Rios v. Norsworthy

• Decision Date: 01 March 2004
• Docket Number: No. A03A2411.,A03A2411.
• Parties: RIOS v. NORSWORTHY et al.
• Court: Georgia Court of Appeals

266 Ga. App. 469

597 S.E.2d 421

266 Ga.App. 469

RIOS v. NORSWORTHY et al.

No. A03A2411.

Court of Appeals of Georgia.

March 1, 2004.

Reconsideration Denied March 24, 2004.

James S. Strawinski, Nicole W. Stout, Atlanta, for appellant.

Gray, Hedrick & Edenfield, William E. Gray II, Stacey K. Hydrick, Warshauer, Woodruff, Thomas & Wallace, Michael J. Warshauer, Bradford W. Thomas, Atlanta, for appellees.

ANDREWS, Presiding Judge.

While attempting to pass a tractor-trailer rig on the left on a two-lane road, Salvador Vicente Rios crashed his van into the driver's side front section of the rig as he tried to merge right to avoid a head-on collision with a car approaching from the opposite direction. A passenger in the van who was injured in the crash sued Rios alleging he negligently drove the van. Rios filed a third-party complaint against the rig driver, Donald Norsworthy, the driver's employer, Glenn Jackson Trucking Company, and the employer's insurer, Redland Insurance Company. The third-party complaint alleged that the rig driver caused the crash because he negligently failed to slow down or move to the right during the pass attempt so that Rios could safely complete the pass and merge back into his lane. The trial court granted summary judgment to the third-party defendants, and Rios appeals. For the following reasons, we affirm.

1. It is undisputed that Rios illegally attempted to pass the tractor-trailer rig across a double yellow line, uphill, on a curve, and in the dark. The tractor-trailer rig driver, Norsworthy, testified that he was aware there was a vehicle behind him in his lane of traffic because it was dark and he saw the vehicle's lights in his rearview mirror as he started on an uphill section of road which curved to the left and had a double yellow line prohibiting passing. Norsworthy said that, after checking his rearview mirror, he focused on the uphill curve ahead of him, and that he did not expect the vehicle behind him would attempt an illegal pass. He testified that he had just finished checking the rearview mirror and had returned his focus to the road ahead when he suddenly saw the van pull into and impact the driver's side front of his rig. Prior to that time, he did not see the van pull out to pass and did not know the van was attempting to pass. Norsworthy testified that he immediately braked when he saw the van, but at that point there was nothing he could do to avoid the crash.

Rios admitted he was attempting an illegal pass across the double yellow line on the curve. He testified that, before he could complete the pass, he realized there was going to be a head-on collision with an oncoming car, and he swerved right into Norsworthy's rig to avoid the car. Rios said he did not think Norsworthy saw him prior to his impact with the rig and that Norsworthy did nothing to avoid the collision. Rios plead guilty to traffic offenses of passing in a no passing zone and improper lane change.

The driver of a car traveling behind Rios's van stated that, when she saw the van start to pass the rig, she "couldn't believe a van [was] passing on a double yellow line in that curve." She testified that the driver of the rig hit his brakes just before the impact in what appeared to be an attempt to let the van get past into the right lane to avoid a head-on collision with the oncoming car.

The undisputed facts show that the rig driver, Norsworthy, did not see Rios's van until it was too late to take action to avoid the impact. The issue presented on these facts is whether in the exercise of ordinary care Norsworthy should have seen the van illegally attempting to pass him in sufficient time for him to brake the rig or move to the right to avoid the collision. James v. Allen, 173 Ga.App. 636, 638, 327 S.E.2d 501 (1985) (construing the rules related to overtaking and passing in OCGA § 40-6-42). There is no absolute duty on a driver to avoid a collision; rather, all drivers are charged with the duty to exercise ordinary care under the circumstances. Malcom v. Malcolm, 112 Ga.App. 151, 155, 144 S.E.2d 188 (1965); Blalock v. Staver, 132 Ga.App. 628, 629, 208 S.E.2d 634 (1974). In general, once a driver in the exercise of ordinary care knows or should know of another driver's negligence, he has a duty to exercise ordinary care to avoid the dangerous consequences of that negligence. Moore v. Price, 158 Ga.App. 566, 568-569, 281 S.E.2d 269 (1981); Ellis v. Dalton, 194 Ga.App. 114, 115, 389 S.E.2d 797 (1989). However,

[o]ne who is himself rightfully using the highway or street has a right to the use thereof, which is superior to that of one who is violating traffic regulations, and, in the absence of knowledge, he is not required to anticipate that some other user will unexpectedly violate the law or rule of the road and create a situation of danger.

(Punctuation omitted.) Russell v. Corley, 212 Ga. 121, 91 S.E.2d 24 (1956); Steiner v. Melvin, 143 Ga.App. 97, 99, 237 S.E.2d 635 (1977). This does not mean that a driver operating in compliance with traffic regulations is not required to exercise ordinary care to discover and avoid the consequences of another driver's negligent violation of those regulations. Plyler v. Smith, 193 Ga.App. 114, 115-116, 386 S.E.2d 881 (1989). If by the exercise of ordinary care a driver is able to acquire knowledge of a dangerous situation created by a traffic violation, the duty remains to act on that knowledge by exercising ordinary care to avoid the consequences of the violation. But in the absence of knowledge acquired by the use of ordinary care, a driver rightfully using the road is not required to exercise extraordinary care to foresee the negligence of other drivers or to anticipate the possibility that another driver will unexpectedly violate traffic regulations and create a dangerous situation. Russell, 212 Ga. at 121,91 S.E.2d 24; Edwards v. McKenzie, 114 Ga.App. 395, 398, 151 S.E.2d 469 (1966); Southern Bell Tel. &c. Co. 09 v. Bailey, 81 Ga.App. 20, 25, 57 S.E.2d 837 (1950); Plyler, 193 Ga.App. at 116,386 S.E.2d 881. In other words, where a driver rightfully using the road and exercising ordinary care fails to discover and avoid the dangerous consequences of another driver's unexpected traffic violation, he is not negligent merely because he would have discovered and avoided those consequences if he had employed a heightened degree of care. "Where the duty is that of ordinary care, one is not negligent (or contributorily negligent) merely because of failure to exercise that degree of care which would have absolutely prevented injury." Seagraves v. ABCO Mfg. Co., 118 Ga.App. 414, 419, 164 S.E.2d 242 (1968).

Applying these principles, the evidence was undisputed that Rios was violating a traffic regulation while attempting to pass in the no pass zone. On the other hand, Norsworthy was driving his tractor-trailer rig in compliance with the rules of the road as he headed into the no pass zone, checked his rearview mirror, and determined that Rios's vehicle was still in the lane of traffic behind him. The evidence was undisputed that Norsworthy had just completed this check and refocused his attention on the uphill curve he was driving into when, unknown to him, Rios pulled out in the no passing zone, attempted to pass, then swerved toward the rig to avoid the oncoming car. The evidence was again undisputed that the first knowledge Norsworthy had of the dangerous situation created by Rios's traffic violation was the instant Rios swerved into the rig. The record shows that Norsworthy diligently checked his rearview mirror just prior to the illegal pass attempt in the no pass zone. There is nothing in the record which shows that Norsworthy knew or in the exercise of ordinary care should have known that Rios was likely to attempt an illegal pass. Under these circumstances, the duty to exercise ordinary care did not require that Norsworthy constantly check his rearview mirror to anticipate the possibility of an illegal pass attempt.

Although the issue of whether a driver has exercised ordinary care under the circumstances is usually a jury question, where the undisputed facts show liability or the lack thereof such that reasonable minds cannot differ, the issue may be decided as a matter of law. Lauffer v. Brooks, 220 Ga.App. 51, 53, 467 S.E.2d 345 (1996); Gullatt v. Fain, 259 Ga.App. 230, 576 S.E.2d 612 (2003). There is no evidence on the present record which could support a conclusion by reasonable factfinders that Norsworthy knew or in the exercise of ordinary care should have known about and avoided the dangerous consequences resulting from Rios's illegal attempt to pass in the no pass zone. In the absence of such evidence, the trial court properly granted summary judgment in favor of Norsworthy and the other third-party defendants, whose alleged liability was wholly derivative of Norsworthy's liability. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

2. Contrary to Rios's contention, we find no error in the trial court's order striking and refusing to consider three expert affidavits filed by Rios in response to the third-party defendants' motion for summary judgment.

The first affidavit was given by Herman Hill, a licensed professional engineer. Hill stated that, based on his examination of the accident report, accident site and the depositions of Norsworthy and the motorist who saw the accident, he had the following expert opinions: Norsworthy "was negligent in failing to respond to the [van] movement as it came alongside him"; that he "had the last clear chance to avoid the consequences of this wreck and failed to do so," and that "[t]here is sufficient sight distance along the curve and hillcrest for [Norsworthy] to have been able to perceive and react with a momentary lane change which would have prevented the collision."

Hill's opinion that Norsworthy was negligent is a conclusion constituting a mixture...