Townsend v. Wright
| Decision Date | 08 February 1996 |
| Docket Number | No. A95A2610,A95A2610 |
| Citation | 469 S.E.2d 281,220 Ga.App. 324 |
| Parties | TOWNSEND et al. v. WRIGHT. |
| Court | Georgia Court of Appeals |
A. Russell Blank, Robert B. Lipman, Atlanta, for appellants.
Sullivan, Hall, Booth & Smith, Jack G. Slover, Jr., A. Spencer McManes, Jr., Atlanta, for appellee.
Robert and Teresa Townsend, along with their three children and a niece, went to Juanita Wright's house so that Mr. Townsend could discuss with Wright the cost of installing a septic tank on her property. While Wright and Mr. Townsend discussed the septic tank, Ms. Townsend sat under a tree in the yard holding the Townsend's one-year-old son. The other children played in the yard. After Wright and Mr. Townsend finished talking, Wright got into her parked car, started it and proceeded in reverse gear. As Wright backed up the car, she ran over two-year-old Sherry Townsend, who was behind the car. Sherry and Teresa Townsend filed a two-count complaint against Wright. In Count 1, Sherry, by her next friend and mother, Ms. Townsend, sought damages for personal injuries caused by Wright's alleged negligence; in Count 2, Ms. Townsend sought reimbursement for Sherry's medical expenses. Wright filed an answer to the complaint, claiming, among other things, that she was not negligent and that the Townsends were negligent in failing to supervise the child. The case was tried before a jury, which returned a verdict in favor of Wright. The Townsends appeal.
1. The Townsends correctly assert that the court erred in charging the jury on the last clear chance doctrine. The last clear chance doctrine contains two essential elements, which must be proved by the plaintiff. First, the plaintiff must show that by her own negligence she put herself in a perilous position from which she could not extricate herself. Second, the plaintiff must prove that the defendant knew and appreciated the plaintiff's peril in time to avoid the injury. Stallings v. Cuttino, 205 Ga.App. 581, 583(1), 422 S.E.2d 921 (1992). In the instant case, two-year-old Sherry Townsend is incapable as a matter of law of being negligent and any negligence of her parents cannot be imputed to her. See Commerce Properties v. Linthicum, 209 Ga.App. 853, 855(2), 434 S.E.2d 769 (1993). Because Sherry was not negligent as a matter of law, as to her claim, the first element of the last clear chance doctrine is not met. See Johnson v. Ray, 206 Ga.App. 262, 263(2), 424 S.E.2d 892 (1992). Moreover, as to both Sherry's claim and Ms. Townsend's claim for medical expenses, the second element of the last clear chance doctrine cannot be proven. That element requires that the defendant knew of the plaintiff's perilous situation and had opportunity to take proper evasive action to avoid injuring her; the doctrine "does not apply to a 'should know' or 'should have known' situation." (Citations and punctuation omitted.) Stallings, supra at 583(1), 422 S.E.2d 921. Here, it is uncontroverted that Wright did not actually know that Sherry Townsend was behind the car; rather, the Townsends claim that Wright should have known that Sherry was behind the car. Because both elements of the last clear chance doctrine do not apply to the Townsends' claims, the trial court erred in charging the jury on that doctrine.
Furthermore, we cannot say that the erroneous charge was harmless. The Townsends did not assert the last clear chance doctrine and in fact argued against its application to this case. Instead, defendant Wright requested the last clear chance jury instruction. We are not certain why Wright would request such a charge which, if properly given, would benefit the plaintiffs. However, we note that it appears from a review of the entire jury charge, that the instruction as given may have misled the jury into believing that the doctrine could be applied, not to hold Wright liable even if the Townsends were negligent, but to find that Mr. and Ms. Townsend's alleged negligence proximately caused the accident. During the last clear chance charge, the court did not clarify that the doctrine must be proved by the plaintiffs and that if proved, the jury could find that Wright's failure to take the last clear chance to avoid the accident proximately caused Sherry's injuries, in spite of any negligence by the Townsends. Rather, the court instructed the jury that "persons are under an obligation to use ordinary care to avoid injuring others after finding them in a dangerous place ... [and] if the person who has the last clear chance to avoid cause of injury fails to use ordinary care to avoid it, then that negligence is considered to be the proximate cause of the injury." This charge was immediately followed by charges that the negligence of parents is not imputable to the child, that if the parents knew of a danger and did not protect the child from it then the parents were negligent, that this parental negligence was the sole proximate cause of the child's injuries and that parents are under a duty of seeing that their child is not in a place of obvious danger. In this context, the jurors could have construed the last clear chance instruction as meaning that if Sherry Townsend's parents had the last clear chance to remove her from behind the car, and failed to do so, then that failure, rather than any possible negligence by Wright, proximately caused Sherry's injuries. That is an incorrect application of the last clear chance doctrine. Because the doctrine charged does not apply to this case and may have misled the jury, the court's error was harmful and a new trial is required. See Smith v. Mobley, 185 Ga.App. 462, 463(2), 364 S.E.2d 597 (1988).
2. The Townsends claim the court erred in charging the jury "that it would be normally the duty of a parent to see that the child would not be in a place of obvious danger." The Townsends argue that this rule applies only to premises liability cases, and thus does not apply to this negligence...
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