Coker v. Culter

• Decision Date: 13 May 1993
• Docket Number: No. A93A1054,A93A1054
• Parties: COKER et al. v. CULTER.
• Court: Georgia Court of Appeals

Page 443

431 S.E.2d 443

208 Ga.App. 651

COKER et al. v. CULTER.

No. A93A1054.

Court of Appeals of Georgia.

May 13, 1993.

Whelchel, Dunlap & Gignilliat, Thomas S. Bishop, Gainesville, for appellants.

Chambers, Mabry, McClelland & Brooks, Daniel N. Meyer, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Appellants Billie and Angela Coker and appellee Lyle Pace Culter were involved in an auto collision. Partial summary judgment was granted to appellee as to punitive damages. Appellants appeal on grant of punitive damages.

By affidavit, appellee admitted going 40 mph in a 35 mph zone; water was standing on the road; visibility was poor; his car hydroplaned and crossed over the centerline; two passengers in the car were drinking but appellee, who had drunk beer some time before the accident tested one hour after the accident at .03 percent grams blood-alcohol content. Drug paraphernalia was found in the back of appellee's car, though he claimed he knew nothing about it. He admitted he may have been driving a little too fast for conditions. After the collision, appellee jumped out of the car and stomped and slammed the front end of his car while cursing; appellant, who was pregnant, screamed she was in labor. Held:

On motion for summary judgment, if there is no evidence sufficient to create a genuine issue of material fact as to any essential element of the plaintiff's claim, that claim fails. Lau's Corp. v. Haskins, 261 Ga. 491, 495, 405 S.E.2d 474. A defendant seeking summary judgment may discharge his burden by showing an absence of evidence to support the plaintiff's case. If the movant discharges this burden, the respondent cannot rest on the pleadings, but must point to specific evidence giving rise to a triable issue. Lau's Corp., supra at 491, 405 S.E.2d 474. See OCGA § 9-11-56(c).

The trial court did not err in granting partial summary judgment to appellee as to punitive damages. Punitive damages may be awarded only where it is proven by "clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." OCGA § 51-12-5.1(b). "Punitive damages cannot be imposed without a finding of some form of culpable conduct. Negligence, even gross negligence, is inadequate to support a punitive damage award." Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118(3b), 365 S.E.2d 827.

Although there may be evidence of gross negligence in this case, there is no clear and convincing evidence that defendant's acts arose to the level sought to be punished under OCGA § 51-12-5.1. Day v. Burnett, 199 Ga.App. 494, 405 S.E.2d 316; Harrison v. S & B Trucking, 179 Ga.App. 291, 292(1), 346 S.E.2d 101; American Fidelity, etc., Co. v. Farmer, 77 Ga.App. 166, 48 S.E.2d 122; and Rutland v. Dean, 60 Ga.App. 896, 5 S.E.2d 601 are not controlling, as they...