Whitlock v. Moore, s. A11A1475

• Decision Date: 19 March 2012
• Docket Number: A11A1476.,Nos. A11A1475,s. A11A1475
• Citation: 11 FCDR 3477,312 Ga.App. 777,720 S.E.2d 194
• Parties: WHITLOCK v. MOORE et al. (two cases).
• Court: Georgia Court of Appeals

11 FCDR 3477

312 Ga.App. 777

720 S.E.2d 194

WHITLOCK

v.MOORE et al. (two cases).

Nos. A11A1475

A11A1476.

Court of Appeals of Georgia.

Nov. 3, 2011.Reconsideration Denied Nov. 22, 2011.Certiorari Denied March 19, 2012.

Slappey & Sadd, James Nicholas Sadd, Daniel Marshall Epstein, Turkheimer & Hadden, John David Hadden, for appellants.

Harper, Waldon & Craig, Russell D. Waldon, Atlanta, Arnold & Taylor, Erica L. Parsons, Carlock, Copeland & Stair, Frederick M. Valz III, Mathis & Gary, Marc Howard Bardack, Downey & Cleveland, Russell B. Davis, Marietta, for appellees.

BLACKWELL, Judge.

A thief crashed a stolen van into a car occupied by Brenda and Ricky Whitlock, both of whom were injured in the crash. The Whitlocks each filed a lawsuit to recover damages for their injuries, naming not only the thief as a defendant, but also the rightful owner of the stolen van, Alvin David Moore, and his friend, Tram Nguyen. The Whitlocks allege that Moore and Nguyen negligently were chasing the thief at the time of the crash and, by their pursuit, actually caused the crash. Moore and Nguyen filed a motion for summary judgment, and when the Whitlocks offered the affidavit of a police officer in opposition to the motion, Moore and Nguyen moved to strike portions of the affidavit. The court below granted both motions. The Whitlocks appeal, ¹ contending that the court below erred when it granted these motions. We find no error and affirm.

The record shows that, while Nguyen was visiting Moore at his home in Stone Mountain on the evening of November 14, 2007, the two friends saw someone stealing Moore's van, which had been parked in his garage. The van backed out of the driveway and sped away, causing the tires to squeal. Moore and Nguyen lost sight of the van as the thief drove away, so they went out in Moore's car to try and find the van. Nguyen drove the car in the direction in which the van had gone, while Moore called police from a mobile telephone and reported the theft of his van. When Moore and Nguyen came to the end of the street on which Moore lived, they still could not see the van,² and they decided to turn left onto a crossroad, guessing that the thief might have gone that way. After driving down this crossroad for some distance, Moore and Nguyen spotted the stolen van, which was stopped at a traffic light.

Moore and Nguyen pulled up behind the stolen van, and Moore exited his car and walked toward the van. The thief apparently saw Moore as he approached, and although the traffic light was red, the thief suddenly drove the van past the traffic light and turned left onto a busy four-lane road, nearly colliding with several other cars that were approaching the intersection. Moore returned to his car, and after the traffic light turned green, Moore and Nguyen turned left and began again to search for the van, which had disappeared once more from their view. Moore and Nguyen did not see the van again until they came upon the scene of the crash, about a mile down the four-lane road. By that time, the thief had abandoned the van and was running across the road, and other drivers already were out of their cars, attending to the injured Whitlocks. Moore exited his car again and chased the thief on foot, eventually apprehending the thief and holding him until police arrived.

1. We first consider the contention that the court below erred when it struck certain portions of the affidavit of a DeKalb County police officer, which the Whitlocks submitted in opposition to the motion for summary judgment. In the affidavit, the officer says, among other things, that he responded to the crash, interviewed several witnesses at the scene, including Moore, and as a result of these interviews, formed a number of opinions about the events preceding the crash and its cause. Some of these opinions were the subject of the motion to strike, and the court below struck the following averments from the affidavit: ³

[From my interview of Moore, I determined that] Mr. Moore immediately got into another car of his and chased [the thief] in the stolen van. Mr. Moore drove the car in pursuit of [the thief], never losing contact with the van up to the point of the accident.... It is my opinion that the accident involving [the thief] and [Ricky and Brenda] Whitlock would not have occurred had Mr. Moore not been chasing [the thief].

As a rule, an affidavit offered in support of, or in opposition to, a motion for summary judgment must set forth testimony that would be admissible if the affiant appeared as a witness at trial. See Cox v. U.S. Markets, 278 Ga.App. 287, 290(3), 628 S.E.2d 701 (2006). To the extent that such an affidavit instead sets forth inadmissible hearsay, conclusions or opinions, it is entitled to no weight in the summary judgment analysis. See id. An affidavit must be made upon personal knowledge, see OCGA § 9–11–56(e), and as our Supreme Court has explained, if it appears that any portion of an affidavit was not so made, “that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.” Goddard v. City of Albany, 285 Ga. 882, 887(6), 684 S.E.2d 635 (2009) (citation omitted). Whether a specific averment of an affidavit is admissible and, therefore, ought to be considered on summary judgment is committed, like other evidentiary questions, to the discretion of the trial court, and we review a decision to strike an affidavit only for an abuse of that discretion. Cox, 278 Ga.App. at 291(3), 628 S.E.2d 701; see also Munoz v. American Lawyer Media, 236 Ga.App. 462, 465(2), 512 S.E.2d 347 (1999). We see no abuse of discretion here.

With respect to the averments that Moore, not Nguyen, drove his car in pursuit of the thief and that Moore and Nguyen never lost sight of the stolen van, it is undisputed that the officer did not himself observe the pursuit, and it is clear that these averments are based exclusively on an interview of Moore at the scene of the accident. What Moore said to the officer in the course of that interview might well be admissible as a statement against interest, see OCGA § 24–3–31, or, to the extent it contradicts the testimony Moore gave at his deposition, as a prior inconsistent statement. See Cleveland v. Bryant, 236 Ga.App. 459, 460–461(3), 512 S.E.2d 360 (1999) (statements by party to police officer at scene of accident were admissible as statements against interest and, in view of the testimony of that party, as prior inconsistent statements). But the affidavit does not report what Moore said to the officer. Instead, the affidavit sets forth opinions that the officer formed after he spoke with Moore, which might or might not be consistent with what Moore actually said. And as for the averment that the crash “would not have occurred had Mr. Moore not been chasing [the thief],” it is equally clear that this averment likewise reflects only an opinion that the officer formed based upon his interviews of witnesses at the scene of the crash.

Although an experienced police officer can be qualified as an expert to give opinion testimony about the cause of a traffic accident, see McMichen v. Moattar, 221 Ga.App. 230, 231(1), 470 S.E.2d 800 (1996), it remains settled law in Georgia that expert opinion testimony is unnecessary and improper if a jury would be able to ascertain the cause of the accident on its own and without any such testimony. See id. Put another way, “ expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible [only] where the conclusion of the expert ... is beyond the ken of the average layman.” Emory v. Dobson, 206 Ga.App. 482, 483, 426 S.E.2d 50 (1992) (citation and punctuation omitted). Here, it appears that the opinions stricken by the court below are not based on an examination of physical evidence that jurors without training and experience in accident investigation might be unable to properly evaluate, such as “skid marks, distances, and the positions of and damage to the involved vehicles.” See Purcell v. Kelley, 286 Ga.App. 117, 118(1), 648 S.E.2d 454 (2007). Instead, these opinions seem to be based entirely on information that the officer learned from his interviews of witnesses at the scene. We have no reason to think that a jury cannot assess the statements of witnesses as well as an officer, and for this reason, the court below did not abuse its discretion when it disallowed the opinions of the officer about the circumstances of the pursuit of the stolen van and the extent to which the pursuit caused the crash. See id. (police officer could not properly opine about color of traffic light at time of accident where his opinion was based on interviews of witnesses at scene and not on investigation of physical evidence).

2. We next consider the contention that the court below erred when it awarded summary judgment to Moore and Nguyen. The standard for summary judgment is familiar and settled:

Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law. So, to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial ... the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a...