Smithwick v. Campbell

• Decision Date: 18 October 2021
• Docket Number: A21A0733
• Citation: 361 Ga.App. 481,864 S.E.2d 662
• Parties: SMITHWICK v. CAMPBELL.
• Court: Georgia Court of Appeals

361 Ga.App. 481

864 S.E.2d 662

SMITHWICK

v.CAMPBELL.

A21A0733

Court of Appeals of Georgia.

October 18, 2021

Anna Green Cross, Robert Melvin Hammers Jr., Darren Summerville, Atlanta, for Appellant.

Michael Charles Kendall, Douglasville, Matthew Brandon Howard, for Appellee.

Miller, Presiding Judge.

In this tort case involving a rear-end collision, the jury found in favor of the defendant, Ross Campbell. The plaintiff, Leigh Smithwick, appeals from the trial court's denial of her motion for new trial and motion for judgment notwithstanding the verdict, arguing that the defense of sudden emergency was not supported by the evidence. Because a careful review of the record reveals at least some evidence authorizing the sudden emergency instruction, the trial court properly charged the jury on this defense. Accordingly, we affirm.

"On appeal, the evidence is construed most strongly to support the verdict and judgment." (Citation omitted.) Smith v. Norfolk Southern R. Co. , 337 Ga. App. 604, 605, 788 S.E.2d 508 (2016).

So construed, the evidence shows that on a morning in September 2013, while traveling on Interstate 575, Smithwick and Campbell proceeded onto Exit 8 into extremely heavy, "stop-and-go traffic." "It wasn't quite light out[,]" and the roadway was wet from light rain. Campbell traveled approximately one car-length behind Smithwick's vehicle, and both Campbell and Smithwick drove very slowly while "lining up" in preparation to make a right turn. An unknown driver then traveled from the highway and cut in front of Smithwick, which caused Smithwick to swerve slightly in the lane and slam on her brakes. Campbell began slowing down after he saw other cars doing the same, but he rear-ended Smithwick.¹ Campbell testified that "maybe two seconds" passed between the time that the unknown driver came onto the exit and the point at which the other drivers reacted. He further explained that "a domino effect" resulted after the unknown driver cut in front of Smithwick. Campbell's vehicle was not damaged, but Smithwick's vehicle sustained damage to the bumper, taillight, and trunk. Smithwick described the collision as "slight," but she began experiencing neck pain approximately a week after the accident.

In 2015, Smithwick filed a negligence lawsuit against Campbell, seeking recovery for medical expenses and pain and suffering. Campbell denied liability, partly on the basis that a sudden emergency arose when the unknown driver cut in front of Smithwick's vehicle, which caused her to make a sudden stop. After the close of evidence at trial, Smithwick moved for a directed verdict on the sudden emergency defense, which the trial court denied. During the charge conference, Smithwick argued that Campbell could not avail himself of the sudden emergency defense because he had testified to having followed too closely behind her. Over Smithwick's objection, the trial court charged the jury on the sudden emergency doctrine as follows:

Members of the jury, one who is confronted with a sudden emergency that was not caused by one's own fault and is without sufficient time to determine accurately and with certainty the best thing to be done is not held to the same accuracy of judgment as would be required of that person if he had more time for deliberation. The requirement is that the person act with ordinary care under all particular facts and circumstances surrounding the situation, including, but not limited to obeying the traffic laws of this [S]tate. The trial court also instructed the jury on the statutory duty regarding following too closely, as embodied in OCGA § 40-6-49 (a).²

The jury returned a defense verdict in favor of Campbell. Smithwick filed a motion for new trial and a motion for judgment notwithstanding the verdict, challenging the trial court's decision to give the sudden emergency instruction. After a hearing, the trial court denied both motions. The court reasoned that the sudden emergency charge was proper because (1) the unknown driver suddenly and unexpectedly darted in front of Smithwick; (2) the question of whether Campbell had been following Smithwick too closely was for the jury's consideration; and (3) Campbell faced a choice of conduct immediately preceding the accident. Smithwick filed this timely appeal.

1. As an initial matter, we address Campbell's claim that we are precluded from considering this appeal. Campbell contends that (1) the trial court's denial of Smithwick's motion for judgment notwithstanding the verdict remains the law of the case because Smithwick has not challenged that ruling in her enumeration of errors; and (2) Smithwick failed to preserve her challenge to the jury instruction based on the second element of the sudden emergency defense, i.e., that Campbell was not presented with a choice of conduct after the emergency situation arose. Both of these claims lack merit.

[W]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.

(Citation omitted.) Mateen v. Dicus , 281 Ga. 455, 456, 637 S.E.2d 377 (2006). In her notice of appeal, Smithwick specifically indicates that she is appealing from both the denial of her motion for new trial and the trial court's denial of her motion for judgment notwithstanding the verdict. Additionally, the arguments contained in Smithwick's enumeration of errors are the same arguments that she raised in her motion for judgment notwithstanding the verdict and in her motion for new trial. Because we can clearly discern the two judgments from which Smithwick is appealing, both judgments are properly before the Court.

Additionally, Smithwick preserved the two evidentiary grounds underlying her objection to the jury instruction. In civil cases, "no party may complain of the giving [of] ... an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection." OCGA § 5-5-24 (a). Compliance with this statute "is all the law requires to preserve an objection for appeal." Pearson v. Tippmann Pneumatics, Inc. , 281 Ga. 740, 743 (2), 642 S.E.2d 691 (2007).

At the charge conference, Smithwick plainly argued to the trial court that the sudden emergency instruction was inapplicable because (1) Campbell participated in the circumstances causing the sudden emergency; and (2) there was no evidence that Campbell was presented with a choice of conduct at the time of the collision. After the close of the evidence, Smithwick moved for a directed verdict on the sudden emergency defense. Then, after the trial court instructed the jury, Smithwick informed the court that she was excepting to the sudden emergency charge, and the trial court noted the exception. Our research has uncovered no law — specific to jury instructions — that required Smithwick to do more to preserve her objection on the same two grounds that she raised at the charge conference. See McDowell v. Hartzog , 292 Ga. 300, 302, 736 S.E.2d 395 (2013) (objection to the jury charge was preserved for appeal where the "appellants distinctly stated their objection at the charge conference, excepted to the charge as given on the same ground, and the trial court clearly understood the basis of their objection"); Goody Products, Inc. v. Dev. Auth. of City of Manchester , 320 Ga. App. 530, 538 (3), 740 S.E.2d 261 (2013) (objection to the jury charge was preserved where the transcript demonstrated that the trial judge sufficiently understood the nature of the objections and the party reiterated the objections after the charge was given, "albeit without repeating the specific factual or legal basis of the objection"). Accordingly, we will address both of the grounds underlying Smithwick's objection to the jury instruction.³

2. In two related enumerations of error, Smithwick contends that the sudden emergency jury instruction was not supported by the evidence in the record because neither of the two elements of the doctrine was satisfied and that she was entitled to a directed verdict on this issue. She claims that (1) Campbell admitted to following too closely behind her, and therefore, as a matter of law, he participated in the circumstances that caused the sudden emergency; and (2) Campbell was not presented with various alternative choices of conduct after the sudden emergency arose, as demanded by the defense. We determine that neither of these arguments is meritorious and that the trial court properly denied Smithwick's motion for a directed verdict on the defense and correctly charged the jury on the defense.

"A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence." (Citation omitted.) Maxineau v. King , 304 Ga. App. 217, 218, 695 S.E.2d 732 (2010).

The sudden emergency defense is available where the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought; under such circumstances, negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.

(Citation omitted.) Smith , supra, 337 Ga. App. at 609 (1), 788 S.E.2d 508. "A jury charge on the sudden emergency defense is authorized if the defendant presents any evidence, however slight, to support such a defense, even if there is conflicting evidence that would allow the jury ultimately to find that an emergency did not exist." (Citations and punctuation omitted.) Id. See also Dubberly v. Cooper , 258 Ga. App. 193, 194, 573 S.E.2d 442 (2002...