Ken Thomas of Georgia, Inc. v. Halim, A03A2120.

• Decision Date: 25 March 2004
• Docket Number: No. A03A2120.,A03A2120.
• Citation: 266 Ga. App. 570,597 S.E.2d 615
• Parties: KEN THOMAS OF GEORGIA, INC. v. HALIM.
• Court: Georgia Court of Appeals

266 Ga. App. 570

597 S.E.2d 615

266 Ga.App. 570

KEN THOMAS OF GEORGIA, INC. v. HALIM.

No. A03A2120.

Court of Appeals of Georgia.

March 25, 2004.

Certiorari Denied September 7, 2004.

Swift, Currie, McGhee & Hiers, L.L.P., Charles B. Marsh, Anandhi S. Rajan, Atlanta, for appellant.

Slater & King, Cary S. King, Atlanta, for appellee.

ANDREWS, Presiding Judge.

Kabir Halim sued for injuries he allegedly suffered when Koreem Campbell, the driver of the car in which he was riding as a passenger, lost control of the car and crashed. The car was owned by Ken Thomas of Georgia, Inc. d/b/a Ken Thomas BMW Acura (Ken Thomas), which loaned the car to Campbell to use while Ken Thomas serviced Campbell's car. Halim sued Campbell and Ken Thomas claiming that Campbell recklessly drove the car off the road at a high rate of speed causing it to flip over numerous times, and that Ken Thomas negligently entrusted the car to Campbell. After deposing Campbell, Halim dropped the negligent entrustment claim against Ken Thomas and alleged that the crash occurred because "the steering on the vehicle pulled sharply to the left causing the vehicle to enter the median and flip over multiple times." Based on the allegation that a malfunction in the car's steering caused the accident, Halim added claims against Ken Thomas that the car was unsafe to drive and that Ken Thomas negligently failed to maintain or repair the car and negligently failed to warn of its unsafe condition. Halim also added a claim alleging that, even if there was a lack of evidence to establish his negligence claims, Ken Thomas was liable for his injuries under the doctrine of res ipsa loquitur. The trial court granted Ken Thomas's motion for summary judgment on Halim's claim based on res ipsa loquitur, but denied the motion as to the negligence claims. We granted Ken Thomas's application for an interlocutory appeal from the partial denial of its motion. For the following reasons, we find the trial court erred by denying Ken Thomas's motion for summary judgment and reverse.

In support of his negligence claims against Ken Thomas, Halim relies on Campbell's deposition testimony. Campbell testified that at his request Ken Thomas gave him a loaner car while his car was being serviced. Campbell said he drove the loaner car about 20 miles from the Ken Thomas dealership to Fort Benning, where he and Halim were stationed as members of the U.S. Army, then picked up Halim as a passenger and drove back to the dealership in response to a call about the service on his car. The accident occurred as Campbell and Halim were driving back to Fort Benning from the dealership. Campbell was asked if he noticed any problems while driving the loaner car prior to the accident.

Q. Did you detect anything at all in the car while you were driving it that gave you reason for concern?

A. No.

Q. Were there any problems with the brakes?

A. Not to my recollection.

Q. Were there any problems with the rear end or the front end that you noticed?

A. No.

Q. Were there any unusual noises at all?

A. No.

In describing the accident Campbell further testified that:

A. [I]t was going straight, and then all of a sudden it just — I didn't hear any — I don't know what happened. It just popped and went to the side of the road.... The steering wheel pulled to the left ... [e]nough that I couldn't control it.... [I]t just shot to the left where, I mean, I really couldn't control it.... [The steering wheel] jerked real vigorously to the left.

Emphasizing the sudden nature of the malfunction, Campbell also testified that, prior to the accident, he did not notice any problem with the car's steering.

A traffic accident investigator stationed at Fort Benning arrived at the accident scene as Campbell and Halim were being taken away by ambulance. The investigator interviewed Campbell the day after the accident and stated that Campbell made no mention of a steering problem with the car. Based on his investigation, including interviews with two eyewitnesses to the accident, the investigator concluded that Campbell "lost control of his vehicle on a curve due to his failure to pay attention to the roadway and his excessive rate of speed." Nevertheless, as the party opposing summary judgment on the negligence claims, Halim is entitled to have the evidence and all reasonable inferences therefrom construed in his favor, so for the purpose of ruling on the summary judgment motion we assume based on Campbell's deposition testimony that a sudden steering malfunction in the car was at least a contributing cause of the accident. Lau's Corp. v. Haskins, 261 Ga. 491, 495, 405 S.E.2d 474 (1991).

In addition to Campbell's testimony about a sudden steering malfunction, Halim contends that records showing Ken Thomas's repairs and maintenance on the car prior to the accident support his negligence claims. Those records show that, about two years prior to the accident at issue, the loaner car was involved in an accident when it was a new car owned by Ken Thomas. The car incurred about $3,500 in damages in the prior accident, almost all of which was paint and body work. The evidence shows that Ken Thomas repaired the car after the accident and used it as a loaner car for over two years until the present accident. At one point, Ken Thomas sold the car to a customer without revealing it had been in an accident, but for unstated reasons the customer was "not happy" with it, and Ken Thomas took it back shortly after the sale and gave the customer another car. Halim points out that the repair records are unclear as to whether or not the car may have sustained damage to a left rear knuckle in the prior accident, and that it is unclear whether or not this damage was repaired. However, Ken Thomas provided an affidavit from an expert automobile mechanic, who worked on the Acura loaner car at issue and other Acura cars at the Ken Thomas dealership, that the knuckle referred to was a part that attached to the rear wheel bearing allowing the wheel to turn and that, regardless of whether it was damaged or replaced, it had no impact on the car's steering. Moreover, Ken Thomas's maintenance records on the loaner car after the first accident up until the accident at issue show there were no complaints by customers about any steering problem with the car, nor did any Ken Thomas employee discover a steering problem with the car or make repairs to any steering or steering related parts of the car in the course of performing regularly scheduled maintenance. The records show that one customer who used the car as a loaner over a year prior to the present accident complained about tire noise. In response to that complaint, new tires were put on the car. About a week later another customer complained of a humming noise coming from the rear of the car. The expert mechanic stated by affidavit that he inspected the car in response to this complaint, determined that the left rear wheel bearing was worn, and replaced it. A four-wheel alignment was also performed at that time. Maintenance records show that about a month later the loaner car passed a complete safety inspection test performed by the same mechanic, including a road driving test. The only other customer complaint about the loaner car involved a broken cupholder. About six months prior to the present accident, Ken Thomas performed scheduled maintenance on the loaner car, which included a road test in which no unusual steering behavior was reported. At that point, the car had 21,925 miles on the odometer, and the 22,500-mile service check performed by Ken Thomas included tire rotation and balancing, inspection of the suspension system and tightening of all suspension bolts and mounts, and inspection of the drive axles, boots, cooling system, exhaust system, fuel lines and connections, and the vehicle underbody.

The above facts provide direct evidence that a sudden steering malfunction caused or contributed to the accident, but they provide no direct evidence to support Halim's claim that the steering malfunction occurred because Ken Thomas negligently maintained or repaired the car. Rather, Halim claims these facts provide circumstantial evidence sufficient to support a reasonable inference that Ken Thomas either negligently repaired the car in a manner that caused the steering malfunction, or that Ken Thomas was negligent because it failed to discover and repair the steering malfunction to maintain the car in a safe condition. Before addressing the issues relevant to these claims, it is instructive to note why on the above facts the trial court correctly granted summary judgment to Ken Thomas on Halim's res ipsa loquitur based claim.

Res ipsa loquitur is an evidentiary based rule which provides for an inference of negligence to arise from the occurrence of an injury-causing incident when the following elements are present:

(1) injury of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

(Citations and punctuation omitted.) Bridgestone Firestone v. Green, 198 Ga.App. 858, 861, 403 S.E.2d 442 (1991). Even if element (2) was present because Ken Thomas had exclusive control of the maintenance and repair of the car, the doctrine was inapplicable in the present case because elements (1) and (3) were not present. As to element (3), there was evidence that negligent driving by Campbell may have caused the accident. And element (1) was not present because the steering malfunction could have occurred for reasons other than negligent maintenance or repair by Ken Thomas. In other words, an injury allegedly caused by a mechanical failure in a car is not of a kind that does not occur in the absence of someone's negligence. Smith v. U-Haul Co. Ga., 225...