Waits v. Makowski, A89A0347

• Decision Date: 05 June 1989
• Docket Number: No. A89A0347,A89A0347
• Citation: 191 Ga.App. 794,383 S.E.2d 175
• Parties: WAITS v. MAKOWSKI.
• Court: Georgia Court of Appeals

Page 175

383 S.E.2d 175

191 Ga.App. 794

WAITS v. MAKOWSKI.

No. A89A0347.

Court of Appeals of Georgia.

June 5, 1989.

John H. Ramsaur, for appellant.

Rowe & McGarity, William P. Rowe III, Duluth, for appellee.

BIRDSONG, Judge.

This is an appeal from the trial court's order granting appellee's motion for summary judgment.

Appellant brought suit for injuries sustained in a multiple car collision in September of 1986.

Appellee exited I-285 at Memorial Drive at a speed faster than normal. Appellee's vehicle did not appear to reduce speed as he approached a line of stopped vehicles. He hit the back of a stopped car which in turn hit the appellant's car knocking it into the car in front of it. Appellee's car then moved backwards suddenly and traveling in reverse struck two other cars. Mr. Martin, a former special forces soldier with some medical training, witnessed the collisions and approached appellee's car. He observed that the appellee was apparently undergoing some type of seizure. The symptoms exhibited by appellee were later confirmed by a neurology specialist as being consistent with the symptoms of a person who is experiencing a seizure.

Appellee asserts the defense of accident. He claims that he had not eaten any food for approximately 20 hours preceeding the collision, and that on the morning of the accident, he had only some coffee and a coke to drink. Appellee remembers entering the exit ramp at a normal rate of speed, suddenly becoming dizzy and becoming unconscious about a second later thereby losing control of his vehicle. Appellee claims he never suffered from seizures before the collision nor had he experienced episodes of dizziness, light-headedness, or unconsciousness. Following the accident, appellee was given emergency medical treatment. Subsequent medical tests and examinations were administered by two doctors; however, apparently "[n]o neurological disorders were found, and no medications or follow-up treatment were required."

In March of 1987, appellee was examined by a neurology specialist following "a generalized atonic-colonic convulsion." It was this doctor's opinion that appellee "suffers from cryptogenic seizure disorder"; and this type of seizure occurs suddenly and without any warning and may result in an immediate loss of consciousness. Held:

Appellant's sole enumeration of error is that the trial court erred in granting the appellee summary judgment.

1. " '(O)n summary judgment, the movant has the burden of showing "there is no genuine issue as to any material fact and that (he) is entitled to a judgment as a matter of law." (Cit.) When, as in the instant case, the movant is the defendant, he has the additional burden of piercing the plaintiff's pleadings and affirmatively negating one or more essential elements of the complaint.' [Cit.] In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion." Moore v. Goldome Credit Corp., 187 Ga.App. 594(1), 595-596, 370 S.E.2d 843.

Freeman v. Martin, 116 Ga.App. 237, 239, 156 S.E.2d 511, cited by the trial court, pertinently provides "that there is no liability for negligence or for gross negligence on the part of an operator of a motor vehicle who, while driving, is suddenly stricken by a fainting spell, or loses consciousness from some unforeseen reason. Such loss of consciousness is a complete defense to an action based upon negligence, and if it appears from the plaintiff's evidence he fails to demonstrate a right to recover, making the nonsuit a proper disposition of the matter." (Emphasis supplied.) We adhere to this sound principle.

The record, however, contains the affidavit of Mr. Tate who also witnessed the collision. Mr. Tate recounts, "[a]s I started up the ramp on the right side, a car came up fast behind me and I had to go off the ramp and into a ditch ... to avoid being hit. As the driver [the appellee] went by me, I noticed he was drinking from a cup or can that he was holding. After that, he hit several cars.... I quickly went over ... and started to give help to him. His safety belt was not buckled. He started talking to me and said that unless I was a doctor or medic, not to touch him further.... At this time, someone else came up and he had medical training...." (Emphasis supplied.)

It may be reasonably inferred from this evidence that appellee was not having a seizure nor was he unconscious at the time of the collision, or in the alternative that appellee did not suffer the seizure until after the collision. The fact that appellee's car suddenly went in reverse following the initial impact could support any one of several reasonable inferences; for example, that the appellee voluntarily put his car in reverse to disengage it from the struck vehicle and thereafter lost control of it, or that appellee either while conscious or unconscious was thrown into the gear shift lever involuntarily putting the car in reverse. " 'As a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one's own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. (Cits.) However, where the facts conclusively show by plain, palpable and undisputed evidence that the defendant was not at fault ... such case properly may be resolved as a matter of law through the vehicle of summary judgment.' " Soto v. Roswell Townhomes, 183 Ga.App. 286, 288, 358 S.E.2d 670; accord Papp Clinic v. Cash, 186 Ga.App. 444, 445, 367 S.E.2d 271. We find that the posture of the evidence, considering the reasonable inferences that may be drawn therefrom, presents matters which should be resolved by the jury. Thompson v. Crownover, 259 Ga. 126(5), (6), ...