Eubanks v. BELLSOUTH TELECOMMUNICATIONS, INC.

• Court: Georgia Court of Appeals
• Writing for the Court: POPE, Senior Appellate.
• Citation: Eubanks v. BELLSOUTH TELECOMMUNICATIONS, INC., 572 S.E.2d 357, 257 Ga. App. 803 (Ga. App. 2002)
• Decision Date: 09 October 2002
• Docket Number: No. A02A1346.,A02A1346.
• Parties: EUBANKS v. BELLSOUTH TELECOMMUNICATIONS, INC. et al.

572 S.E.2d 357

257 Ga. App. 803

EUBANKS v. BELLSOUTH TELECOMMUNICATIONS, INC. et al.

No. A02A1346.

Court of Appeals of Georgia.

October 9, 2002.

Hill & Bleiberg, Gary Hill, Atlanta, for appellant.

Jones, Cork & Miller, H. Jerome Strickland, Christopher B. Jarrard, Reynolds & McArthur, Bradley J. Survant, Macon, for appellee.

POPE, Senior Appellate Judge.

Pauline Eubanks filed this lawsuit for personal injuries against BellSouth Telecommunications, Inc., Bennie Green, and Ricardo Merrell for injuries she claimed from a vehicular collision at the location of a BellSouth work site. BellSouth and Green filed a motion for summary judgment, which the trial court granted. Eubanks appeals, and for the following reasons we reverse.

The facts in this case, the record of which is more than 3,000 pages, establish that the accident occurred on the morning of December 24, 1997. It is undisputed that Eubanks was driving her car south on Georgia Highway 272, which is a two-lane rural road in Oconee. At the same time, defendant Ricardo Merrell was driving north in a pickup truck on Highway 272. The weather was inclement the morning of the accident. It is also undisputed that at the same time as Eubanks and Merrell were driving in opposite directions on the highway, Green, a repairman for BellSouth Telecommunications, was "troubleshooting" to locate a problem with a telephone line in the area.

The parties disagree about many of the other facts surrounding the accident. In any event, Eubanks claimed that she was injured in the collision and sued BellSouth Telecommunications, Green, and Merrell, alleging that BellSouth and Green were negligent in creating a dangerous condition and failing to adequately warn of the condition. According to Eubanks' complaint, the truck Green had been driving was parked on the edge of the highway and within the utility right-of-way. Eubanks contended that when Merrell drove around the curve, he saw the utility truck in the road and, in an effort to avoid a collision, reacted suddenly, braked, and hydroplaned. She claimed that Merrell then crossed the centerline and struck her vehicle. She claimed that BellSouth and Green were negligent in positioning the vehicle within the utility right-of-way; in failing to warn motorists of the utility vehicle; in failing to place various warning devices on the road to warn drivers of the activities of the BellSouth employee; and in failing to adequately train Green regarding basic utility safety measures to protect members of the motoring public.

BellSouth and Green answered the complaint, denying various aspects of Eubanks' version of the accident. Specifically, they denied that Green's truck was at the "edge" of the road; they also denied that there were no warning or signaling devices of any kind to alert drivers as they traveled around the curve. Merrell did not file an answer, and the court entered an order recognizing that he was uninsured and directing judgment in favor of Georgia Farm Bureau for $15,000.

The parties conducted discovery, and then BellSouth and Green filed a motion for summary judgment. In the motion, BellSouth and Green argued that there was no evidence to show that their alleged omission of failing to set up a warning sign was a proximate cause of the accident. They claimed that Green pulled into the driveway to perform his repair work and that the rear end of his truck was about four feet from the roadway's white fog line. They also claimed that Green had placed a fluorescent orange cone behind the BellSouth truck before performing his work. They further argued that Merrell's truck had slick tires and that Merrell was speeding at the time of the accident. In the motion, BellSouth and Green conceded that Merrell had testified that the BellSouth vehicle backed into his vehicle. Nevertheless, they argued that this testimony was eclipsed by the testimony of other witnesses, which corroborated their version of events.

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