Mann v. Anderson

• Decision Date: 17 November 1992
• Docket Number: No. A92A1141,A92A1141
• Citation: Mann v. Anderson, 426 S.E.2d 583, 206 Ga.App. 760 (Ga. App. 1992)
• Parties: MANN et al. v. ANDERSON et al.
• Court: Georgia Court of Appeals

Page 583

426 S.E.2d 583

206 Ga.App. 760

MANN et al. v.ANDERSON et al.

No. A92A1141.

Court of Appeals of Georgia.

Nov. 17, 1992.

Reconsideration Denied Dec. 16, 1992.

Certiorari Denied April 15, 1993.

Huguenin, Annis & Lewis, David C. Huguenin, Stephen H. Hagler, Martinez, for appellants.

Bouhan, Williams & Levy, James M. Thomas, Wilbur D. Owens III, Savannah, Zorn & Caldwell, William A. Zorn, Jesup, for appellees.

BIRDSONG, Presiding Judge.

Dea Elizabeth Mann and Robert Mann appeal from a judgment based upon a jury verdict in favor of defendantsMichael A. Gutzwiller and Union Camp Corporation.The Manns sued for damages arising from injuries sustained by Dea Mann("Mann") in a multi-vehicle collision.The collision occurred in dense fog, or dense smoke, or a combination of both, when Mann stopped her car because of diminished visibility and later was hit by her car after Gutzwiller's car propelled it into her.

According to Mann, she was driving to work one morning when she encountered what she describes as a dense mixture of fog and smoke that almost completely blocked her vision.She slowed and proceeded ahead until she noticed a car on the shoulder that appeared to be backing up on the roadway.She stopped her car on the roadway next to that car.Shortly after that her car was struck from the rear by Anderson's car, and she got out of her car.She was not injured by this collision, but she did not immediately leave the roadway.Instead, she stood next to her car, and yelled to Anderson, "What do you think you are doing?"Although Anderson hollered to her to get off the roadway, both before and after he parked his own car off the roadway, she stayed there until Holsey's car hit her car and knocked off the driver's door.At this point Mann attempted to seek safety, but before she could do so, Gutzwiller's car struck hers, knocking it forward into and striking her.Mann estimated that it took approximately 10-20 seconds for all this to transpire.

At first, the Manns sued Anderson, Gutzwiller, and Holsey.Then, when they learned that Union Camp had burned some woodlands in the vicinity of the accident, the Manns added Union Camp as a defendant.The amended complaint alleged that Union Camp failed to put out its fire properly and this allowed the fire to cause "heavy smoke to cover the roadway in question causing all of the collisions being complained about."Before trial the Manns dismissed Holsey as a defendant, and during trial they also dismissed Anderson.

The remaining defendants contended that they were not liable, inter alia, because the collision was caused by an act of God and because Mann assumed the risk of her injuries by driving in the fog and by standing in the roadway until it was too late to avoid her injuries.Over the Manns' objections the trial court charged the jury on act of God and assumption of risk.After the jury's verdict for the defendants was incorporated in the judgment and the Manns' motion for a new trial was denied, they brought this appeal.

The Manns contend the trial court erred by charging on the defenses of act of God and assumption of risk because there was no evidence authorizing these charges.They also contend the trial court erred by denying their motion for a new trial based on the giving of these charges.Held:

1.The Manns assert only that the trial court erred by charging on act of God because the evidence showed smoke caused the collision, the smoke was caused by employees of Union Camp, and a charge of act of God is not authorized when human agency contributes to the event.SeeWestern, etc., R. v. Hassler, 92 Ga.App. 278, 88 S.E.2d 559;Ohlen v. Atlanta, etc., R. Co., 2 Ga.App. 323, 58 S.E. 511.

In our law an act of God is "an accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness.This expression excludes all idea of human agency."OCGA § 1-3-3(3).Further, "an act which may be prevented by the exercise of ordinary care is not an act of God."Central Ga., etc., Corp. v. Heath, 60 Ga.App. 649, 652, 4 S.E.2d 700.The Manns argue that under this definition an act of God charge was not authorized because Union Camp was responsible for the smoke that caused the collisions.

While not disagreeing with the Manns' definition of an act of God, Union Camp contends that under the evidence the fog on the morning of the accident meets that definition.Although witnesses on the scene of the accident testified that the fog was unusually dense, they primarily relied upon their sense of smell for stating there was smoke present.Indeed, some testified that their cars smelled of smoke for some time after the accident.

On the other hand, another witness testified that smelling smoke in fog did not mean that smoke was actually present and related an incident in which he also smelled smoke in fog, but then traced the smell to the remains of an old fire.Additionally, a meteorologist testified that fog is a naturally occurring weather condition that alone could reduce visibility to that present on the morning of the accident.This witness further testified that even if smoke was in the fog, the mixture would not necessarily obscure a driver's vision more than fog would alone.Moreover, there was testimony that Union Camp's fires had flamed out,...