Wendlandt v. Shepherd Const. Co., Inc.
| Decision Date | 24 February 1986 |
| Docket Number | No. 70958,70958 |
| Citation | 178 Ga.App. 153,342 S.E.2d 352 |
| Parties | WENDLANDT et al. v. SHEPHERD CONSTRUCTION COMPANY, INC. |
| Court | Georgia Court of Appeals |
C. Alan Mullinax, Stone Mountain, for appellants.
John F. Davis, Jr., Atlanta, for appellee.
Automobile Accident--Defendant's Verdict. The facts giving rise to this appeal show that Shepherd Construction Company, Inc. ("Shepherd") was engaged in construction work alongside I-285. Part of the construction included grading and the use of a 44,000 pound bulldozer. Two days before the incident in question, an employee of Shepherd had been using this bulldozer in grading work. Upon completion of the day's work involving the dozer, the employee parked the dozer in a place approved by appropriate authority approximately 300 feet from the roadside, parallel to the road and with the blade down. The jury in the face of contested evidence could have believed that on the day of the accident, some unknown person hotwired or jumped the ignition to the dozer and started the diesel motor running. The dozer allegedly was backed by this unknown person to a position facing the highway (I-285), who then raised the blade and started the dozer on a forward path toward the road. There was reconstructed opinion evidence that the person then jumped off the dozer and made good an escape on a motorcycle. (This was a reconstruction by witnesses from tracks at the scene and not based upon eyewitness accounts.) The dozer proceeded across the field over the guard rail, across all southbound lanes of I-285 to the center wall where the dozer stopped with the motor still running.
Mrs. Wendlandt was a passenger in a car driven by her sister and along with several other cars was involved in a crash with the dozer. Mrs. Wendlandt suffered numerous painful and serious injuries. She and her husband brought suit against Shepherd urging that Shepherd was negligent in 14 respects in failing to secure the dozer and that this negligent failure was the direct proximate cause of Mrs. Wendlandt's injuries as well as causing Mr. Wendlandt medical expenses and loss of consortium. After a four-day trial, the jury returned a verdict for Shepherd. The Wendlandts each bring this appeal complaining of three alleged errors in the charge of the trial court. Held:
1. In their first enumeration of error, the Wendlandts complain the trial court erred in denying a motion in limine and thereafter in admitting evidence and giving a charge on an issue of negligence, as affecting the amount of recovery of damages, of Mrs. Wendlandt in failing to use available seatbelts.
The Wendlandts correctly point out to this court that a charge dealing with the failure to use available seatbelts as contributory or comparative negligence is a matter of first impression in this state. However, most of the cases (out-of-state) relied upon by the appellants are ten or more years in the past and most, though not all, deal with the question of contributory (comparative) negligence in determining the issue of liability as opposed to damages. In this case the trial court expressly limited evidence of the use or failure of use by Mrs. Wendlandt of seatbelts to whether her alleged failure of use might have contributed to the extent of her injuries. Thus in effect the court charged the jury that it could not consider the failure to use an available seatbelt on the issue of liability but limited any such evidence to a diminution of damages, if any, that might accrue to Mrs. Wendlandt under an appropriate consideration of possible comparative negligence. It is clear in this state that comparative negligence, as such, pertains to issues of damages and not liability.
In the years of the 1980's, much public attention has been focused upon the use of injury reduction devices in automobiles such as air bags and seatbelts. As acknowledged by the appellants, the state of Georgia has seen fit to enact a mandatory child restraint law for infants carried as passengers in Georgia-licensed autos. However, as also pointed out by appellants, it was expressly declared that the failure to use a child restraint would not be considered negligence per se. Nevertheless, much can be said for a legal proposition that the failure to use an available seatbelt, in view of its potential to reduce serious injuries, could be considered by a jury as a matter of negligence by the injured party and as affecting the amount of damages to be recovered. Certainly it would be necessary to show that the actual injuries sustained could have been reduced or probably would have been reduced by the use of an available seatbelt. In this case, Mrs. Wendlandt averred that her injuries were caused by the violence of her being "knocked and tossed about" in the interior of the passenger compartment.
However, we need not decide the desirability or necessity of such a charge on the issue of damages for the jury returned a verdict for the defendant, Shepherd. Thus any...
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Endsley v. Geotechnical & Envtl. Consultants, Inc.
...Id.42 Id . at 192, 366 S.E.2d 769.43 Id . at 195 (1), 366 S.E.2d 769.44 (Emphasis supplied).45 Cf. Wendlandt v. Shepherd Construction Co. , 178 Ga.App. 153, 154–55, 342 S.E.2d 352 (1986) (holding that the denial of plaintiff's motion in limine and the erroneous admission of evidence as to p......
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Ellerbee v. Interstate Contract Carrier Corp.
...if applicable. Smith v. American Oil Co., 77 Ga.App. 463, 488 et seq., 49 S.E.2d 90 (1948); see Wendlandt v. Shepherd Constr. Co., 178 Ga.App. 153, 154(1), 342 S.E.2d 352 (1986). The court erred in allowing the opening of the default, no meritorious defense as to any defendant having been s......
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...S.E.2d 186 (1989); F.A.F. Motor Cars v. Childers, 181 Ga.App. 821, 822(3)(a), 354 S.E.2d 6 (1987); Wendlandt v. Shepherd Constr. Co., 178 Ga.App. 153, 154-155(1), 342 S.E.2d 352 (1986). ...
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Cannon v. Lardner, s. 75062
...extent of her injuries was likewise relevant in determining damages. We agree with what was stated in Wendlandt v. Shepherd Constr. Co., 178 Ga.App. 153, 155(1), 342 S.E.2d 352 (1986), a two-judge opinion which did not decide the issue of the propriety of such a charge on the question of da......
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A Better Orientation for Jury Instructions - Charles M. Cork, Iii
...578 (1986) (Bell, J., concurring). 53. Murray v. State, 253 Ga. 90, 93, 317 S.E.2d 193, 196 (1984); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 155-56, 342 S.E.2d 352, 354-55 (1986); Jackson v. Rodriquez, 173 Ga. App. 211, 213, 325 S.E.2d 857, 859 (1984); Mullis v. Chaika, 118 Ga. ......