Weston v. Dun Transp. & Stringer Inc

• Decision Date: 01 November 2010
• Docket Number: No. A10A0861.,A10A0861.
• Citation: 304 Ga.App. 84,695 S.E.2d 279
• Court: Georgia Court of Appeals
• Parties: WESTON et al.v.DUN TRANSPORTATION & Stringer, Inc. et al.

304 Ga.App. 84

695 S.E.2d 279

WESTON et al.v.DUN TRANSPORTATION & Stringer, Inc. et al.

No. A10A0861.

Court of Appeals of Georgia.

April 21, 2010.

Certiorari Denied Nov. 1, 2010.

Killian & Boyd, Robert P. Killian, Brunswick, for appellants.

Howard & Whatley, Thomas G. Whatley Jr., Savannah, Drew, Eckl & Farnham, Brenda K. Katz, Hawkins & Parnell, Michael J. Goldman, Alan F. Herman, Atlanta, for appellees.

ELLINGTON, Judge.

After Thomas Weston's wife, Janet, died in a vehicular accident, Weston brought this wrongful death action in the State Court of Glynn County against Yancey Brothers, Inc. (“Yancey”), Douglas Electrical and Plumbing Company (“Douglas”), Dewey Harper, Dun Transportation & Stringer, Inc. (“Dun”), and Dale Montes.¹ After a hearing, the trial court granted the appellees' motions for summary judgment. Weston appeals, contending material questions of fact remain that preclude summary judgment. For the reasons explained below, we affirm.

On a motion for summary judgment under OCGA § 9-11-56,

the defendant, as the moving party, may prevail by “piercing the plaintiff's pleadings,” i.e., demonstrating that [the] plaintiff will be unable to prevail at trial, even when all doubts are resolved in favor of the plaintiff, because there is no issue of material fact as to at least one essential element of the plaintiff's prima facie case.

(Citations omitted.) Garrett v. NationsBank, 228 Ga.App. 114, 115, 491 S.E.2d 158 (1997). In the alternative, the defendant may prevail

by presenting evidence which establishes a prima facie affirmative defense. In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, because: (1) the defendant would have such burden of proof at trial; and (2) the allocation of favorable inferences between the parties is a jury question. Once the defendant satisfies its burden of proof by presenting evidence to support each element of the affirmative defense, the same burden of proof it would have at trial, the burden of production of evidence shifts to the plaintiff, who will survive summary judgment in the same fashion that she would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense. However, if the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.

(Citations omitted; emphasis in original.) Id. at 116, 491 S.E.2d 158.

Viewed in the light most favorable to Weston, the record shows the following undisputed facts. At about 10:00 a.m. on August 17, 2006, the decedent drove eastbound on Cut Off Road in Glynn County toward an intersection where Cut Off Road dead-ends into Georgia State Route 303 (“SR 303”). The decedent approached the stop sign for Cut Off Road traffic and then began a left-hand turn to go north on SR 303, which had the right-of-way. Her path required her to cross a southbound deceleration (right-turn) lane and a southbound through lane. A tractor-trailer traveling in the southbound through lane struck the decedent's car broadside, killing her instantly.

At the time of the accident, a yellow Caterpillar front-end loader was parked westbound on Cut Off Road. The loader had stalled as Dewey Harper, driving in the course of his employment with Douglas, turned onto Cut Off Road from SR 303. The loader's back end blocked SR 303's southbound deceleration lane. For a driver who was traveling eastbound on Cut Off Road and stopped at the stop sign, the loader prevented the driver from seeing traffic approaching the intersection from the driver's left, southbound on SR 303. Cut Off Road is straight and flat in that area; the loader was visible to drivers traveling eastbound on Cut Off Road for one quarter mile before reaching the stop sign. It is undisputed that the decedent could have reached her destination by reversing course, going westbound on Cut Off Road, and then taking Blythe Island Drive to reach northbound SR 303, or by turning right into the parking lot of a convenience store that is at the intersection of SR 303 and Cut Off Road, driving south across the parking lot, and then turning left onto SR 303 from a point where the stalled loader did not obstruct her view of southbound traffic.

At the time the decedent reached the stop sign, Dale Montes was driving a tractor-trailer southbound on SR 303 in the course of his employment with Dun. Although the speed limit on SR 303 was 55 mph, Montes approached the intersection well below that speed. Another driver, who was approximately one hundred yards behind the decedent on Cut Off Road, saw the decedent's brake lights come on as she approached the stop sign. He saw her brake lights flash again, and then the decedent drove quickly into the intersection and into the path of Dun's tractor-trailer. For purposes of summary judgment, we view this evidence in favor of Weston and his position that a jury could infer that the decedent came to a complete stop at the stop sign, realized that the loader obstructed her view of southbound traffic, slowly inched forward to get a better view, saw that the tractor-trailer was bearing down on her, and, believing that her car's front end was too far into the southbound lane for the tractor-trailer to avoid, suddenly accelerated in hopes of getting out of its way.

Weston contends that the appellees negligently caused the wreck as follows. Yancey is a heavy equipment repair shop to which Douglas took the loader in early August 2006 for repair because the machine was shutting down during use. Yancey released the loader to Harper on the morning of the accident, August 17, 2006. Weston contends that a Yancey employee negligently failed to properly reassemble the loader's fuel rack and that caused the loader to have a tendency to stall. Weston also contends that Yancey's employees negligently failed to do field testing to determine whether the loader was safe to drive on the highway, yet represented to Harper that the loader was ready to return to service.

With regard to Harper and his employer, Douglas, Weston contends that Harper negligently continued to drive the loader after it had stalled once, before the intersection of SR 303 and Cut Off Road. In addition, Weston contends Harper negligently failed to direct traffic or to warn motorists, including the decedent, of the obstruction after the loader broke down.

With regard to Montes and his employer, Dun, Weston contends Montes negligently drove too fast for conditions, given the presence of the loader, and “recklessly tested a known danger,” that is, by not slowing enough to be able to stop if a driver blindly inched out from the stop sign on Cut Off Road into the intersection.

1. Weston contends that, even if the decedent's negligence contributed to her death, there is evidence that each of the appellees was negligent and that only a jury can resolve the issue of the effect of the decedent's negligence relative to the negligence of the appellees. In a related argument, Weston contends that, even if the decedent could have avoided the accident by exercising ordinary care, there is evidence that each of the appellees' conduct was wilful or wanton, and, therefore, the decedent's failure to exercise ordinary care does not bar Weston's recovery.

Under Georgia's doctrine of comparative negligence, where the negligence of the plaintiff joins with the negligence of the defendant in proximately causing the plaintiff's injuries, the plaintiff will be precluded from recovering against the defendant, if the negligence of the plaintiff is equal to or greater than that of the defendant or, if the negligence of the plaintiff is less than that of the defendant, the plaintiff's recovery of damages will be reduced in proportion to his or her negligence. Garrett v. NationsBank, 228 Ga.App. at 118, 491 S.E.2d 158. Under the doctrine of avoidable consequences, on the other hand, “[i]f the plaintiff by ordinary care could have avoided the consequences to himself [or herself] caused by the defendant's negligence, [the plaintiff] is not entitled to recover.” OCGA § 51-11-7.

The plaintiff must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the defendants' negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [The plaintiff] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].

(Citation and punctuation omitted.) Lowery's Tavern v. Dudukovich, 234 Ga.App. 687, 690(3), 507 S.E.2d 851 (1998). Under this doctrine, the plaintiff's negligence in failing to avoid the consequences of the defendant's negligence is deemed the sole proximate cause of the injuries sustained and, therefore, is a complete bar to recovery, unless the defendant wilfully and wantonly inflicted the injuries. City of Winder v. Girone, 265 Ga. 723, 724(2), 462 S.E.2d 704 (1995); Garrett v. NationsBank, 228 Ga.App. at 117-118, 491 S.E.2d 158.² As with other affirmative...