claims that the trial court erred by denying his motion for partial directed verdict regarding Camie's post-impact pain and suffering. "[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict."

357 Ga.App. 231

St. Paul Mercury Ins. Co. v. Meeks , 270 Ga. 136, 137 (1), 508 S.E.2d 646 (1998).

[O]n appeal from the denial of a motion for a directed verdict or for [judgment notwithstanding the verdict], we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict. However, we review questions of law de novo, applying the plain legal error standard of review.
850 S.E.2d 441

Southland Propane v. McWhorter , 312 Ga. App. 812, 813, 720 S.E.2d 270 (2011) (citations and punctuation omitted).

Cannon initially moved for a partial directed verdict at the close of plaintiff's...

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2 cases
  • Fassnacht v. Moler, A20A1583
    • United States
    • United States Court of Appeals (Georgia)
    • February 22, 2021
    ...erroneous jury charge, we apply a plain legal error standard of review." (Citation and punctuation omitted.) Cannon v. Barnes , 357 Ga. App. 228, 231 (3), 850 S.E.2d 436 (2020). With respect to punitive damages, we have explained:Under OCGA § 51-12-5.1 (b), punitive damages may be awarded o......
  • Quattrocchi v. State, A20A1127
    • United States
    • Georgia Court of Appeals
    • October 20, 2020
    ...meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural 850 S.E.2d 436 and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is......

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