Menendez v. Jewett
| Decision Date | 12 July 1990 |
| Docket Number | No. A90A0427,A90A0427 |
| Citation | 196 Ga.App. 565,396 S.E.2d 294 |
| Parties | MENENDEZ v. JEWETT. |
| Court | Georgia Court of Appeals |
Barrow, Sims, Morrow & Lee, R. Stephen Sims, Savannah, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Atlanta, for appellant.
Randall G. Levine, Savannah, Charles R. Ashman, Jeffrey W. Lasky, Savannah, David S. Bills, Atlanta, Don C. Keenan, Savannah, for appellee.
Karen Menendez was the driver of an automobile which failed to negotiate a curve and struck a telephone pole. Her passenger, Bradley Jewett, was injured and sued her.
Menendez met Jewett, an acquaintance, at a lounge one evening. They socialized with mutual friends and acquaintances for several hours, until the bar closed. Jewett's friends urged that he not attempt to drive home because he appeared to be under the influence of alcohol and suggested that appellant drive him home. A jury, by special interrogatory, found that Jewett was 40 percent contributorily negligent and awarded him $267,916. On a motion for additur, the court increased the award by the 40 percent deduction and entered judgment accordingly.
If the evidence entitled defendant to such a charge, no harm resulted from its omission. The reason is that the jury found that the proximate cause of the wreck and consequently of plaintiff's injuries were the combined negligence of defendant driver (60 percent of the cause) and of plaintiff passenger (40 percent of the cause).
Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 668, 88 S.E.2d 6 (1955); Doctors Hosp. of Augusta v. Poole, 144 Ga.App. 184, 185(2), 241 S.E.2d 2 (1977); Johnson v. Jackson, 140 Ga.App. 252, 258(5)(a), 230 S.E.2d 756 (1976). The jury's finding as fact not only that a proximate cause, but the predominant proximate cause, was defendant's negligence precluded application of assumption of the risk because it would have required an inconsistent finding. Comparative or contributory negligence and assumption of the risk are mutually exclusive, although relative, theories. See Osburn v. Pilgrim, 246 Ga. 688, 695, 273 S.E.2d 118 (1980). In the former, both constitute "legal cause," whereas in the latter, the plaintiff's is the legal cause. See Laseter v. Clark, 54 Ga.App. 669, 670(1), 189 S.E. 265 (1936).
One of the issues was his perception in choosing to ride with defendant Menendez. Was he an innocent victim or not? The fact that his blood alcohol content was .14 soon after he made that choice would tend to show that his understanding, appreciation, and judgment concerning Menendez' condition and the wisdom of riding with her was voluntarily impaired. It would also tend to cast doubt on, if not impeach, his testimony that in his view at the time, she was "fine" and capable of driving safely.
Lovejoy v. Tidwell, 212 Ga. 750, 751, 95 S.E.2d 784 (1956). Baker v. State, 246 Ga. 317, 319, 271 S.E.2d 360 (1980).
The evidence that plaintiff's blood alcohol content was .14, the same as defendant's, rendered him presumptively under the influence of alcohol such that he was prohibited from driving. OCGA §§ 40-6-392, 40-6-391. That his condition negatively affected his perception made less probable the validity of his trial testimony about it. In addition, it skewed and shadowed his judgment in choosing to ride with Menendez.
Nevertheless, the verdict and judgment would not be reversible on this ground because this circumstantial evidence of his condition was cumulative of the undisputed evidence from himself and others that he was too drunk to drive, having had by his own testimony six or seven beers between 11:00 p.m. and about 2:30 a.m., so much so that his companions took away his motorcycle keys and helmet, without his objection. Thomas v. Statewide Beverage Equip., 152 Ga.App. 293, 295(4), 262 S.E.2d 575 (1979).
3. No reversible error occurred in excluding evidence of Jewett's non-usage of a seat belt. City of Fairburn v. Cook, 188 Ga.App. 58, 67, 372 S.E.2d 245 (1988), decided before passage of Georgia's seat belt law, OCGA § 40-8-76.1, held that lack of probative evidence demonstrating that an automobile accident victim would not have been injured had he been wearing his seat belt precluded jury consideration of that issue. See also Katz v. White, 190 Ga.App. 458, 379 S.E.2d 186 (1989), another case decided prior to the effective date of OCGA § 40-8-76.1.
Jewett's attending physician testified that he was a board-certified emergency physician, but he had no formal training as to the relationship of the use of seat belts to injuries. He was familiar with articles in medical journals stating there was a relationship, and his experience as an emergency room physician led him to believe that seat belts helped prevent serious injuries in automobile accidents. The trial court, however, did not find him to be an expert witness and declined to admit evidence that Jewett was not wearing his seat belt. Qualification as an expert rests entirely within the sound discretion of the trial judge. Braggs v. State, 189 Ga.App. 275, 276, 375 S.E.2d 464 (1988).
4. Jewett's divorce decree was properly excluded from evidence. He did not claim that the injuries he sustained in the accident caused his divorce or that he was entitled to damages because of divorce. His former wife made no claim for loss of consortium.
5. Finally, granting the additur was erroneous.
The jury found that plaintiff himself was negligent and that his negligence contributed to the proximate cause of the wreck and his becoming injured. It compared his negligence with defendant's and found that his accounted for forty percent. The jury's request for further instructions on computing percentages, after it had been deliberating about an hour and a half, confirms that it early on found both parties to be negligent under the circumstances. After being reinstructed, it reached the verdict in less than ten minutes.
The court must not interfere with the jury's verdict, a unanimous decision by twelve impartial people, unless it is "so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case." OCGA § 51-12-12. The court concluded that the verdict was inadequate as a matter of law because the jury found negligence on the part of plaintiff which contributed proximately to the damages, whereas there was no evidence of such. The court came to this conclusion by...
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...Coca-Cola). 15. (Punctuation omitted.) Shelton v. State, 214 Ga.App. 166, 168(2), 447 S.E.2d 115 (1994), citing Menendez v. Jewett, 196 Ga.App. 565, 569(5), 396 S.E.2d 294 (1990). 16. Johnson v. State, 277 Ga.App. 499, 503(1)(a), 627 S.E.2d 116 (2006) (defendant's flight is circumstantial e......
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...plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. [Cits.]" Menendez v. Jewett, 196 Ga.App. 565, 566, 396 S.E.2d 294 (1990). "A person cannot undertake to do what obviously is a dangerous thing, even if he is directed by another, without assumi......
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