City of Sandersville v. Usry

• Decision Date: 23 September 2022
• Docket Number: A22A0768
• Citation: 365 Ga.App. 426,878 S.E.2d 768
• Parties: CITY OF SANDERSVILLE v. USRY et al.
• Court: Georgia Court of Appeals

365 Ga.App. 426

878 S.E.2d 768

CITY OF SANDERSVILLE

v.USRY et al.

A22A0768

Court of Appeals of Georgia.

September 23, 2022

John Edward Price, Augusta, Kyle Brandon Waddell, Fulcher Hagler, for Appellant.

Robert Barryowen Sullivan, The Sullivan Law Firm, Statesboro, for Appellee.

Dillard, Presiding Judge.

Tonya Usry filed a personal injury action against the City of Sandersville, alleging that City employees’ negligence resulted in a collision between her vehicle and a City waste collection truck. The City moved for summary judgment, which the trial court denied. On interlocutory appeal, the City contends the trial court erred, arguing (1) there was no genuine issue of material fact as to whether the waste collection truck's hazard lights were flashing when the collision occurred; (2) there was no evidence City employees were negligent; and (3) Usry's negligence was the proximate cause of the collision. We agree the trial court erred in finding there was a genuine issue of material fact as to whether the truck's hazard lights were flashing, and so, we vacate its order and remand this case for further proceedings consistent with this opinion.

Viewed in the light most favorable to Usry (i.e. , the nonmoving party),¹ the record shows that on the morning of June 22, 2018, City employees Richard Brown and Jeffrey Burnett were driving a large—over eight feet tall and eight feet wide—waste collection "boom truck"² on their scheduled route to collect yard waste from City residents. The weather that morning was clear and dry, and the truck traveled eastbound on a straight, flat section of West Church Street. At approximately 8:20 a.m., Brown—the driver—activated the boom truck's flashing hazard lights and stopped on the road in front of 701 West Church Street to collect a small amount of yard waste at that residence. As the truck stopped, Burnett exited the passenger side to begin collecting tree limbs and leaves.

Meanwhile, Usry—who was driving her SUV with her young daughter in the back of the vehicle—was also heading eastbound on West Church Street. Inexplicably, Usry did not see the boom truck, and moments after it stopped, her SUV collided into the rear of the City's vehicle without braking or even slowing prior to impact. Usry suffered a serious injury to her arm and lost consciousness. But just as her SUV was about to catch fire, Burnett pulled Usry's daughter—who was not seriously injured—from the vehicle, while Brown and another City employee—who happened to be driving by at the time—extricated Usry before she suffered any further harm. Shortly thereafter, a fire engine arrived to extinguish the vehicle fire, and an ambulance transported Usry to the hospital. Following the accident, Brown and Burnett noticed that the boom truck's hazard lights were still flashing.

Approximately one hour after the collision, a Georgia State Patrol officer arrived to investigate the accident. Inspecting the boom truck, the state trooper observed that the rear of the vehicle was damaged and that its hazard lights had been destroyed and were not flashing. And as for Usry's vehicle, based on the extent of the damage, the trooper did not believe she was exceeding the 45 mph speed limit but could not definitively explain why she failed to see the boom truck—beyond opining that she was following too closely and the morning sun may have hindered her vision.

Subsequently, Usry filed a personal injury action against the City, alleging that the City employees’ negligence caused the collision involving her vehicle and the boom truck. The City filed an answer, and discovery ensued, which included, inter alia , depositions of Usry, the two City employees, and the state trooper. After discovery closed, the City filed a motion for summary judgment, arguing Usry failed to submit any evidence that its negligence caused her to collide with the boom truck. Usry filed a response, and the trial court held a hearing on the issue. A few weeks later, the trial court denied the City's motion, ruling that "a genuine issue as to a material fact appears to exist regarding whether or not the municipal waste collection vehicle had its flashing hazard lights on at the time of the incident as required by law." The City then filed an application for an interlocutory appeal, which we granted. This appeal follows.

Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."³ Importantly, if the movant meets this burden, the nonmovant "cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue."⁴ Of course, if summary judgment is granted, it enjoys no presumption of correctness on appeal, and an appellate court must satisfy itself that the requirements of OCGA § 9-11-56 (c) have been satisfied.⁵ In conducting this de novo review, we are charged with "viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant."⁶ Bearing these guiding principles in mind, we turn now to the City's specific claims of error.

1. The City first contends the trial court erred in ruling there was a genuine issue of material fact as to whether the boom truck's hazard lights were flashing when Usry's SUV collided with the rear of the City's boom truck. We agree.

It is a well-established principle that merely because "an accident occurred and a plaintiff suffered injury establishes no basis for recovery unless the plaintiff comes forward with evidence showing that the accident was caused by the defendant's negligence."⁷ And here, the trial court denied the City's motion for summary judgment on the ground that a genuine issue of material fact existed regarding whether its boom truck had flashing hazard lights on at the time of the incident as required by law. And while not cited in its order, the statute to which the trial court referred is OCGA § 40-6-203 (c), which provides:

Notwithstanding any other provision of law, any vehicle used solely for the purpose of collecting municipal solid waste or recovered materials ... may stop or stand on the road, street, or highway for the sole purpose of collecting such waste or materials; provided, however, that such vehicle shall maintain flashing hazard lights at all times that it is engaged in stopping or standing for the purpose of waste or materials collection.⁸

But contrary to the trial court's order denying summary judgment, the record evidence supports the City's contention that the boom truck's hazard lights were flashing when Usry's SUV collided into the back of the City's vehicle.

In their respective depositions, both Brown and Burnett testified that they tested the boom truck's hazard lights prior to beginning their collection route. More importantly, both Brown and Burnett unequivocally testified that Brown activated the truck's hazard lights as he stopped on the road in front of 701 West Church Street prior to the accident. No direct evidence contradicted Brown and Burnett's testimony. Rather, Usry testified that, prior to the collision, she never saw lights or even the truck itself. And when asked if she recalled whether the boom truck's hazard lights were flashing prior to the collision, Usry reiterated that she did not remember seeing the truck, so she could not say whether the hazard lights were flashing. Similarly, the state trooper who investigated the accident testified that because the hazard lights were damaged by the collision, he did not know if they were flashing prior to the accident and could neither confirm nor dispute Brown and Burnett's testimony that they had previously been activated.

Nevertheless, Usry argues—and the trial court agreed—that her testimony and the state trooper's testimony constitute circumstantial evidence that the boom truck's hazard lights had not been activated prior to the accident, thus creating a genuine issue of material fact and precluding summary judgment in the City's favor. But before circumstantial evidence can "have any probative value to rebut or contradict direct and positive testimony of an unimpeached witness of the alleged facts in question, such evidence must point at least more strongly to a conclusion opposite to the direct testimony."⁹ Indeed, it is not sufficient that "such circumstantial evidence points equally one way or the other."¹⁰ And here, Usry is correct that her testimony that she never saw the truck itself, or its hazard lights, prior to the collision provided circumstantial evidence to support an inference the boom truck's hazard lights were not flashing at the time of the accident. And the state trooper's testimony that the hazards were damaged and not flashing when he investigated the scene nearly an hour after the accident provided similar circumstantial evidence. But this inference is not demanded from Usry or the state trooper's respective testimony, because such testimony can also be construed consistently with the direct evidence provided by Brown and Burnett that the hazard lights were flashing prior to the collision.

Given these particular circumstances, Usry and the state trooper's testimony was insufficient to create a genuine issue of material fact on the question of whether the boom truck's hazards lights were flashing at the time of the accident.¹¹ Accordingly, the trial court erred in denying the City's motion for summary judgment on this specific ground.

2. In two separate enumerations of error, the City also contends the trial court erred in failing to grant summary judgment because there is no genuine issue of material fact to support the claim that the City employees acted negligently in any way and because Usry's negligence in failing to see the City's boom truck was the sole proximate cause of the accident. But ...