In/Ex Sys., Inc. v. Masud
Decision Date | 30 October 2019 |
Docket Number | A19A0805 |
Citation | 835 S.E.2d 799,352 Ga.App. 722 |
Parties | IN/EX SYSTEMS, INC. v. MASUD |
Court | Georgia Court of Appeals |
Nicole Christine Leet, Michael J. Rust, William D. Strickland, Atlanta, for Appellant.
Andrew Timothy Rogers, M. Khurram Baig, Naveen Ramachandrappa, Atlanta, Craig Patrick Terrett, Norcross, Joseph Robb Cruser, for Appellees.
This appeal arises from two lawsuits filed by Tahsin Masud ("Masud"), one as personal representative and administrator of the estate of Aila Masud and the other as father and next friend of Sana Masud, regarding a car collision that tragically caused Aila’s death and Sana’s injuries.1 Aila was killed and Sana was injured after a tire became separated from the vehicle Michael Green was driving, and then crossed the median on Interstate 85 and struck the vehicle Aila was driving. Masud filed the lawsuits against Green, Green’s employer, In/Ex Systems, Inc., and other parties.2 In/Ex filed a motion for summary judgment in the both lawsuits, which the trial court denied. We granted In/Ex’s application for interlocutory appeal to review the trial court’s order and, for the following reasons, we reverse.
1. As an initial matter, certain allegations of facts stated by Masud in his appellate brief are supported only by citations to his trial court briefs, and he fails to cite to evidence in the record to support these allegations. Of course, "[f]actual assertions in appellate briefs and in briefs in the trial record and not otherwise supported by evidence of record cannot be considered on appellate review." Dover Realty v. Butts County Bd. of Tax Assessors , 202 Ga. App. 787 (1), 415 S.E.2d 666 (1992) (citation omitted). "[B]riefs cannot be used in lieu of the record or transcript to add evidence to the record." Fidelity Enterprises v. Heyman & Sizemore , 206 Ga. App. 602, 603 (1), 426 S.E.2d 177 (1992) (citation omitted). Furthermore, "exhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by this court[.]" Bennett v. Moody , 225 Ga. App. 95, 96, 483 S.E.2d 350 (1997) (citation and punctuation omitted). Failure of Masud to cite to parts of the record or transcript deemed material shall Court of Appeals Rule 25 (b) (1). While it is possible that the evidence relied upon exists somewhere in the appellate record’s 39 volumes, "[w]e have repeatedly held that it is not the function of this court to cull the record on behalf of a party." Rolleston v. Cherry , 226 Ga. App. 750, 753 (1) (b), 487 S.E.2d 354 (1997) (citation and punctuation omitted). This rule is particularly true in cases, such as this one, with a voluminous record. See id.
Dougherty Equip. v. Roper , 327 Ga. App. 434, 757 S.E.2d 885 (2014) (citation omitted).
So viewed, the evidence shows the following. At the time of the collision, Green worked for In/Ex as a technician, primarily in commercial construction. On April 26, 2013, the date of the collision, Green drove a Dodge Ram truck owned by his mother to the In/Ex warehouse at 4:45 a.m. He and a co-worker, Dan Neal, then traveled in the Dodge Ram to their first job site for In/Ex, where they worked until 7:30 a.m. They left the first job site and began traveling to Guitar Center "to get guitar parts," before they were due at their next job site. As Green was driving northbound on Interstate 85, at approximately 7:45 a.m., a vehicle suddenly entered his travel lane. Green quickly changed lanes to avoid colliding with the vehicle, and the front driver’s side tire came off of his vehicle, traveled across the median and struck Aila’s vehicle as she was driving southbound on Interstate 85. Neither Green nor Neal had noticed anything wrong with the truck on the day of the collision. Green pled guilty to driving an unsafe vehicle. See OCGA § 40-8-7.
Masud filed the lawsuits against In/Ex (and other parties not subject to this appeal) asserting a vicarious liability claim against In/Ex.3 Specifically, Masud claimed that Green failed to maintain the truck in safe operating condition and that Green’s actions are imputed to In/Ex.
At his deposition, Green testified that he worked on trucks "as a hobby" and considered himself to be experienced in truck maintenance. Sometime in January 2013, Green took a day off of work to replace the truck’s rotors and brake pads, during which time he removed the wheels. Green testified that he "had no idea" that something was wrong with the vehicle.
In/Ex filed a motion for summary judgment in both lawsuits, arguing, inter alia, that Green had not been driving negligently at the time of the collision. The trial court denied In/Ex’s motion for summary judgment. In/Ex argues that the trial court erred in denying its motion for summary judgment because there was no negligent act by Green at the time of the injury for which vicarious liability could attach.4 We agree.
Every master shall be liable for torts committed by "his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily." OCGA § 51-2-2. Green pled guilty to violating OCGA § 40-8-7 (a), which states that "[n]o person shall drive or move on any highway any motor vehicle ... unless the equipment upon any and every such vehicle is in good working order ... and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway." OCGA § 40-8-7 is a "strict criminal liability statute," "which can be violated and enforced of necessity through a criminal sanction without a showing of mens rea or guilty knowledge on the part of the violator." Nelson v. State , 224 Ga. App. 623, 624 (5), 481 S.E.2d 605 (1997) (citations and punctuation omitted).
Harden v. Burdette , 204 Ga. App. 733, 735 (4), 420 S.E.2d 626 (1992) (citations and punctuation omitted). In a civil action, "[f]or an owner of a vehicle to be held liable for injuries that occur due to an unsafe or defective condition of his vehicle, the plaintiff must show not only that the vehicle was being operated with the owner’s consent, but that the owner knew of its defective or unsafe condition." Wilson v. Ortiz , 232 Ga. App. 191, 195 (2), 501 S.E.2d 247 (1998) (citation omitted) (overruled on other grounds by Giles v. State Farm Mut. Ins. , 330 Ga. App. 314, 319 (2) (fn. 2), 765 S.E.2d 413 (2014) ; see generally Jacobs v. Felmet , 105 Ga. App. 234, 236, 124 S.E.2d 307 (1962) ( )(citation omitted); Robinson v. MARTA , 197 Ga. App. 628, 629 (4), 399 S.E.2d 252 (1990) ( ); Almassud v. Mezquital , 345 Ga. App. 456, 458-460 (1), 811 S.E.2d 110 (2018) ( ); Brown v. Shiver , 183 Ga. App....
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