Storer Communications, Inc. v. Burns
Decision Date | 16 March 1990 |
Docket Number | No. A89A1850,A89A1850 |
Citation | 195 Ga.App. 230,393 S.E.2d 92 |
Parties | STORER COMMUNICATIONS, INC., et al. v. BURNS, et al. |
Court | Georgia Court of Appeals |
Alston & Bird, Judson Graves, Bryan A. Vroon, Atlanta, for appellants.
Daniel T. Donohue, Albert S. Johnson, Wade H. Watson III, Sharon W. Ware, Atlanta, for appellees.
Appellee-plaintiff's wife died after she lost control of her vehicle and then struck another vehicle that was parked in the emergency lane of an interstate highway. The vehicle with which appellee's deceased collided was owned by appellant-defendant Storer Communications, Inc., and had been parked in the emergency lane by its employee, appellant-defendant Winzurk. Appellee brought suit against appellants, seeking to recover for the death of his wife. Appellants answered and subsequently moved for summary judgment. The trial court denied appellants' motion but certified its order for immediate review. This Court granted appellants' application for an interlocutory appeal from the denial of their motion for summary judgment.
Construed most favorably for appellee, the evidence shows the following: On an overcast and rainy morning, appellant Winzurk was dispatched to report on the occurrence of a four-car collision on the interstate highway. Arriving at the scene, he parked in the emergency lane, turned on his emergency blinkers, and exited his vehicle. Traffic had become congested as the result of the four-car collision and, as appellee's deceased approached the scene, she moved from the center to the left lane. According to the motorist who was in the vehicle behind her, On this evidence, appellants urge that their motion for summary judgment should have been granted because any negligence in parking the vehicle in the emergency lane has been eliminated as a proximate cause of the collision and also because appellee's recovery is barred by the contributory negligence of his deceased.
" 'Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.' " Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 224 S.E.2d 25 (1976). Accordingly, unless this is one of those "plain and indisputable cases," the trial court's denial of summary judgment in favor of appellant-defendants was proper.
The act of appellant Winzurk in parking in the emergency lane of the limited access highway was negligence per se. OCGA § 40-6-203(a)(1)(I). The purpose of that statutory prohibition is to protect other drivers from striking a stationary vehicle. Blake v. Continental Southeastern Lines, 161 Ga.App. 869, 872(1), 289 S.E.2d 551 (1982). Appellee's deceased was another driver who struck the negligently parked stationary vehicle. There was no act of a third party which intervened between the negligence in parking the vehicle in the emergency lane and the collision with that negligently parked vehicle. Compare Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 99 S.E.2d 209 (1957) ( ); Baughcum v. Cecil Key Paving, 190 Ga.App. 21, 378 S.E.2d 151 (1989) ( ); Southern Bell Tel., etc., Co. v. Dolce, 178 Ga.App. 175, 342 S.E.2d 497 (1986) ( ); Standard Oil Co. v. Harris, 120 Ga.App. 768(3), 172 S.E.2d 344 (1969) ( ); Cain v. Ga. Power Co., 53 Ga.App. 483, 486, 186 S.E. 229 (1936) ( ); Morrison v. Columbus Transp. Co., 39 Ga.App. 708(1), 148 S.E. 276 (1929) ( ).
The only act which intervened between the negligence in parking the vehicle and the collision was the act of appellee's deceased herself in losing control of her vehicle. This would show that "but for" the act of appellee's deceased, the collision with the parked vehicle would not have occurred. However, "but for" the act of the driver of any vehicle that strikes another stationary vehicle, such a collision would not occur. (Emphasis in original.) Carter v. Powell, 57 Ga.App. 360, 370(1), 195 S.E. 466 (1938). It cannot be denied that the collision occurred at the place that it did only because another vehicle was negligently parked in the emergency lane. Even assuming that it may not have been foreseeable that, under the existing circumstances a collision with the negligently parked car would occur as the result of hydroplaning, it cannot be said that, as a matter of law, it was not foreseeable that a collision would somehow occur. Williams v. Grier, 196 Ga. 327, 337-338 (2), 26 S.E.2d 698 (1943). Appellants' anomalous assertion that, as a matter of law, the violation of a statute to protect drivers from striking stationary vehicles cannot be found to be a proximate cause of any injuries that may have resulted from another driver's collision with a negligently parked vehicle is without merit.
Appellants' further assertion that their motion for summary judgment should have been granted because appellee's recovery is barred by the contributory negligence of his deceased is likewise without merit. Carter v. Powell, supra 57 Ga.App. at 369-370(1), 195 S.E. 466. Because these questions do not have "plain and indisputable" answers under the evidence of record and must be resolved by a jury, the denial of appellants' motion for summary judgment is affirmed.
Judgment affirmed.
This case, as it is presented to us, revolves around the proximate cause element of tort. I concur in the contributory negligence portion of the majority opinion and in the judgment. I see the proximate cause aspect as related to Winzurk and Storer in a somewhat different way.
Several additional facts evidenced help paint a clearer picture. When Burns' vehicle collided with the Suburban, the latter was lifted into the air. Mrs. Burns suffered injuries from which she later died. The BMW was extensively damaged on the left side, behind the front quarter panel, with the worst damage being in the driver's door area and the area immediately behind it. The impact compressed the car sideways and the roof buckled. The impact area on the Suburban was on the rear and the impact pushed its rear wheels completely off the pavement. It ended up nearly perpendicular to the police car in front of it.
As recognized in the majority opinion, the issue of proximate cause starts with the...
To continue reading
Request your trial-
Smith v. Ontario Sewing Machine Co., Ltd.
...152, hn. 1, 42 S.E. 395 (1902); see also Williams v. Grier, 196 Ga. 327, 338(2), 26 S.E.2d 698 (1943); Storer Communications v. Burns, 195 Ga.App. 230, 231-232, 393 S.E.2d 92 (1990); Edwards v. Robinson-Humphrey Co., 164 Ga.App. 876, 881(3), 298 S.E.2d 600 As has been previously discussed, ......
-
Jordan v. City of Rome
...and a court should not take the place of the jury in solving them except in plain and indisputable cases. Storer Communications v. Burns, 195 Ga.App. 230, 393 S.E.2d 92 (1990). "The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence ......
-
Reed v. Carolina Cas. Ins. Co.
...S.E.2d 834. Prior to the addition of OCGA § 51–12–33(g)7, this Court addressed a case with similar facts. In Storer Communications v. Burns, 195 Ga.App. 230, 393 S.E.2d 92 (1990) (whole court), the plaintiff's wife died “after she lost control of her vehicle and then struck another vehicle ......
-
Coweta County v. Adams
...at issue, the trial court's denial of summary judgment to the County on the issue of negligence was proper. Storer Communications v. Burns, 195 Ga.App. 230, 393 S.E.2d 92 (1990). 2. The trial court correctly determined that proximate cause under these facts is an issue for jury determinatio......