*1 Bumgartner, Whelchel, Bondurant, Elmore, Mixson & & J. Thomas Lowrey appellee. TV, Frank M. COPE v. ENTERPRISE RENT-A-CARet al.
A01A0224. Presiding Judge. Andrews, Cope appeals granting from the Aimee trial court’s order sum- mary complaint judgment Enterprise to Rent-A-Car on her for dam- ages rented after a truck she broke down on Interstate 20. Because Enterprise any duty there is no evidence breached of care and any alleged also no evidence that breach was the Cope’sinjuries, we affirm. Cope Enterprise
This case arose when rented a truck from Georgia, Super Cope Norcross, rented the truck on to drive to New Orleans for the Bowl.
Thursday, Thursday Friday, drove it to work and Saturday morning. Cope and then left for New Orleans on drove the spent leaving truck there, to New Orleans and the weekend around Monday Cope driving through noon on to drive back to Atlanta. was nearing Georgia engine” light Alabama line when the “check began power, Cope pulled came on. The truck to lose and over into emergency lane of 1-20. Shortly pulled pulled over, after she a man in a truck in behind Cope her truck and asked if she wanted ride. said she did not and police. asked him to call The man offered take a to look under the Cope, standing hood, truck, who was beside said he could. Cope up opposite told him to walk on the side of truck from where standing, agreed. Cope she was and he The man told that the alter- Cope nator belt had come off and offered to tow her to the next exit. agreed, get rope. got and the man went back to his truck to He rope walking rope and was toward her with the in one hand and a suddenly beer bottle in the other when he hit her the forehead Cope with the hit him in forehead, bottle. the nose with her and the put rope Cope’s man around neck and threw her down the hill. struggle putting Cope’s ensued, with the man his hand inside jeans Cope trying fight During struggle, him to off. he hit Cope trying pin her, several times the face and sat on her down ripped ripped open jeans arms. The man had her shirt and her when Cope punch was able to free one arm and him in the throat. He rolled being Cope hit, truck, off her after started for her back scream- ing gun going that she had a and she was to kill him. man on the running Cope got gun kept truck, started for his she jumped front seat and fired it in the air. The man into his truck and Cope get engine. drove off. was able to back her truck and start the get help. able to where she was next exit the truck drove She some time the truck to inspect back went and her brother Cope found that They office. at the sheriff’s it was still later while the oil her that also told brother missing. belt serpentine dirty. air filter was and gritty black looked alleg- Enterprise, against complaint the instant then filed *2 negligence and this the truck maintained negligently it had that ing judg- summary moved Enterprise injuries. her cause of was the to failure alleged any that no evidence there was ment, claiming also claimed Enterprise the belt to break. caused the truck maintain act such that criminal an Cope on that the attack proxi- not the the vehicle was maintaining alleged negligence any motion, and granted The trial court injuries. Cope’s mate followed. appeal this issue of genuine is no when there proper
Summary judgment matter of as a judgment to the movant is entitled fact and material (c). a defendant summary judgment, 9-11-56 To obtain law. OCGA § to an absence of evidence, only point but must any produce need not the plaintiffs element of least one essential at supporting evidence (1991). 474) (405 Haskins, SE2d v. Corp. Lau’s claim. novo, and we view is de summary judgment grant review of a Our it in the light inferences drawn from and all reasonable the evidence Pruitt, 232 Ga. App. Supchak to the nonmovant. most favorable of action elements of a cause In this state the essential (1) conform to a duty are: negligence legal based on protection raised the law for the standard of conduct (2) harm; a breach of unreasonable risks of against others (3) standard; causal connection legally attributable this (4) and, some resulting injury; between the conduct legally protected to the damage flowing plaintiffs loss or legal duty. as a result of the breach of the interest omitted.) (Punctuation Wessner, 161 Ga. App. Center v. Bradley (1) (287 hire The of a bailor for legal duty care. Hertz ordinary is one of public automobiles renting when Benson, 866, 867 Stations v. Driv-Ur-Self us is evidence in the record before The 1. Causation fact. failed. serpentine belt the truck broke down because have failed. why reasons the belt could witness two gave expert tensioner, or the with the something wrong There could have been The who apart. expert, and split have a crack developed belt could photographs, at itself but instead looked examined the truck never acknowledged believing that he had no basis for there was anything with tensioner. He out in the wrong pointed nothing pictures which showed a with the tensioner and admitted that problem statement was mere on his this state- speculation part. Accordingly, ment does not even raise an inference of negligence. expert’s
What is left then is the opinion serpentine belt could have cracked broken. stated several times that expert cracked “it can go any once belt was time.” He testified that if a cracked, serpentine visibly belt is it has no useful life left and a vehi- cle could travel no more than 100 with a cracked miles belt. 1,286
Cope drove the truck miles after she rented it from Enter- prise until it broke down. From her own expert’s testimony, crack that was visible before rented the truck would have long caused the belt to break it actually By before did. her own evi- dence, Cope negated Thus, has an essential element of her claim. because she has introduced no evidence sufficient to raise a triable issue of fact on whether duty breach of a of care was a cause injuries, fact of her the trial court correctly granted summary judg- ment to Enterprise.
2. Proximate cause. The issue here is whether the attack on Cope was a concurring proximate injuries, cause of her together with *3 truck, negligent inspection or whether the criminal attack intervened and became the sole proximate cause. Cope’s only in evidence of her claim that the support alleged negligent inspection of her truck was a concurring proximate cause of her injuries was the opinion of a testimony private investigator. He testified at his deposi- tion that the to him question posed was whether it was foreseeable that an individual by who broke down the side of the might road be subject to criminal attack. investigator The answered that it is fore- seeable that an individual who breaks down on the interstate can But, come to harm. the investigator had no pertinent figures facts or to support opinion. his He had no concerning statistics the of number people who have broken down on the interstate who have been attacked; instead, he “just history stated that itself you tells that.” general
The
rule applied to this issue was set forth by the
Supreme
Webb,
Court
Southern R. Co. v.
While the general if, rule is that to an subsequently original act, or wrongful negligent intervened, a new cause has of itself sufficient to stand as the the misfortune, remote, former considered must be as too still if the charac- ter of the intervening act claimed to break the connection between the act original wrongful subsequent injury was such probable that its or natural consequences could or foreseen reasonably anticipated, apprehended, have been is not the causal connection bro- original wrong-doer, is for all of the ken, original wrong-doer responsible intervening from the act. consequences resulting 1; Johnson, hn. Blakely Id. at Webb, general Supreme
In rule expounding upon from case recognized may applied differently Court the rule be further stated that: to case and inquiry
[T]he as to natural cause and conse- is to answered in accordance common sense quence be with A and common ... natural is understanding. consequence of, which the original complained one has followed from act usual, ordinary, experienced in the course of events. result, therefore, which have antici- might reasonably been however, expected. consequences, or Natural do not pated necessarily include all such as a calculation of chances upon occurrence, extreme possible would be found of or such as but those which ensue from prudence might anticipate, original extraordinary act without such coincidence as that conjunction or circumstances usual course nature should seem to have been A tor- departed from. ... act may consequences, tious have several concurrent or suc- cessive, for all of which the first tort-feasor is It responsible. is not but consequences, intervening causes [the which relieve from original wrongdoer liability]. found,
test is to be . . . not the number of intervening agents, character, events or but in their and in the natural probable wrong connection between done and injurious So as it consequence. long affirmatively appears the mischief is attributable as a original wrong result which have might reasonably proba- been foreseen as ble, legal liability continues. ... In what determining *4 is, cause the rule that the proximate injury true must be the probable consequence natural and of the such a negligence, consequence surrounding as under the circumstances of the might ought wrong- case to have been foreseen likely doer as to flow from his act. . . . The must be injury the direct result of the misconduct but it will not be charged; if, according considered too remote to the usual experience mankind, ought apprehended. result to have been (Citations omitted; Webb, 116 punctuation emphasis original.)
652 (1).
Ga. at 155-156 “An intervening criminal act of a third party, without which the would injury occurred, not have will be treated as proximate cause of the injury breaking thus the causal connec- tion between the defendants’ negligence and the injury unless the criminal act a reasonably consequence foreseeable of the defend- (Punctuation omitted.) ants’ conduct.” Alexander v. Sportslife, 232 (502 (2) 538, App. Ga. 540 SE2d
Applying the cause discussion Webb to the present in. case, we see that the attack on was not a natural consequence out flowing negligence of Enterprise, but rather an intervening Cope’s injuries. An intervening cause is too “ remote to be foreseeable if it ‘furnished the condition or occa- ” sion of the injury,’ Church’s Fried Lewis, Chicken v. 150 Ga. App. (1) (B) (256 916) 154, 157 (1979), and that is what occurred in this case.
In3. light holdings of our 2, Divisions we need not address claim that the trial court erred denying her motion to strike the affidavit Mattus, of Mark the vehicle repair supervisor for Enterprise. That affidavit was immaterial to the decision. Judgment Johnson, J., Smith, J., P. P. affirmed. Ruffin JJ., Ellington, Miller, JJ., concur. Eldridge and dissent. Judge, dissenting.
Miller, In my view, not only is there evidence of a breach of the duty of care, but the issue of foreseeability go should to a jury. Therefore, I must respectfully dissent.
Generally, an criminal act of a party, third without which the injury would occurred, not have will ... be treated as the proximate cause of the injury thus breaking the causal connection between the [’s] defendant negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendant [’s]conduct. [Cit.]1 So if the character intervening act claimed to break the causal connection “was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is broken, not original wrong-doer is responsible for all the consequences resulting from the intervening act.”2 With respect issue of proximate 1 (Emphasis 268) supplied.) Wright Ashe, (1996) 220 Ga. (whole court). (a) (26 Grier, 327, 328, Accord Williams v. hn. 2 Webb, Southern R. Co. v. hn. 1 SE
653 “ is neg- the actor cause, ‘no difference whether it makes is intentional, by Even criminal conduct others or criminal. or ligent Inc.,4 Lay Munford, In in [Cit.]”3 reasonably to be anticipated.’ often circumstance, question Court “The of held: Supreme a similar statutory by [former] foreseeability duty imposed reasonable 51-3-1], ordinary care [now OCGA to exercise [Ann.] Code 105-401 § § case, is for a jury’s circumstances of this protect plaintiff adjudication the courts.”5 summary by rather than determination its statute, keep rental cars must vehicles By the bailor of the vehicle is free for hire and further warrants repair suitable for it unfit for the which it rendering purposes from secret fault consumer, for a renting To the ordinary purposes was hired.6 conveniently, travel safely, vehicle to conduct and complete are by road, stranded it is economically. When traveler the side ordinary of to realize beyond apprehension foresight not advantage and would to take criminal of that attempt someone could Therefore, foreseeability of question situation.7 reasonable duty ordinary OCGA 44-12-63 to exercise statutory imposed by § care to from secret defects this case is protect plaintiff bailee summary adjudication for determination rather than jury’s courts. In court erred in my opinion, granting Enterprise’s the trial summary judgment. motion for
I Judge joins am authorized to state that Eldridge this dis- sent. 2001 July 6, Decided 2001 July
Reconsideration denied Dean, Therrell, Roberts, Smith & R. Burdges, Peter John R. for appellant. Atkinson, Magill, & E.
Magill Thomas appellees. 3 (2) (210 Arnold, Warner v. 133 Ga. 177 4 5 Id. 341. at OCGA 44-12-63 § (2) (439 See, Boys &c., App. 534, e.g., Wallace v. Club (1993) (whole court) (absence prior danger and assaults does not render the abductions law). unsupervised such criminal attacks on an child unforeseeable as a matter of