Cowart v. Widener

• Decision Date: 18 March 2009
• Docket Number: No. A09A0719.,No. A09A0718.,A09A0718.,A09A0719.
• Citation: 296 Ga. App. 712,675 S.E.2d 591
• Parties: COWART et al. v. WIDENER et al. United Transportation, Inc. v. Cowart et al.
• Court: Georgia Court of Appeals

675 S.E.2d 591

296 Ga. App. 712

COWART et al. v. WIDENER et al.

United Transportation, Inc. v. Cowart et al.

No. A09A0718.

No. A09A0719.

Court of Appeals of Georgia.

March 18, 2009.

Amy R. Snell, John Arthur Davison, Fulcher & Hagler, Augusta, for United Transportation, Inc.

Charles C. Stebbins, III, Warlick, Tritt, Stebbins & Murray, Augusta, for Cowart et al.

J. Edward Allen, Jr., Charles C. Mayers, Fortson, Bentley & Griffin, Athens, for Widener et al.

ANDREWS, Presiding Judge.

The heirs of Roby Cowart, Sr., brought this wrongful death action against his brother-in-law Nathan Widener as well as Widener's employer, United Transportation, Inc., and the latter's insurer, American International South Insurance Company (AIS), after Cowart died of natural causes while traveling as an unauthorized passenger in the truck Widener was driving from Georgia to Ohio. The trial court granted summary judgment to Widener and United Transportation on the ground that plaintiffs had produced no evidence that Widener's failure to obtain medical care was the proximate cause of Cowart's death. The trial court granted summary judgment to AIS on the ground that Cowart's death did not arise from Widener's operation of the truck. In Case No. A09A0718, plaintiffs argue that the trial court erred when it granted summary judgment to all three defendants. In Case No. A09A0719, United Transportation argues that the trial court should have granted summary judgment on other grounds and that it should have excluded the testimony of an expert. We affirm in Case No. A09A0718 and dismiss Case No. A09A0719 as moot.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555, 588 S.E.2d 441 (2003). A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the non-movant. Ethridge v. Davis, 243 Ga.App. 11, 12, 530 S.E.2d 477 (2000). Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the non-movant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp., 194 Ga.App. 174, 390 S.E.2d 87 (1990).

So viewed, the record shows that on November 30, 2003, Widener and Cowart left Thomson, Georgia in the truck Widener was driving as an independent contractor for United Transportation to Columbus, Ohio. Cowart suffered from severe erosive esophagitis, a condition in which gastric acid has damaged the esophagus, with results including the oozing of blood and a narrowing or stricture of the esophagal wall. Esophageal bleeding can cause vomiting, which can lead in turn to a potentially fatal rupture of the esophagus. Widener's employment contract with United Transportation permitted Widener to choose his own routes, but provided that Widener "shall not allow any passenger to ride in the [truck], unless authorized in writing by [United Transportation] as required by law." It is undisputed that United Transportation never authorized Widener to carry Cowart.

That afternoon, as the two men traveled north on Interstate 75 near the Kentucky-Tennessee border, Cowart told Widener that his throat was "closing in on him" and began vomiting blood. Widener pulled into a truck stop and attempted to revive Cowart. At this or a later time, Widener called his wife, Cowart's sister, who told him to check Cowart's pulse, put water on his lips, and determine if he was breathing. Cowart was nonresponsive. Widener resumed his trip and reached Lexington, Kentucky, where he began to smell a foul odor characteristic of diarrhea following substantial internal bleeding. Widener again stopped the truck and attempted to revive Cowart, without success.

Shortly after midnight on December 2, Widener's parked truck rolled backward into another truck at a rest stop in Delaware, Ohio. A state trooper called to the scene noticed that Widener was nervous and kept looking back at the closed curtain to the truck cab's bunk area. The trooper then asked him to open the curtain so that she "could make sure he didn't have any dead bodies" hiding there. Widener responded, "Well, my brother-in-law is back there, but I don't think he is dead." In fact, however, Cowart's body was already cold. The coroner's report listed the cause of death as "exsanguination," or internal bleeding, occurring within approximately two hours of a gastrointestinal hemorrhage. The coroner later testified that a person suffering such a hemorrhage can be asleep and not realize what is happening. Apart from small amounts of granulated blood at the corner of Cowart's mouth and on some tissues he had used, no blood was found in the cab or the sleeper berth.

At his deposition, Cowart's treating physician, Dr. Robert Schade, testified that he did not have "nearly enough information to draw a conclusion about why [Cowart] died" and had "no way of judging" whether Cowart would have survived had he obtained emergency treatment. In an affidavit seeking to clarify his testimony, however, Dr. Schade averred that "if a patient were allowed to bleed internally for a period of hours, with no medical treatment whatsoever, death could be the likely result."

1. The principal issue on appeal is whether the trial court correctly granted summary judgment to (a) Widener and (b) United Transportation due to a failure of evidence that Widener's delay in obtaining treatment was the proximate cause of Cowart's death.

(a) Plaintiffs argue that they are not required to produce expert testimony on the causes of a decedent's death in a case...