McKinney & Co., Inc. v. Lawson

• Decision Date: 07 May 1987
• Docket Number: No. 44041,44041
• Citation: 357 S.E.2d 786,257 Ga. 222
• Court: Georgia Supreme Court
• Parties: McKINNEY & CO., INC. v. LAWSON.

Page 786

357 S.E.2d 786

257 Ga. 222

McKINNEY & CO., INC. v. LAWSON.

No. 44041.

Supreme Court of Georgia.

May 7, 1987.

Reconsideration Denied June 18, 1987.

Second Reconsideration Denied July 8, 1987.

David A. Handley, Smith, Gambrell & Russell, Hugh M. Worsham, Jr., Hishon & Ranney, Atlanta, for McKinney & Co., Inc.

James Lee Ford, Ford & Haley, Charles H. Davis, Jr., Atlanta, for Kathleen A. Lawson.

Gene MacWinburn, President, Georgia Trial Lawyers Assoc., Atlanta, for amicus curiae.

WELTNER, Justice.

Kathleen Lawson was struck by an automobile as she was attempting to go around a growth of tree branches which blocked a public right-of-way, and which extended out into the street. She brought an action against the motorist and against the landowner upon whose property the trees grew. A jury found no negligence on the part of the motorist, but found negligence on the part of the landowner and returned a verdict in favor of Lawson in the amount of $350,000.00. The Court of Appeals affirmed the trial court, McKinney & Co., Inc. v. Lawson, 180 Ga.App. 550, 349 S.E.2d 763 (1986). We granted certiorari to determine whether the landowner's liability was governed by our holding in International Paper Realty Co. v. Bethune, 256 Ga. 54, 344 S.E.2d 228 (1986), and to consider whether the verdict was excessive.

1. Lawson was twenty-nine years of age at the time of her injury. Her testimony indicates that on between one hundred seventy to one hundred ninety occasions, when morning rush hour traffic was heavy, she knowingly left the safety of the shoulder to go into a public street "several feet" in order to go around branches which blocked her vision of approaching traffic, and which obscured her from the vision of approaching motorists. While she testified that she was "forced" to go out into the street in order to get around the branches we can find no evidence that anyone or any circumstance required her to take the action which resulted in her injuries. Nor can it be said from the evidence that Lawson was ignorant of the danger to which, repeatedly, she subjected herself.

2. The fact that the tree branches blocked passage along the right-of-way was known to Lawson the first time she walked along the south side of Collier Road. The branches constituted a static condition, were not inherently dangerous in and of themselves, and they did not change materially during the ten months Lawson detoured around them. Her knowledge of the risks involved was, at the least, equal to any knowledge attributable to the landowner. The negligence of Lawson came within a micron of the quantum of any negligence on the part of the landowner. An extract of the factual circumstances is set out in footnote 1. ¹

3. Lawson's special damages did not exceed $4,500.00. By the time of trial, approximately three years after her injury, she had changed employers and was earning slightly more in salary than when she was injured. There is no question but that Lawson received a painful injury when her right leg was broken, and that this injury resulted in some disability. She may have some medical expenses in the future.

4. "The question of damages is one for the jury; and the court should not interfere with the jury's discretion unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias." OCGA § 51-12-12.

"After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict." Boatright v. Rich's, Inc., 121 Ga.App. 121, 173 S.E.2d 232 (1970). After indulging in every presumption and inference in favor of the verdict, we still must conclude that the verdict in this case resulted from gross error. We come to this conclusion from our analysis of the evidence, which, viewed in the light most favorable to Lawson, shows that her own negligence must be considered as at least 49% of the causation of her injury. Hence, in view of the amount of the verdict, we determine that the jury failed to compare Lawson's obvious negligence with that of the landowner, and failed to reduce recovery accordingly. OCGA § 51-11-7. Central of Georgia Railroad Co. v. Wooten, 163 Ga.App. 622, 295 S.E.2d 369 (1982).

Judgment reversed.

All the Justices concur, except BELL, J., who concurs in the judgment only, and CLARKE, P.J., and SMITH and GREGORY, JJ., who dissent.

SMITH, Justice, dissenting.

"Pedestrians have the right to use the entire highway and are not confined to the sidewalks alone. If a pedestrian leaves the sidewalk and enters upon the portion of the highway devoted primarily to vehicles, the surroundings may require of him the exercise of a greater amount of care and caution for his own protection than if he had remained upon the sidewalk; but the question of his negligence under the circumstances is one for the jury." (Emphasis supplied.) William Bensel Const. Co. v. Homer, 2 Ga.App. 369, 58 S.E. 489 (1907). The question of negligence on the part of Ms. Lawson was for the jury to decide, and they decided in her favor.

To have a thorough understanding of this case, one must look at the case from its inception. In Ms. Lawson's initial complaint she alleged, among other things, that "[t]he unlawful interference with a right of way or a right of common constitutes a trespass to the party entitled thereto." OCGA § 51-9-10. During the trial the appellee's theory, and the theory followed by the trial court was that the appellee had a right to be on the right-of-way, that the appellant had an affirmative duty not to obstruct the right-of-way, and that the appellee's actions were reasonable under all the circumstances. The jury was given charges relating to the appellant's negligence, proximate cause, Ms. Lawson's negligence, and assumption of the risk. The jury was charged with OCGA § 51-9-10, Id., and when the jury returned with a question it was recharged as follows: "Under the laws of the State of Georgia it is unlawful for anyone to obstruct or encroach upon any part of any public road. The Official Code of Georgia also provides in part as follows: The unlawful interference with a right of way or a right of common constitutes a trespass to the party entitled thereto." The majority states that the tree which grew on the appellant's property "blocked a public right of way, and ... extended out into the street[,]" thus the unlawful interference constituted a trespass to Ms. Lawson.

The Court of Appeals correctly stated that this case " 'does not turn on the issue of a landowner's liability to an invitee.' " McKinney v. Lawson, 180 Ga.App. 550, 551, 349 S.E.2d 763 (1986). The appellant was, pursuant to OCGA § 51-9-10, a trespasser on Ms. Lawson. Ms. Lawson had a right to be on the right-of-way and the appellant had a special duty not to obstruct the right-of-way. The appellant's breach of that duty caused the type of harm that the statute was designed to prevent. The law relating to invitees as set out in division two of the majority opinion has no bearing on this case. "If the defendant's negligence has made the plaintiff's exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in so doing unless he acts unreasonably." Restatement of Torts 2d § 473.

The issue of Ms. Lawson's negligence or lack thereof was decided by the jury in her favor. The trial judge who listened to all of the evidence and observed the demeanor of the witnesses agreed and denied the appellant's motion for a directed verdict. The Court of Appeals examined the negligence issue and stated that "[t]he evidence in the case sub judice did not demonstrate that [Ms. Lawson] was at fault as a matter of law." McKinney v. Lawson, 180 Ga.App. 550, 349 S.E.2d 763 (1986). The issue of Ms. Lawson's negligence or lack thereof was settled, but the majority of this court defies "the well established rule that questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases. See Howard v. Savannah Elec. Co., 140 Ga. 482 (79 SE 112); Blanton v. Doughty, 107 Ga.App. 91, 95 (129 SE2d 376) [ (1962) ]; 16 West's Ga.Dig., Negligence, § 136(14)." (Emphasis supplied.) Bussey v. Dawson, 224 Ga. 191, 193-194, 160 S.E.2d 834 (1968). This obviously is not a "plain and indisputable case." Id.

Furthermore, the majority found "that the jury failed to compare [what it terms] Lawson's obvious negligence with that of the landowner, and failed to reduce recovery accordingly." There is absolutely no evidence that the jury failed to compare Ms. Lawson's negligence with that of the landowner, and failed to reduce recovery accordingly. The jury was fully and completely charged on the negligence of both the appellant and Ms. Lawson. One of the very first charges the jury heard was as follows: "The law puts the burden of proof upon [Ms. Lawson] to prove by a preponderance of the evidence that she is entitled to recover. However, when the defendant sets up an affirmative defense such as contributory negligence, comparative negligence and assumption of the risk by [Ms. Lawson], the burden of proof rests on the defendant to establish the truth of such affirmative defenses by a preponderance of the evidence."

The charge the trial court gave the jury relating to the law of negligence as applied to the appellee covered four pages. Part of the charge was as follows:

"I charge you that [Ms. Lawson] cannot recover regardless of any negligence on the part of the defendants if you find [that she] assumed the risk involved. One assumes the risk of danger when one voluntarily places one's self in a position where it is likely to strike. One who observes a clearly obvious danger and who fails to exercise that degree of care which is...