Carter v. Spells

• Citation: 494 S.E.2d 279,229 Ga.App. 441
• Decision Date: 18 November 1997
• Docket Number: No. A97A1372,A97A1372
• Parties: , 97 FCDR 4342 CARTER et al. v. SPELLS et al.
• Court: United States Court of Appeals (Georgia)

Page 279

494 S.E.2d 279

229 Ga.App. 441, 97 FCDR 4342

CARTER et al. v. SPELLS et al.

No. A97A1372.

Court of Appeals of Georgia.

Nov. 18, 1997.

Loyce W. Turner, Jr., Valdosta, for appellants.

Young, Thagard, Hoffman, Scott & Smith, Henry P. Scott, Valdosta, for appellees.

BEASLEY, Judge.

In this lawsuit arising from a motor vehicle collision, plaintiffs Christopher and Janet Carter appeal the grant of partial summary judgment to defendant Johnny Spells on the Carters' claim for punitive damages.

Evidence showed that as Christopher Carter drove his vehicle through an intersection in Valdosta, Spells' truck entered the intersection on a red light and collided with Carter. The Carters contended punitive damages would be justified because Spells' activities that evening, and other evidence showing his "reckless" and "violent" behavior, provided clear and convincing evidence of "that entire want of care which would raise the presumption of conscious indifference to consequences," as required by OCGA § 51-12-5.1(b). The trial court rejected this argument.

On appeal from a trial court's grant of summary judgment, the record is reviewed de novo and the evidence construed in a light most favorable to the party opposing summary judgment to determine whether the trial court properly concluded no genuine issue of material fact existed and movant was entitled to judgment as a matter of law. See Gentile v. Bower, 222 Ga.App. 736, 737, 477 S.E.2d 130 (1996). As the party seeking summary judgment, Spells is not required to "affirmatively disprove" the Carters' claim for punitive damages; "instead, [his] burden ... may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the [Carters'] case. If [he] discharges this burden, the [Carters] cannot rest on [their] pleadings, but rather must point to specific evidence giving rise to a triable issue." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). The question is whether the Carters produced evidence from which a jury could find Spells' actions showed conscious indifference to consequences as alleged in the second amended complaint and as provided by OCGA § 51-12-5.1(b). See Cullen v. Novak, 201 Ga.App. 459, 460(2), 411 S.E.2d 331 (1991).

In automobile collision cases decided under OCGA § 51-12-5.1, punitive damages are not recoverable where the driver at fault simply violated a rule of the road. See, e.g., Bradford v. Xerox Corp., 216 Ga.App. 83, 453 S.E.2d 98 (1994) (defendant's speeding did not warrant imposition of punitive damages absent evidence of other aggravating circumstances); Coker v. Culter, 208 Ga.App. 651, 431 S.E.2d 443 (1993) (punitive damages not warranted even though defendant was speeding on wet roads, had consumed some alcohol, and behaved abominably after collision); Cullen, supra (careless running of red light not sufficient aggravating circumstance).

On the other hand, punitive damages are recoverable under the statute where the collision resulted from a pattern or policy of dangerous driving. See, e.g., Boyett v. Webster, 224 Ga.App. 843, 482 S.E.2d 377 (1996) (cert. granted) (DUI in incident and on previous occasions); Cheevers v. Clark, 214 Ga.App. 866, 869(4), 449 S.E.2d 528 (1994) (drunk driving in incident at issue as well as subsequent arrests for drunk driving); Holt v. Grinnell, 212 Ga.App. 520, 441 S.E.2d 874 (1994) (drunken driving); Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 828(2), 435 S.E.2d 54 (1993) (a "policy" of excessive speed plus defendant struck plaintiff's vehicle twice and kept pushing); J.B. Hunt Transport v. Bentley, 207 Ga.App. 250, 255(2), 427 S.E.2d 499 (1992) (truck driver drove 20 miles despite serious mechanical problem which caused collision); Viau v. Fred Dean, Inc., 203 Ga.App. 801, 804(4), 418 S.E.2d 604 (1992) (drunken driving); Day v. Burnett, 199 Ga.App. 494, 496(2), 405 S.E.2d 316 (1991) (driving under the influence and in violation of a number of traffic safety laws). Cases which involve the less stringent standards of proof applicable before the effectiveness of OCGA § 51-12-5.1 also relate to aggravated circumstances of driving. See Harrison v. S & B Trucking, 179 Ga.App. 291, 292(1), 346 S.E.2d 101 (1986) (excessive speeds of tractor-trailer "in conjunction with the other facts"); and Moore v. Thompson, 255 Ga. 236, 237, 336 S.E.2d 749 (1985) (DUI in incident and on previous and subsequent occasions).

The Carters failed to demonstrate Spells engaged, that evening and earlier, in behavior connected with his driving which would show a conscious indifference to its consequences. While no one would condone, much less defend, Spells' history of disruptive misdeeds and antisocial behavior, and the purpose of punitive damages for a tort is "to punish" or "penalize" the defendant for the tort committed "or [to] deter" the defendant from future similar acts (OCGA § 51-12-5.1(c)), the award authorized by the legislature for the tortfeasor's intent, motive, or attitude, as articulated in subsection (b) of the statute, has been construed as that which is related to the tort. It is this orientation of defendant in connection with the act at issue which aggravates the act's wrongfulness. There is an element of contributing cause involved in the sense that these circumstances surrounding the act worsened the wrongfulness of it even if the aggravating circumstances did not increase the injuries inflicted. Compare Moore v. Thompson, supra, and Cheevers v. Clark, supra, where the drunk driving caused the accidents and other acts of drunk driving showed the defendants continued this forbidden and dangerous activity thereafter. Since Spells' alleged tort occurred as a result of driving a vehicle, the aggravating circumstances would be those related to his driving.

Spells' own testimony is the only evidence of his actions just before the collision. Spells testified he was stopped at the red light when a group of local boys who had earlier challenged him to a fight pulled beside his truck and bumped it with their car. The impact scared him and caused him to release his foot from the clutch, which sent the car into the intersection. Even then, he testified, he thought he could turn right and avoid colliding with Carter's car. Christopher Carter's testimony confirms that just before the collision, Spells' truck was stopped at the red light and a darker vehicle was stopped beside it. A jury should decide whether Spells was negligent, but this evidence does not provide a basis for finding that Spells consciously and deliberately disregarded the interests of others when he entered the intersection. See Cullen, supra.

The Carters point to Spells' testimony that for several hours before the accident, he rode around Valdosta with his girl friend even though he knew the group of boys wanted to fight him. The Carters contend that, in addition, Spells' history of fights and other disciplinary problems show his propensity toward violence and reckless behavior.

None of this circumstantial evidence overcomes Spells' direct testimony that he did not voluntarily engage in or offer to engage in any fight that night. He consistently testified that, although he did consider accepting the boys' challenge to fight, at his girl friend's request he attempted to avoid his challengers. At one point he jumped a curb in leaving a bank parking lot after deciding not to get involved. As he left town to take his girl friend home, the group of boys followed him to the intersection at which the collision occurred. "[C]ircumstantial evidence has no probative value in establishing a fact when such evidence is consistent with direct and unimpeached evidence showing the non-existence of such a fact." (Citation and punctuation omitted.) Red Top Cab Co. v. Hyder, 130 Ga.App. 870, 871, 204 S.E.2d 814 (1974). Nor does any of the evidence offered otherwise relate to the nature of his driving on this occasion.

Spells was later ticketed twice for speeding and no proof of insurance, but driving violations support punitive damages...