Perry v. Lyons

• Decision Date: 27 May 1971
• Docket Number: Nos. 46007-46030,No. 3,46032-46034,s. 46007-46030,3
• Citation: 124 Ga.App. 211,183 S.E.2d 467
• Parties: Simon PERRY v. George J. LYONS et al. and 26 Related Appeals and Cross Appeals
• Court: Georgia Court of Appeals

Page 467

183 S.E.2d 467

124 Ga.App. 211

Simon PERRY v. George J. LYONS et al. and 26 Related Appeals and Cross Appeals.

Nos. 46007-46030, 46032-46034.

Court of Appeals of Georgia, Division No. 3.

May 27, 1971.

Rehearing Denied June 17, 1971.

Certiorari Denied Oct. 21, 1971.

Syllabus by the Court

1. (a) The evidence adduced on the various motions for summary judgment

present genuine issues of material fact as to which, if any, of the original defendants negligently caused a blockade of traffic on a fog-shrouded bridge.

(b) The evidence also presents jury questions as to the proximate cause of the deaths and injuries complained of.

2. No error appears in the granting of summary judgment to third party defendants, Myers, Greene, Adams and Smith, since the evidence establishes no negligence on their part.

The Sidney Lanier Bridge in Glynn County is a four-lane, high-level drawbridge on U.S. Highway #17 over the Brunswick River on the south side of Brunswick. The two northbound lanes and the two southbound lanes are divided by a raised concrete median strip, and the outside lanes are bounded by a railing and raised walkway.

On January 30, 1968, at about 8 a.m., this bridge and the surrounding area were enveloped in fog. The fog was particularly dense nearer the river, so that drivers of vehicles on the bridge had maximum visibility of one or two car lengths. With these conditions prevailing, a series of collisions occurred in the northbound lanes on the south side of the bridge which involved, directly or indirectly, fourteen vehicles. Several persons were killed or injured, and as a result several damage suits were filed.

The essential allegations of all the complaints are similar, and the various complaints will be treated together. Utilizing the sequential numbering system of the vehicles employed by counsel throughout the course of this litigation, the basic allegations are that #2 (Wyatt) collided with the rear of #1 (Myers); #3 (Ward) collided with the rear of #2; Ward then left his vehicle, #3, in the lefthand lane, blocking it; #4 (Lyons) collided with the rear of #3, then pulled into the righthand lane, blocking it; #5 (Divinagracia) collided with the rear of #4; #6 (Hoover) collided with the rear of #5; then #7 (Greene), #8 (Cash), #9 (McMillian), #10 (Adams), #11 (Smith), #12 (Fisher), and #13 (Morse) all stopped their vehicles within the range of their visibility without colliding with the vehicles ahead of them; that almost immediately thereafter, a heavily loaded tractor-trailer (#14) driven by Wright approached at a high rate of speed, ran into the rear and over #13 (Morse), continued on and struck #12 (Fisher), propelling #12 into #11 (Smith). The tractor-trailer (#14), #13 (Morse) and #12 (Fisher) exploded into flames, killing one person in #13 and two persons in #12. The driver of #11 (Smith) was allegedly injured. The bases of these complaints are the deaths and injuries sustained by persons in #13, #12, and #11.

Named as defendants by the various plaintiffs were Wyatt (#2), Ward and his principal (#3), Lyons (#4), Divinagracia (#5), Hoover (#6), and Wright and his principal (#14). It was alleged that the defendants caused a chain of events to occur and that each individual act, beginning with the initial act of Wyatt (#2) striking the rear of #1 until the final act by Wright (#14), contributed to and was the direct, concurrent and proximate cause of the deaths and injuries. Numerous specifications of negligence were set forth. Wyatt (#2) filed third party complaints against various of the other drivers, and the original defendants and various third party defendants moved for summary judgment. The trial court denied summary judgment to original defendants Wyatt (#2) and Ward and his principal (#3), but granted summary judgment to original defendants Lyons (#4), Divinagracia (#5), and Hoover (#6). Summary judgment was also granted to third party defendants Myers (#1), Greene (#7), Adams (#10), and Smith (#11). All 27 of these appeals and cross appeals relate to the granting or denial of these motions for summary judgment, and, because of common questions, all are treated together in this opinion.

J. S. Hutto, Brunswick, for Perry, Smith & Williams.

Conyers, Fendig, Dickey, Fendig & Whelchel, Albert Fendig, Jr., Brunswick, for Hoover & Lyons.

Falligant, Doremus, Karsman & Maurice, Ogden Doremus, Savannah, for Wyatt.

Hitch, Miller, Beckmann & Simpson, Luhr G. C. Beckmann, A. Martin Kent, Savannah, for Myers.

Brannen, Clark & Hester, Perry Brannen, Sr., Savannah, for Greene.

Adams, Adams, Brennan & Gardner, Edward T. Brenan, Sam P. Inglesby, Jr., Savannah, for Ward & Tropical Uniforms.

Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, for Morse.

Nightingale, Liles & Dennard, B. N. Nightingale, Brunswick, for divinagracia.

EBERHARDT, Judge.

The basic theory of these claims is that defendants Wyatt (#2), Ward (#3), Lyons (#4), Divinagracia (#5), and Hoover (#6) negligently collided with the automobiles in front of them, or otherwise negligently stopped on the bridge, causing a blockade of the northbound lanes in a dense fog. Thereafter, vehicles 7 through 13 were able to stop without colliding but it is contended that they could not move because the first five defendants had negligently blocked the traffic, that within seconds the tractor-trailer driven by Wright collided in the fog with the vehicles stopped because of the blocked traffic lanes, and that the negligence of Wright combined and concurred with the negligence of the first five defendants proximately to cause the injuries and damages complained of. The basic contentions of Lyons (#4), Divinagracia (#5), and Hoover (#6), to whom summary judgment was granted, are that they were not negligent in the first instance, or, if jury questions are presented as to their negligence, that the negligence of Wright, who crashed into the rear of the stopped vehicles, must, as a matter of law, be deemed the superseding cause of the injuries, thereby insulating the first defendants from liability. Wyatt (#2) and Ward (#3), to whom summary judgment was denied, make similar contentions and in addition urge that if they are not entitled to summary judgment, then neither the other three of the first defendants nor the third party defendants are so entitled.

1. (a) If the reader can envision a record approximately 4 1/2 feet thick with the number of affidavits and depositions that implies; a time lapse which the witnesses estimate at between three and ten or at most fifteen minutes, during which fourteen vehicles drove onto the bridge and successive impacts occurring under conditions of practically zero visibility, so that each witness is relating his recollection or impression as it existed at a given moment within his limited area of visibility in a sporadically changing scene so that upon oral argument counsel found it necessary to string a series of diagrams from railing to railing in the court room to illustrate the infinitely varying and conflicting accounts of the witnesses-it may well be understood as an understatement that the evidence as to vehicles 2 through 6 is in some respects conflicting and confusing. At best the result of the several accounts affords an adumbration of what occurred, and unresolved questions of fact exist as to whether the drivers of vehicles 2 through 5 negligently collided with #1 and with each other, and which of these vehicles contributed to the traffic blockage and in what manner. As to Hoover in #6, the evidence shows that she stopped in the left lane without colliding with any vehicle; however, the evidence is conflicting whether she was forced to stop because a part of the previous wreckage was in the left lane or because she was blocked by an unidentified 'mystery' automobile, or whether, on the other hand, she was not forced to stop but did so under circumstances which would constitute a violation of Code Ann. § 68-1670(a, 13). It appears safe to say only that through a series of collisions or other stopping involving vehicles 2 through 6, both northbound lanes became blocked and further traffic could not proceed. It may take the hot breath of a jury verdict to dissipate the fog surrounding that unfortunate scene to reveal which, if any, of the persons responsible for these vehicles were negligent in colliding, stopping, or other conduct so as to create a blockade; and, unless the negligence of Wright in speeding into the stopped vehicles on the fog-shrouded bridge is deemed, in law, to be the superseding cause of the injuries, none of these defendants (#2 through #6) is entitled to summary judgment.

(b) 'A superseding cause in an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about. An intervening force may be either a superseding or concurrent cause of injury, depending upon a number of causative factors involved. It may be either dependent upon or * * * independent of the original negligent act, and yet be such that, except for the existence of both negligent acts, the injury would not have occurred. The original act of negligence may be passive, that is, harmless unless something further occurs but capable of being made dangerous by the operation of some new force * * *. Under such conditions, the fact that an intervening act of a third person is itself negligent, and acts upon the original passive negligence so that injury occurs which otherwise would not have occurred, does not necessarily operate to make the second act of negligence by the third party the sole proximate cause of injury and thus insulate the original wrongdoer from liability where the original wrongdoer at the time of his negligent conduct should have realized that a third person might so act, or, as a reasonable person knowing the situation existing when the...