Gwinnett Cnty. v. Sargent

• Decision Date: 04 April 2013
• Docket Number: No. A12A2083.,A12A2083.
• Parties: GWINNETT COUNTY v. SARGENT et al.
• Court: Georgia Court of Appeals

738 S.E.2d 716

GWINNETT COUNTY

v.SARGENT et al.

No. A12A2083.

Court of Appeals of Georgia.

March 12, 2013.

Reconsideration Denied April 4, 2013.

Michael A. O'Quinn, McDonough, for Appellant.

Gary Michael Cooper, Terry Dale Jackson, Atlanta, Marion T. Pope Jr., for Appellee.

BOGGS, Judge.

Gwinnett County (“the County”) appeals following a $2 million jury verdict in favor of Faustina Sargent, individually, and as administrator of the estate of Willie Allen Sargent, Jr. (“the appellees”) in this wrongful death action. The County contends that the trial court erred in ruling that the waiver of its sovereign immunity was not limited to $100,000, and that it also erred in granting the appellees' motion in limine to exclude any evidence of the deceased's blood-alcohol level. We agree that the trial court erred in both respects, and we therefore reverse.

On December 15, 2006, around midnight, a Gwinnett County police officer was traveling on Stone Mountain Highway with no siren or emergency lights when he struck a vehicle driven by Willie Sargent as Sargent turned left in front of him from the turn lane. Sargent died at the scene. It is undisputed that the officer was driving in violation of the posted speed limit, 79 miles-per-hour in a 45 mile-per-hour speed zone. He was responding to a call for back-up for another officer investigating a suspicious person, but violated police department policy by speeding in response to the call, which was considered “non-emergent.” Also in violation of police department policy, the officer was driving in excess of the speed limit without using his siren and emergency lights.

The appellees filed suit against the County for the wrongful death of Sargent. The County denied liability and asserted that it was entitled to sovereign immunity, that the decedent was negligent, and that he assumed the risk because of his voluntary intoxication.

The County subsequently moved for partial summary judgment “to limit the amount of monetary damages that may be awarded to Plaintiff” to the statutory maximum waiver of sovereign immunity of $100,000. Following the argument of counsel, the trial court denied the County's motion.

Prior to trial, the appellees moved in limine to exclude any evidence that the decedent had a blood-alcohol level of .192 at his death. The trial court held a hearing on the matter, and granted the appellees' motion, finding that any probative value from the admission of the evidence was outweighed by the danger of undue prejudice. The court nevertheless ruled that “[t]he issues of whether the decedent was negligent in turning across three lanes of traffic at night and whether this [o]fficer could have been seen [ ] [the decedent] are still issues for trial.”

After a three-day jury trial, the jury found in favor of the appellees in the amount of $2,000,000. The jury found further that the decedent was “negligent five percent.” The County immediately moved to have the jury's verdict reduced to $100,000 pursuant to OCGA § 36–92–2(a)(1) (statutory waiver of sovereign immunity). The trial court denied the motion and entered a judgment in favor of the appellees in the amount of $1,900,000, deducting $100,000 based upon the jury's finding that the deceased was five percent negligent.

1. The County argues that the trial court erred in granting the appellees' motion in limine to exclude evidence that the deceased's blood-alcohol level was .192. “We review a trial court's ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Citation and footnote omitted.) Hankla v. Jackson, 305 Ga.App. 391, 391(1), 699 S.E.2d 610 (2010).

A forensic toxicologist testified at the hearing on the motion in limine that the deceased's blood-alcohol level was .192 at the time of his death. She opined that this would affect an individual's ability to perceive and react. An investigator with the Gwinnett County Police Department Accident Investigation Unit also testified at the hearing, and the trial court viewed a video recording of the few seconds before impact recorded by a nearby business. The investigator testified that based upon his accident reconstruction and data recorded by the officer's vehicle, five seconds before impact, the officer was traveling at 79 miles-per-hour and was 579 feet, or about one-tenth of a mile, away from the deceased's vehicle. He explained further that the deceased's sight distance was 1159 feet and that the deceased had 5 seconds to see the officer “before he committed to making the turn.” The investigator determined that there were three contributing factors to the accident:

You are going to have [the officer's] speed, which, obviously, increased the severity of the accident. You're going to have [the decedent] failing to yield while turning left. And you're also going to have [the decedent's] blood [-]alcohol level, which, .192, I've pulled over people before at a .192, even less than that, and most people exhibit ... problems in judgment and perception and those types of manifestations.

We have held that “the question of whether a motorist's consumption of alcohol impaired his driving capabilities and entered into the proximate cause of the collision is best left for the jury's resolution.” (Citation and punctuation omitted.) Schwartz v. Brancheau, 306 Ga.App. 463, 467(2), 702 S.E.2d 737 (2010). And “[u]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” (Citations and punctuation omitted.) Id.

In Schwartz, we held that evidence that the driver's breath smelled of alcohol had a logical connection to the issue of whether he was intoxicated, and that the trial court did not abuse its discretion is permitting the evidence where it had some relation to his driving capability before the collision. Id. Here, much stronger evidence of intoxication was presented, a blood-alcohol level of .192, more than twice the legal limit. See OCGA § 40–6–391(a)(5) (0.08 grams).

Finney v. Machiz, 218 Ga.App. 771, 463 S.E.2d 60 (1995), cited by the appellees, is distinguishable. In Finney, a vehicle in which the plaintiff was a passenger swerved over the centerline of the road striking a van driven by the defendant. Id. The evidence showed that the defendant was under the influence of alcohol and cocaine. Id. We held that the alleged negligence of the defendant in driving under the influence played “no causative role in the collision” as a matter of law, and that the sole proximate cause was the vehicle in which the plaintiff was a passenger crossing the center line and striking the defendant's vehicle. Id. at 773, 463 S.E.2d 60. In contrast to Finney, however, the jury here was charged with deciding whether the officer's action of speeding at night without a siren or emergency lights, or the decedent's action of turning left in front of the officer, or a combination of both, was the proximate cause of the accident.

Under these particular circumstances, the issue of whether the decedent's blood-alcohol level factored into the proximate cause of the collision should have been presented for the jury to resolve. See Schwartz, supra, 306 Ga.App. at 467–468(2), 702 S.E.2d 737. The evidence showed that the decedent made a left turn from the turn lane across three lanes of traffic into the path of the speeding officer. Evidence that his blood-alcohol level was more than twice the legal limit, and that such a blood-alcohol level would affect a person's perception and reaction time was relevant to the jury's consideration of whether the decedent was negligent in turning left in front of the officer and therefore failed to yield the right of way. Moreover, the jury did in fact determine that the decedent was “five percent negligent,” presumably for the failure to yield. The trial court therefore abused its discretion in excluding evidence of the decedent's blood-alcohol level.

2. The County also contends that the trial court erred in allowing a judgment in excess of the statutory maximum waiver of its sovereign immunity. “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 186, 674 S.E.2d 894 (2009). And “[a] waiver of sovereign immunity must be established by the party seeking to benefit from the waiver.” (Footnote, citation and punctuation omitted.) Smith v. Chatham County, 264 Ga.App. 566, 567(1), 591 S.E.2d 388 (2003).

In 2002, the Georgia legislature enacted OCGA § 36–92–1 et seq., an Act titled “Waiver of Immunity for Motor Vehicle Claims.” It applies “to all claims and causes of actions arising out of events occurring on or after January 1, 2005.” OCGA § 36–92–5. The maximum waiver amount varies according to the date of the incident. See generally OCGA § 36–92–2. ¹ The accident here occurred on December 16, 2006; therefore, as provided in OCGA § 36–92–2(a)(1):

The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to the following limits: ... $100,000.00 because of bodily injury or death of any one person in any one occurrence, ... for incidents occurring on or after January 1, 2005, and until December 31, 2006[.]

Section (d) provides three...