Metro. Atlanta Rapid Transit Auth. v. Morris

• Decision Date: 16 November 2015
• Docket Number: No. A15A1609.,A15A1609.
• Citation: 779 S.E.2d 726,334 Ga.App. 565
• Parties: METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. MORRIS et al.
• Court: Georgia Court of Appeals

334 Ga.App. 565

779 S.E.2d 726

METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY

v.MORRIS et al.

No. A15A1609.

Court of Appeals of Georgia.

Nov. 16, 2015.

Certiorari Denied Feb. 22, 2016.

Vincent DeVaughn Hyman, Atlanta, for Appellant.

Katherine Leigh Jackson, Charles Henry McAleer, Decatur, for Appellee.

MILLER, Judge.

Kimberly Morris and Marlon Hatchett filed a personal injury suit against the Metropolitan Atlanta Rapid Transit Authority ("MARTA"), alleging that it was vicariously liable for the negligence of an unidentified MARTA bus driver who struck their vehicle. Following a trial, the jury returned a verdict for the plaintiffs. MARTA appeals, contending that (1) the trial court erred in denying its motion for directed verdict, (2) the trial court erred in refusing to instruct the jury on the plaintiffs' negligence, and (3) the jury was not authorized to award attorney fees. For the reasons that follow, we affirm.

Construed in favor of the verdict,¹ the evidence shows that on November 19, 2011, Morris and Hatchett arrived in Atlanta and checked into their hotel on Peachtree Street. They left the hotel and had dinner at a restaurant. At dinner, Morris had one margarita. After dinner, around 10:30 p.m., they drove back toward the hotel.

Morris was driving south on Peachtree Street when she stopped at a red light at the 14th Street intersection. Morris was in the right-hand lane. A MARTA bus was in the lane to her left. The bus had "MARTA" and "Five Points" written on the side of it, and there is a MARTA bus route that travels on Peachtree Street from Lenox Station to Five Points. There is only one MARTA corporation and only MARTA bus operators are permitted to drive MARTA buses. The bus was driven by a man wearing a white shirt and black pants, and a MARTA supervisor informed Morris that all MARTA bus drivers wear white shirts and black pants.

When the light turned green, both Morris and the MARTA bus began to proceed through the light. The MARTA bus veered into the right lane and sideswiped Morris's vehicle, causing it to hit the curb. The bus pulled over into the right-hand lane and then stopped at the MARTA bus stop at the next corner. At the bus stop, passengers got on and off the bus. The bus then left the area. Both Hatchett and Morris sustained injuries and Morris's car was damaged.

Hatchett called 911. MARTA police arrived on the scene and, about 45 minutes after the accident, a MARTA supervisor arrived. Eventually, an Atlanta Police Department officer arrived and completed an investigation. The officer saw no evidence that Morris was intoxicated and administered no field sobriety tests.

At trial, a passerby, who rode MARTA everyday, testified that she was walking on Peachtree Street when she heard a crash and then saw a MARTA bus drive by Morris's vehicle and tear off the front bumper. The bus had MARTA markings, including three colored stripes. Another witness to the accident was not available at trial, but his previous statement to a MARTA claims representative was read at trial and the videotape of his deposition was played for the jury. That witness also observed the MARTA bus sideswipe Morris's vehicle.

1. MARTA contends that the trial court erred as a matter of law in denying its motion for directed verdict because the plaintiffs failed to prove vicarious liability and negligence. We discern no error.

On appeal from the denial of a motion for a directed verdict, we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict. However, we review questions of law de novo.

(Citation and punctuation omitted.) Cumberland Contractors, Inc. v. State Bank and Trust Co., 327 Ga.App. 121, 122, 755 S.E.2d 511 (2014).

(a) As an initial matter, MARTA argues that the trial court erred in relying on hearsay testimony in denying its motion for a directed verdict. We disagree.

(i) Statement of MARTA Supervisor.

MARTA argues that the trial court erred in relying on Morris's hearsay statement that, after she described the driver's appearance and clothing to the MARTA supervisor who responded to the scene, the supervisor told her that all MARTA bus drivers wear white shirts and black pants. MARTA did not object to Morris's testimony at trial. Pursuant to the new Evidence Code, which went into effect in January 2013, almost two years before the trial in this case, "if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible." OCGA § 24–8–802. Accordingly, the supervisor's statement was properly admitted. See id.

(ii) Eyewitness's Deposition Testimony.

MARTA also argues that the trial court erred in relying on the deposition testimony of one of the eyewitnesses who identified the bus as a MARTA bus because the witness only learned that Atlanta municipal buses were called MARTA busses after the accident. Any error in relying on this testimony was harmless since Morris, Hatchett and the other eyewitness also identified the bus as a MARTA bus. See Fortner v. Town of Register, 289 Ga.App. 543, 547(1), 657 S.E.2d 620 (2008) (admission of incompetent evidence is harmless when cumulative of other legally admissible evidence).

(b) MARTA argues that the trial court erred in denying its motion for a directed verdict because the plaintiffs failed to prove that MARTA owned the bus that hit them, that the driver was a MARTA employee and that the driver was acting in the course and scope of his employment. We disagree.

"When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master." (Citation omitted.) Hicks v. Heard, 286 Ga. 864, 865, 692 S.E.2d 360 (2010).

A vehicle's insignia, alone, is insufficient to show ownership of that vehicle or that is was operated in the course and scope of employment. See Sellers v. Air Therm Co., 231 Ga.App. 305, 307–308, 498 S.E.2d 167 (1998) (evidence that vehicle that hit plaintiff bore defendant's name and logo was insufficient to establish that hit-and-run driver was an employee of defendant or was driving vehicle in the course and scope of his employment, as required to establish plaintiff's vicarious liability claim). Here, there was not only evidence that the bus was marked as a MARTA bus, but there was also undisputed evidence that the driver was wearing the same outfit that would be worn by a MARTA bus driver, evidence that only MARTA bus drivers are permitted to operate MARTA buses, and, most importantly, evidence that the driver let passengers on and off at a MARTA bus stop immediately after the accident.² This evidence was sufficient to establish that the bus driver was a MARTA employee acting in the scope of his employment and was sufficient to support the jury's verdict. Accordingly, the trial court did not err in denying MARTA's motion for a directed verdict.³

(c) MARTA also argues that the trial court erred in denying its motion for a directed verdict because there was no evidence showing that the bus driver was negligent. Again, we disagree.

In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury. As to the issue of legal duty, the Uniform Rules of the Road require that a driver maintain and control the vehicle within the lane and not run off the roadway. The failure to maintain such control may be negligence per se.

(Citations and punctuation omitted.) Vaughan v. Glymph, 241 Ga.App. 346, 348, 526 S.E.2d 357 (1999). Both Morris and Hatchett testified that the bus driver failed to maintain his lane. This evidence was sufficient to establish negligence on the part of the driver and was sufficient to support the jury's verdict. See OCGA § 24–14–8 ; see also Smith v. Carter, 305 Ga.App. 479, 480(1), 699 S.E.2d 796 (2010) ("testimony of a single witness is generally sufficient to establish a fact") (citation and punctuation omitted).

2. MARTA contends that the trial court erred in refusing MARTA's request to charge the jury, pursuant to OCGA § 51–12–33, that it could apportion liability to the plaintiffs. We disagree.

"A charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject." (Citation omitted.) Hendley v. Evans, 319 Ga.App. 310, 311(2), 734 S.E.2d 548 (2012).

Here, MARTA requested that the trial court instruct the jury that it must determine the percentage of the plaintiffs' fault, if any, and that the plaintiffs were not entitled to recover any damages if the plaintiffs were 50 percent or more responsible for the injury or damages, and if the plaintiffs were less than 50 percent responsible for any injury or damages, then the jury was to apportion the total damage award. See Suggested Pattern Jury Instructions, Vol. 1: Civil Cases (5th ed.), §§ 60.140; 60.141. MARTA also requested that the trial court give the following instruction:

Where an action is brought against one or more persons for injury to person or property and the plaintiffs are to some degree responsible for their injuries or damages claimed, the trier of fact (which is you the jury) in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiffs and the judge shall reduce the amount of damages otherwise awarded to the plaintiffs in proportion to their percentage of fault.

The trial court found that there was no evidence that contradicted the plaintiffs' testimony that the bus veered into their lane and refused to give the requested instructions.

Pursuant to OCGA § 51–12–33(a), where "the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its...