Vaughn v. Protective Ins. Co., A99A2146.

Decision Date24 March 2000
Docket NumberNo. A99A2146.,A99A2146.
PartiesVAUGHN v. PROTECTIVE INSURANCE COMPANY et al.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Orr & Edwards, W. Fred Orr II, Decatur, Gambrell & Stolz, Irwin W. Stolz, Jr., Atlanta, for appellant.

Gray, Hedrick & Edenfield, William E. Gray II, Linda M. Fitzgerald, Atlanta, for appellees.

POPE, Presiding Judge.

The jury returned a defense verdict in this tragic case arising out of an automobile accident that killed James Christopher Vaughn. His mother, as administrator of Vaughn's estate, appeals the result on the grounds that the court should not have instructed the jury on assumption of the risk and that the trial court improperly refused to allow Vaughn to question her expert witness about his prior employment by defense counsel. Because the facts did not raise the issue of assumption of the risk, we reverse.

On July 14, 1993, James and others were riding in the back of a flatbed farm truck that had faulty brakes when the truck was approaching a stop sign at an intersection with Highway 257. At the same time, Norman L. Austin was approaching the same intersection on Highway 257 driving a fully loaded tractor-trailer, weighing over 37 tons. The farm truck was unable to stop. When he was approximately 300 feet from the intersection, Austin, who did not know the farm truck was facing a stop sign, saw the truck entering the intersection, tried to stop, and left skid marks beginning approximately 45 feet from the point of impact—which means that because the braking tires are on the back of the tractor, the front of the tractor was only 30 feet from the farm truck when the skid began. Austin was unable to stop or steer around the truck, and his vehicle demolished the back end of the farm truck killing James and another person who was riding in the back.1 The tractor came to a stop over 100 feet past the intersection, and the trailer went 86 feet farther than that.

Vaughn, on behalf of her son, brought suit against Austin, his employer, James Motor Company, and its insurance company, Protective Insurance Company. At trial there were issues of fact about whether Austin was driving within the 55-mph speed limit and about whether he negligently tried to beat the farm truck through the intersection. Austin estimated his speed at between 50 and 55 mph, but Vaughn's accident reconstruction expert, Thomas Langley, testified that Austin was traveling between 66 and 69 mph at the beginning of the skid mark. Also, Austin had his truck in either the eighth or ninth gear (out of ten) at the time of the accident, he had not geared down at all after seeing the farm truck, and he admitted that he initially turned in the direction the farm truck was going because his "[f]irst instinct is to beat it."

1. The court charged the jury on assumption of risk as follows:
When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk in and of itself amounts to failure to exercise ordinary care for one's own safety, that person cannot hold another liable for the injuries proximately caused by such action, even though the injuries may in part be attributed to the negligence of other persons.

Vaughn contends that the charge should not have been given because the principle is not applicable to this case. The defendants disagree and contend she waived this objection. Vaughn agreed to the charge during the charge conference and failed to object after the court charged the jury for the first time. But the jury requested that it be fully charged a second time. After the second charge the court called for objections to the recharge, and Vaughn objected to the charge on assumption of risk on the ground that it was not adjusted to the evidence and that it was not applicable to the case.

One waives any defect in the charge by failing to object to an instruction before the jury returns its verdict. OCGA § 5-5-24(a); Pope v. Goodgame, 223 Ga.App. 672, 675(3)(c), 478 S.E.2d 636 (1996); Bryant v. Housing Auth. &c. of Atlanta, 121 Ga.App. 32(2), 172 S.E.2d 439 (1970). But as shown, Vaughn objected before the verdict. See Brown v. Sims, 174 Ga.App. 243, 244(2), 329 S.E.2d 523 (1985) (physical precedent) (objection after charge sufficient even though there was no objection at charge conference).

The purpose of OCGA § 5-5-24(a) is to allow correction of errors in the charge when there is still time to do so. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 16(2), 195 S.E.2d 417 (1973) (decided under former Code Ann. § 70-207). This was the case here. The court could have withdrawn the charge and instructed the jury to no longer consider assumption of the risk, or it could have given revised instructions sufficient to clarify the law applicable to the case. Cf. Jones v. State, 246 Ga. 109, 111-112(5), 269 S.E.2d 6 (1980) (no merit to claim of incorrect charge where it has been called to jury's attention, withdrawn from them, and a correct charge given).

2. The court's charge on assumption of the risk was not appropriate because James did not assume the risk of Austin's alleged negligent driving.

"In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks." (Citation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864(1), 471 S.E.2d 866 (1996).

A charge on assumption of the risk is appropriate where there is evidence that the plaintiff had subjective knowledge of "the specific, particular risk of harm associated with the activity or condition that proximately causes injury," yet proceeded anyway. Vaughn, 266 Ga. at 864(1), 471 S.E.2d 866. "The knowledge requirement does not refer to a plaintiff's comprehension of general, non-specific risks that might be associated with such conditions or activities." Id. See also Trustees of Trinity College v. Ferris, 228 Ga.App. 476, 479(3), 491 S.E.2d 909 (1997). Also, in Georgia assumption of the risk is based in part on the reasoning that, "the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone." (Citation and emphasis omitted.) Vaughn, 266 Ga. at 864(1), 471 S.E.2d 866.

In this case the plaintiff knowingly or unknowingly faced at least three risks: (1) the risk of riding in the back of a farm truck; (2) the risk of the farm truck not stopping because of faulty brakes; and (3) the risk of Austin's allegedly negligent speed. The facts in this case suggest that all three risks may have contributed to James' death. But Vaughn's suit against the defendants is premised on the allegation that Austin's alleged negligence was the proximate cause of James' death.

James, as a normal adult in this day and age,2 must be held to have understood the risks associated with riding in the back of a flatbed truck. The risks include being thrown out of the truck or being injured in an accident to a greater degree than riding in a seat properly buckled up.3 Those risks do not include being run over by a tractor-trailer unable to stop in time because it was traveling at excessive speed. James did not consent to that. He did not consent to relieving Austin of his duty to drive carefully. See Vaughn, 266 Ga. at 865(2), 471 S.E.2d 866; Jimenez v. Morgan Drive Away, 238 Ga.App. 638, 640(1), 519 S.E.2d 722 (1999) ("knowledge of the dangers of driving a truck on the highway when the clutch is malfunctioning and parking a disabled truck in the emergency lane is not sufficient to establish knowledge that a vehicle would come into the emergency lane and strike the truck").

Similarly, assuming without deciding that there may be slight evidence that James was aware the brakes were faulty, that knowledge does not mean that he assumed the risk of Austin's negligence. The risk of faulty brakes includes running into things, losing control of a vehicle, and running stop signs. But again, it does not include the risk of being hit by a vehicle because that vehicle was being operated in a negligent manner.

In Beringause v. Fogleman Truck Lines, 200 Ga.App. 822, 824(4), 409 S.E.2d 524 (1991), this Court held that it was error to have charged on assumption of the risk when an officer was involved in a head-on collision while he was traveling, with emergency lights flashing, as part of an official convoy that was exceeding the speed limit and straddling the road's median. We held that the officer would have to have been aware of the actual risk in order for assumption of the risk to apply:

In order for [the officer] to have assumed the risk of being struck by [the] truck, there must be evidence that, after the truck had swerved into his lane of traffic, he had then made a conscious and voluntary decision to proceed and risk a head-on collision.

(Emphasis omitted.) Id. at 824(4), 409 S.E.2d 524. Compare Norman v. Williams, 220 Ga.App. 367(1), 469 S.E.2d 366 (1996).

In this case, a charge on assumption of the risk would have been appropriate only if there was some evidence that James saw the speeding tractor-trailer and then chose to stay in the truck rather than jump to safety, and then, only if he had time to do so. See Beringause, 200 Ga.App. at 824(4), 409 S.E.2d 524; Brown, 174 Ga.App. at 245-246(3), 329 S.E.2d 523. Although James may have seen the tractor coming toward him, the defendants do not contend he had time to jump off the truck or otherwise avoid injury at that point in time. Thus, it cannot be said that James assumed that risk. For these reasons, it was error to give the charge on assumption of the risk in this case.

3. We next address whether the error was harmful:

"`(W)hen an...

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