Redmon v. Daniel

Decision Date20 November 2015
Docket NumberNo. A15A1454.,A15A1454.
Citation779 S.E.2d 778,335 Ga.App. 159
Parties REDMON et al. v. DANIEL et al.
CourtGeorgia Court of Appeals

John David Dixon, Atlanta, for Appellant.

Craig T. Jones, Atlanta, for Appellee.

BRANCH, Judge.

Danny Jermont Daniel died as a result of being struck by one or more motor vehicles while walking along an exit ramp on Georgia Highway 316 in Gwinnett County. Connie June Daniel, as Danny's surviving spouse and administrator of his estate, sued Kelly Anne Gitaitis and Bobby Redmon, the drivers of the two vehicles involved in the incident. She also sued Redmon's employer, Republic Services of Georgia, L.P., d/b/a United Waste Services ("Republic"). Daniel asserted a claim for wrongful death, alleging that the negligence of Gitaitis and Redmon proximately caused her husband's death; she further alleged that Republic, as Redmon's employer, was vicariously liable for his negligence. A jury found in favor of Daniel and apportioned 42 percent of the liability for Danny's death to Redmon and his employer. Redmon and Republic now appeal from the trial court's order of judgment as well as the denial of their motion for judgment not on verdict, arguing that there was insufficient evidence to prove that any alleged negligence of Redmon proximately caused Danny's death. For reasons explained more fully below, we agree and therefore reverse the judgment of the trial court.

"On appeal from the denial of a motion for a directed verdict or for j.n.o.v., 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." Park v. Nichols, 307 Ga.App. 841, 845(2), 706 S.E.2d 698 (2011) (citation and punctuation omitted). So viewed, the evidence shows that at approximately 5:00 a.m. on the morning of September 16, 2009, Danny was walking in or next to the roadway of the exit ramp from Georgia Highway 316 to Georgia Highway 120. At the time, Danny was dressed in dark green shorts and a black tee shirt. As Danny was traveling the exit ramp on foot, Gitaitis, driving a Chevrolet Tahoe, exited Highway 316 and proceeded along the ramp towards Highway 120. Gitaitis was followed by a Mack garbage truck owned by Republic and driven by Redmon. The portion of Highway 316 from which the exit ramp runs is a controlled access highway on which pedestrians are not allowed. There are no street lights present on the tree-lined exit ramp, and several witnesses, including the officers who investigated the accident, testified that there is no ambient lighting on the ramp from any nearby street signs. The evidence also showed that the exit ramp was particularly dark on the morning in question, as it was cloudy with either a mist or light rain falling.

The speed limit on Highway 316 is 55 miles per hour, and Gitaitis and Redmon were moving along the exit ramp at between 40 and 50 miles per hour, with the garbage truck traveling approximately 200 feet behind the Tahoe. According to both Gitaitis and Redmon, Gitaitis was traveling along the middle of the exit ramp when she struck Danny, who Gitaitis said was in the middle of the road. Gitaitis testified that although she had her high-beam headlights on and was looking straight ahead, she did not see Danny until her car hit him.

Based on the evidence, both the police and the medical examiner believed that the initial impact was between the right, front side of Gitaitis's vehicle and the left side of Danny's lower body. Following this impact, Danny's body was thrown onto the hood of Gitaitis's Tahoe, with his head shattering her windshield and creating a large hole on the passenger side of the glass. Danny's body then came off of the Tahoe and was airborne for a short time before landing on the pavement in the middle of the roadway. Although Redmon did not see the initial impact, he did see something that he believed was a deer come off Gitaitis's vehicle and land in the roadway. Because the body was coming off the right side of the Tahoe, Redmon took the only evasive action available to him, which was to brake and swerve to the left. When Redmon felt the empty garbage truck begin to tip, he corrected the steering wheel back to the right. At some point, the rear tires of the garbage truck ran over Danny's head.

With respect to the cause of her husband's death, Daniel presented the testimony of Dr. Carol Terry, the Chief Medical Examiner for Gwinnett County. Based on the evidence available to her, Dr. Terry testified that there were three potential causes of Danny's death: the blow to Danny's head when he struck Gitaitis's windshield; the blow to Danny's head when he landed on the pavement; and the rupturing of Danny's skull.1 Dr. Terry further testified that she could not say that one cause of death was more likely than any other and that she had no way to tell if Danny was alive when the garbage truck hit him.2 She explained that head injuries caused by hitting the windshield and striking the pavement would have been blunt force trauma injuries, both of which were potentially fatal. Dr. Terry testified that although in some cases a blow to the head can cause instantaneous death, in most such cases death is not instantaneous, and it takes longer than two to three seconds for a person suffering a blunt-force head trauma to die. Thus, Dr. Terry concluded that while it was a medical possibility that Danny was alive at the time the truck struck his head, she could not say that it was a reasonable medical probability.

Daniel's theory of negligence as to Redmon was that he was following too closely behind Gitaitis's vehicle and was therefore unable to stop in time to avoid hitting her husband. In support of this theory, Daniel presented evidence that as a commercial truck driver, Redmon was required to maintain a minimum four-second following distance between his truck and any other vehicle. Given Redmon's statement to police that he was approximately 200 feet behind Gitaitis at the time of the accident and that he was traveling at between 45 and 50 miles per hour, however, his following distance behind Gitaitis was only between 2.7 and 3 seconds. And had Redmon had an additional 1 to 1.3 seconds of reaction time, Daniel argued, he could have avoided hitting her husband.

To counter this theory of liability, the defense presented evidence in the form of expert testimony and testimony from members of the accident investigation team that investigated the events surrounding Danny's death. Those witnesses stated that it appeared from the location of the body and other debris that Gitaitis's car struck Danny while he was in the middle of the roadway, rather than on the shoulder. Additionally, as explained more fully below, these witnesses uniformly testified that, given the circumstances, an increased following distance would not have allowed Redmon to avoid hitting Danny. Thus, each of the witnesses testified that they did not view Redmon's speed or his following distance as a factor in Danny's death.

At both the close of the plaintiff's case and at the close of all evidence, Redmon and Republic moved for a directed verdict, arguing that Daniel had failed to prove the causation element of her negligence claim against them. The trial court denied each of these motions and allowed the case to go to the jury.3 The jury returned a $1.6 million verdict in favor of Daniel and apportioned liability as follows: 23 percent to Gitaitis, 35 percent to Danny, and 42 percent to Redmon and Republic. Redmon and Republic then filed a motion for j.n.o.v. After a hearing, the trial court denied that motion. Redmon and Republic now appeal from both the order denying their motion for j.n.o.v. and the order of judgment.

To prevail on her negligence claim against Redmon and Republic, Daniel was required to prove by a preponderance of the evidence that Redmon had a legal duty to conform to a certain standard of conduct so as to protect others against unreasonable risks of harm; that Redmon breached this standard; that Daniel suffered a loss or damages as a result of the Redmon's alleged breach of his legal duty; and that there was a legally attributable causal connection between Redmon's conduct and the resulting injury. Anneewakee, Inc. v. Hall, 196 Ga.App. 365, 367(1), 396 S.E.2d 9 (1990). A "preponderance of the evidence," in turn, simply requires that the evidence show a rational factfinder that a particular fact is more likely than not. See Zwiren v. Thompson, 276 Ga. 498, 499, 578 S.E.2d 862 (2003) (the preponderance of the evidence "standard requires only that the finder of fact be inclined by the evidence toward one side or the other") (citation and punctuation omitted). "[A]nd to prove causation, the plaintiff must show that the wrongdoing is both a cause in fact and a proximate cause of the injuries [alleged]." Strength v. Lovett, 311 Ga.App. 35, 40(2)(a), 714 S.E.2d 723(2011). Thus, to prove the causation element of her negligence claim Daniel was required to introduce evidence which provided the jury with "a reasonable basis for the conclusion that it is more likely than not" that Redmon's allegedly negligent conduct "was [both] a cause in fact" and a proximate cause of her husband's death. Wolfe v. Carter, 314 Ga.App. 854, 856 –857(1), 726 S.E.2d 122 (2012) (citation and punctuation omitted). If the evidence presented only a "mere possibility" that Redmon's conduct was either a cause in fact or a proximate cause of Danny's death such that the question of causation remained "one of pure speculation or conjecture," or if the evidence showed that "the probabilities [were] at best evenly balanced," then Redmon and Republic were entitled to judgment in their favor as a matter of law. Id. at 857(1), 726 S.E.2d 122 (citation and punctuation omitted).

1. Bearing the foregoing principles in mind, we turn to the claims of error asserted by Redmon and Republic.

We begin by addressing...

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