*1 622
summary judgment to her. Presiding Carley
I аm authorized to state that Justice join Thompson Justice in this dissent. July 5, Decided 2010 July 26,
Reconsideration denied 2010. Gray, Rust, Amand, & Brieske, St. Matthew G. Moffett, Moffett Wayne Hartley, Hartley, Phillip Melnick, S. Harben & L. Martha M. appellant. Pearson, for Roddenbery
Holland, Blitch, & Schaefer, D. Blitch TV, James appellees.
Womack, Rodham, Womack, & Gottlieb Ronald R. Steven M. Rodham, amici curiae.
S09G1177. COWARTet al. v. et WIDENER al. 779)
(697 SE2d NAHMIAS, Justice. plaintiffs wrongful Roby in this death case are E. Cowart,
Sr.’s estate and his two adult children. The defendants are Cowart’s trucking company Widener, Lee brother-in-law Nathan for which company’s Widener drove, and the insurance carrier. The trial court granted summary judgment concluding to the defendants after that plaintiffs proximately that establish Widener caused producing expert they Cowart’s death without evidence, which had Appeals failed to do. The Court of affirmed. See Cowart v. Widener, (675 591) (2009). App. granted 296 Ga. 712 SE2d certiorari, We (1) posing questions: expert required two whether evidence is simple establish causation in a question case where medical (2) involved; so, is what constitutes a “medical question” require expert testimony. so as to such explained typically below,
As Division 2 is not required prove simple negligence e.g., See, causation in a case. Self Baptist v.Exec. Comm. the Ga. Convention expert of Ga., required However, evidence is where a involving truly question” specialized knowledge “medical (rather knowledge than the sort of medical that is within common understanding experience) needed to establish a causal link plaintiffs injury. e.g., between See, the defendant’s conduct and the Taylor Hosp., Gilbert v.R. J. Mem. & n. 4 580, 581 341) (1995) (whether plaintiff actually required had cancer treatment); Sutton, Ga. Co. v. Allstate Ins. (whether 909) (2008) plaintiffs’ exposure to mold caused ailments). respiratory wrongful do death case because This an unusual allege killed caused the internal that Widener in a failed render aid to Cowart Cowart, but rather that prevented way As discuss in Division his death. we have *2 — ordinary produce below, failed to evidence 3 expert — showing circumstances, and under these unusual causation summary judgment properly granted to therefore the trial court defendants. (a) summary judgments reviewing are The standards for 1. pleadings, depositions, Summary judgment proper “if the is settled. intеrrogatories, together file, and admissions on answers to any genuine any, is issue as to affidavits, if show that there no moving judgment party entitled to a as fact and that the is material (c). § prevail Thus, 9-11-56 to on a motion a matter of law.” OCGA “ moving summary judgment, party ‘the must demonstrate that for ” genuine Montgomery Barrow, fact,’ is issue of material v. there no (692 351) (2010) (citation omitted), 896, SE2d so 286 Ga. 898 City Kaplan party judgment v. law,” entitled to as matter “is (690 395) (2010). Sandy Springs, 559, 560 SE2d 286 Ga. negat- may by presenting “A defendant do this either evidence establishing ing plaintiff’s from an essential element of the claims or Ogle- support the record an absence of evidence such claims.” (516 531) thorpe Group 173, Coleman, Dev. v. 271 173 SE2d Ga. (1999). summary regard judgment” Thus, “the rule with proof who will bear the burden at trial defendant affirmatively nonmoving party’s disprove case,
need may point but out reference to the evidence in the record support that there is an absence of evidence to essential nonmoving party’s element of the case. (560 650) (2002). Enterprises, Nix, 801,
Cox
Inc. v.
803
SE2d
summary
“discharges
moving
Where a defendant
for
nonmoving
pleadings,
party
rest on its
burden,
this
cannot
specific
giving
to a triable issue.”
rather must
rise
474)
(1991).
Corp. Haskins,
491,
Lau’s
v.
261
491
See
Ga.
(e) (“When
§
motion
OCGA 9-11-56
supported
provided
section,
Code
an adverse
made and
this
may
upon
allegations
party
not rest
the mere
or denials of his
provided
pleading,
response,
as otherwise
but his
affidavits or
showing
specific
section,
facts
that there is
this Code
must set forth
summary
respond,
genuine
If
so
issue for trial.
he does not
him.”).
judgment,
appropriate,
against
shall be entered
Summary judgments enjoy
presumption
no
of correctness on
appeal,
appellate
satisfy
and an
court must
itself de novo that the
(c)
requirements
§
of OCGA 9-11-56
have been met. See Chester v.
128) (2009);
City
Smith,
401,
Merlino v.
Atlanta,
186,
Ga.
In our de novo
grant
summary judgment,
review of the
aof motion for
we must
evidence,
“view the
and all reasonable inferences
therefrom,
drawn
light
Kaplan,
most favorable to the nonmovant.”
drawing all reasonable inferences from the record evidence in their favor, the record shows as follows, with the facts that are based entirely expert testimony so noted. On November Augusta, Georgia Nathan Lee Widener left bound for Ohio in his freight Transportation, tractor-trailer to deliver for United Inc. (UTI). Widener’s contract with UTI allowed him to choose his own having passengers routes but along barred him from ride unless writing by authorized in carry passengers, UTI. UTI did not authorize Widener to 43-year-old Roby
but his brother-in-law, E. Cow- trip. art, Sr., rode with him on this *3 unemployed, Cowart had fallen on hard times. He was had no
money, living and had been out of his car. Widener was married to couple began sister, and feeding the him took in and and clothing him. problems, Cowart suffered including from a number of health esophagitis by gastric coming severe erosive caused acid into contact esophagus. experienced with the oozing As a result, Cowart of blood narrowing esophageal in his throat and a of the wall, and it was not cough up unusual testimony for him Expert to small amounts of blood. explained later esoph- that blood is an irritant, аnd that ageal vomiting, can cause which in turn can lead to a potentially rupture esophagus. fatal planned
Widener to leave for Ohio in the afternoon. That morning, along. Cowart asked Widener if he could ride Widener’s feeling, wife asked responded Cowart how he was and Cowart that he good, get Augusta, felt that he wanted to out and that he wanted go point, to with Widener to Ohio. At one his mouth with a Kleenex as a Widener saw Cowart cover
purplish substance trickled out the simply wiped side of his mouth. Cowart off, it flushed the tissue down toilet, and went back to bed to lie down. Widener had seen Cowart with some blood on the corner of his mouth on several mornings during past couple they months, as had his wife. When right, yes, would ask Cowart if he was all he would tell them and that he “does that all the time.” Widener’s wife had tried on several go emergency room, get a doctor or to to Cowart to see occasions always refused. he planned. that as left for Ohio afternoon Cowart and Widener following day, p.m. the two Dеcember as Around 2:30 Kentucky-Tennessee near on Interstate 75 traveled north men closing him” in on “throat that his was border, Cowart told Widener spitting up he told Cowart blood. Widener and that he was feeling to lie he wanted fine, he was ill, said but Cowart looked sleeper compartment, not him. Cowart and to bother in the down separat- compartment, sleeper closed the curtain into the then went ing lay the bottom bunk. cab, down in it from the front of the and requested medical assistance. is no that Cowart ever There Lexington, approached truck later, hours About three Kentucky, extremely began odor, foul to smell an Widener expert testimony after characteristic of diarrhea later indicated was stop bleeding. pulled Widener into truck substantial internal he do. She her wife, nurse, his ask her should asked called to what alive, told her that he did not know. and Widener brother was still pulse he to check Cowart’s and see whether was She told him breathing. finding that was not instructed, did as Cowart Widener breathing pulse; Nevertheless, no he dead. and had was Widener pulled stop, seat, to out of the truck returned the driver’s explained he on Ohio. that was concerned continued to Widener later body get Georgia back how his brother-in-law’s dead to about if he bring did him in truck when he returned home. midnight early morning 2, 2003, Around on December Wid- pulled stop Columbus, a rest about miles north of Ohio. ener into accidentally his truck into another truck at the rest backed stop, causing damage. Highway An re- minor Ohio Patrol officer acting sponded According to the officer, the incident. Widener was very repeatedly alone did nervous and stated that any passengers. kept glancing The officer have noticed Widener sleeper compartment, him back at curtain so she asked open telling jokingly it, him that she needed to “make sure he didn’t my responded, “Well, have brother-in-law is back dead bodies” back there. Widener
there, but I don’t think he dead.” signs trooper of The had Widener check Cowart for life while she already backup. body cold, and Widenеr later called for The was past he had least the five or six hours admitted that known at morgue body was taken to that Cowart was dead. Cowart’s local hospital. briefly police speaking examin-
After with the and Widener and likely ing body, concluded that Cowart’s death coroner per- autopsy no causes, natural and that would be resulted from requested spoke family The coroner with one. formed unless autopsy necessary. who said sister, that an would not be “exsanguination” The coroner listed cause of death after two “gastrointestinal hemorrhage” resulting years hours of from peptic explained ulcer The later disease. coroner that the two-hour figure approximation was an based on when said he last saw long Cowart alive and the coroner’s Cowart estimate how had been body. dead when The he examined coroner also testified that a person hemorrhaging internally asleep can and not realize what is only happening. sleeper The blood found in the cab truck’s or compartment granulated awas small amount of at the blood corner and Cowart’s mouth on some tissues he had used. plaintiffs wrongful against
The filed a death suit Widener, UTI, carrier, UTI’s insurance American South International Insur- (AIS). Company complaint alleged negli- ance that Widener gently intentionally deprived necessary Cowart medical atten- thereby causing tion, his death. UTI named as a defendant based respondeat superior liability, and other theories of and AIS was brought Georgia’s § in under action statute, direct OCGA 46-7-12.1. Following discovery, extended the defendants filed motions for summary judgment, granted. which the trial court The Court of Appeals granted plaintiffs’ petition affirmed, and we for certio- rari. questions posed granting
2. We that both believe this Court easily Georgia’s certiorari are answered based on case law and basic principles regarding expert necessary prove when evidence is fact.
(a)
broadly
“[t]here
require-
this Court
Self,
stated
is no
expert testimony
produced by
plаintiff
ment that
must be
to a
prevail
weight given
action
order to
at trial. The
expert testimony in such
fact,
cases is for the trier of
who is not
required
give
controlling
influence.”
simple negligence produce expert cases need — subsequent evidence on causation cases from this Court and Appeals recognized exceptions. the Court of have also are that there
627 plaintiffs expressly cause of Gilbert, we noted Thus, malpractice, simple negligence not medical we and action was requiring questions raised, are held that “medical nonetheless expert County (citing Hosp. n. 4 Cherokee 581, evidence.” 265 Ga. (1986)). (345 904) App. In 200, 205 SE2d Beaver, v. 179 Ga. Auth. plaintiffs simple cases, forward must come short, even summary expert motion for evidence to survive a defense with relating questions” judgment, to causation are where “medical involved. — (b) question such a what The second certiorari constitutes — question” the case law and standard “medical also answered regarding ordinary expert principles context, this and evidence. In question” has been used to describe situations term “medical conduct of a link between the defendant’s where the existence causal plaintiffs injury common cannot be determined from knowledge experience requires and instead the assistance experts specialized e.g., Phelps knowledge. See, v. CSX (634 112) (2006); Transp., App. 330, SE2d Eberhart v. 280 Gа. 335 832) (1987); College, App. 516, 181 Morris Brown Ga. 518 (b) (“If § App. also Beaver, 179 Ga. at 204. See OCGA 24-9-67.1 knowledge specialized scientific, technical, or will assist the other or trier of fact cause of action to understand the evidence to expert by qualified issue, determine fact a witness knowledge, experience, training, may testify skill, or education opinion specified [where thereto in the form of an or otherwise three met].”). criteria are simple question” may term “medical not be the best
description
concept,
everyday meaning
its
does
this
because
convey
the distinction between cases where
must come
they
forward with
not.
on
and cases
causation
where
do
parlance,
any question
In
common
“medical”
“of
practice
study
or
connected with
of medicine.” Webster’s
(2d
1987).
Collegiate
Dictionary
New
sense,
World
496
ed.
In this
questions”
almost all deaths could be
to
said
involve “medical
relating
many people
precision
How
causation.
could describe with
gunshot
actually
how а
wound
the head
causes the death of a
being?
lay
require expert testimony
human
But it does
for a
gunshot
to
healthy person
determine that a
wound
the head of an otherwise
shortly
proximate
died
was the
who
thereafter
cause
death.
her
particularly
given
responsibility
This is
true
the broad
Georgia
places
consequences
law
for the
of a breach of
causation includes all of
tortfeasors
duty.
proximate
legal
context,
the tort
probable consequences
negli-
of the tortfeasor’s
the natural
gence,
independent
intervening
unless there is
sufficient and
857)
Blakely Johnson,
572,
cause. See
v.
220 Ga.
574-576
(1881).
(1965); Perry
R.R.,
Moreover,
v. Central
they
Systems
their
AT
tortfeasors take
victims as
find them. See
150) (2005);
Carnes,
Southeast v.
(3rd ed.).
Injury
§
Damages
Stein,
Jacob A.
Personal
11:1
If the
person
negligently
happens
hemophiliac
a tortfeasor
cuts
to be a
who
survived,
bleeds to death where most others would have
the tortfea
responsible
wrongful
sor remains
for that
death. See Coleman v.
*6
GynecologyGroup,
App.
Atlanta
&
508,
Obstetrics
194 Ga.
510-511
856)
(398
16)
(1990),
(1990);
aff'd,
SE2d
knowledge experience, expert and wrongful without the need for testimony. theory Thus, in a death action based on the that proximately by stabbing the defendant caused the decedent’s death gut, plaintiff required, response her for the ato motion summary judgment, expert testimony to come forward with explaining precisely in medical terms how the wound led to her death. Where the causal link between defendant’s conduct and injury by lay jury expert the decedent’s guidance, can be determined a without expert produced no evidence need be to defeat a defense summary judgment. e.g., motion for See, v. State, Jester 250 Ga. 555) (1982) (“[T]hat penetrating 119-120 a stab wound entirely through death, the heart causes is not a matter . .. which expert require testimony.”); App. should Sutton, even at 160 (“[Wjhether [is] question a to blow the head could cаuse death that lay person’s knowledge”); we have held to be within a Jordan v. 714) (1989) App. (holding Smoot, that whether an automobile collision caused a backache later the same day type requires expert is not the of medical that testi- mony).
However, sometimes the link between a defendant’s actions and plaintiffs injury beyond knowledge experience. common example plaintiff An be a There, would toxic tort case like Sutton. alleged daughter ongoing that she and her suffered and exacerbated respiratory exposure ailments as result of to mold in their home by faulty repairs plumbing caused and remediation work after a leak. See 290 Ga. at 159-160. The trial court denied the defendants’ grounds, motion for on causation but the Court Appeals noting diagnosis “[t]he potential reversed, continuance of a disease or other medical condition are ‘medical questions by physicians expert to be established witnesses and not ” (citation omitted). by lay persons.’ Id. at 160 The court held thаt any expert failure to to respiratory establishing link conditions and a causal between summary judg- entitled to meant that the defendants were mold ment. id. at 159-160. See concept. The defendant involved a variation on this
Gilbert
biopsy
hospital performed
diagnostic
Sharon
breast
specimen
way
hospital employee
on the
to the
Gilbert, and a
lost the
laboratory.
pathology
the loss of the
See
expert did, fact, from that Gilbert affidavits two doctors cancer, and the treatment received. See id. have thus she needed she negli- diagnosis disprove That the causation element of her gence by jury expert claim, but it could not be determined without point, Thus, evidence. at that was incumbent on Gilbert come creating a forward with evidence material issue of fact on the opining element of causation. She did so with affidavit impossible hospital’s experts say it was for the to a reasonable *7 degree certainty of medical that she had the limited cancer based on upheld information available to them. See id. We the trial court’s expert genuine determination that Gilbert’s of fact on the material evidence created issue question precluding summary causation, hospital. in favor of the See id. deciding required Thus, the whether is to come expert testimony forward with to withstand a defense motion summary judgment, question the critical is not whether the causa- question” generic tion element involves a “medical in the sense of Rather, whether, the term. it order to decide that the defen- proximately injury, lay plaintiffs jury conduct dant’s caused the questions” would have to know the to one or more “medical answers that, term, case be as the law has defined that can answered accurately only by knowledge. specialized expert To witnesses with clearly deciding cases, make the term we more reflect its use will “specialized questions.” the reasons now refer to discussed medical For expert required in mine run above, such evidence is not the required negligence simple cases, in some cases.1 It should therefore he clear that we are not “reject[ing]” the phrase “medical question." parties apply general direct the the
3. We did not answers to posed specific questions on certiorari to the the two we facts of this step, parties case, but that is the natural next and the did so in their argument. briefs and at oral We address that issue both to will analysis resolve this case and to demonstrate the discussed in explain any specialized that, Division above. We first aside from questions, plaintiffs the mediсal have not met their burden to show addition, causation based on assuming record evidence. and even (as testimony that Widener’s were disbelieved the dissent it), plaintiffs would have have failed to offer the specialized that would be needed on the of whether bleeding Widener’s failure to render aid based on Cowart’s internal preventing could have made a difference in Cowart’s death. (a) plaintiffs showing The focus on that Cowart’s death was bleeding. They evidence, “caused” internal insist that the viewed favorably proves them, most death, Cowart bled to because only coroner, that was the conclusion of the medical doctor to body. They examine the also to the of Cowart’s treating physician esophagitis that Cowart had severe erosive from gastric gus, exposure, esopha- acid blood which caused to ooze from his physician’s as well commonsense observation that bleeding period internal is left untreated over hours, “death likely They be result.” note Widener’s admission that spit up Cowart blood the hours before he died and claim that there anything bleeding. is no evidence that Cowart died from but internal The maintain that issue of inappropriate, causation was because confronted with undis- puted bleeding subsequent evidence of internal and Cowart’s death long period could draw the reasonable inference that it was the bleeding unchecked that caused Cowart’s death. plaintiffs, trying wrong question. however, are to answer the
They allege bleeding; do not that Widener caused Cowart’s internal parties stipulated Rather, he died of natural causes. plaintiffs allege that Widener failed to secure medical assistance in stop killing time to the internal Thus, from Cowart. *8 Dissenting Op. endorsing qualifier “specialized” at but rather the use of the term with the sense, legal everyday to ensure that it is a understood as term of art rather than in its which simple negligence is in overbroad the context. 2 aid, To succeed on a tort claim a based on failure to render the must show that 810) Hixson, lеgal duty the defendant a had to render aid. See Allen v. 460 SE Ga. (1900) (“No perform humanity, cause of action arises from a failure to an act of if such failure (Second) (1965) law.”); duty imposed by § involves no breach of a Restatement of Torts (“The part necessary fact that the actor realizes or should realize that action on his for action.”). protection impose upon duty another’s aid or does not of itself him a to take such The parties dispute issue, summary judgment this but the trial court did not address it in its order. wrongful they prevail claim is their death must to causation show rather that death, but internal caused Cowart’s not that failing by to render or seek assis Cowart’s death Widener caused “ of is not a cause the ‘The defendant’s conduct tance for Cowart. Prosser, have occurred without it.’ Law event, if the event would (4th 1971), Corp. Davis, v. Gen. Motors Ed. 239.” Torts Thompson, v. AccordZwiren 495, 496 (2003). 862) summary their for motion 498, 500 “point[ed] supporting defendants have materials, and by in the record that there out reference to the evidence рroperly understood element absence of evidence” on this plaintiffs plaintiffs’ Enterprises, case, 21A Ga. at and the Cox non-expert, “point specific evidence,” to to and have failed reasonably preponderance of from conclude proximately that Corp. conduct caused Cowart’s Widener’s (e) (“When § 491; Lau’s Ga. at 9-11-56 death. OCGA supported provided in for is made and as motion may party upon section, an adverse not rest the mere this Code allegations pleading, response, his of his affidavits denials provided specific section, in forth or as this Code must set otherwise genuine showing that for If he does not so facts respond, there is a issue trial. summary against judgment, appropriate, shall be entered him.”).
(b) specify in time dissent, Like the do known needed which Widener knew or should have that Cowart undisputed The immediate attention. facts show up cough blood, uncommon Cowart small amounts of (Widener’s wife) that he had resisted entreaties from his sister nothing seek medical when he Thеre is in the record attention did so. person evidence that would indicate to a reasonable Widener’s position bloody Lexington, spittle that, as he drove to major complaint closing about his throat indicated internal hemorrhaging type suggests killed him, that the evidence opposed esophageal oozing part of blood minor that was day-to-day his life. Nor did demonstrate unusual normal Cowart going asking condition, about his to lie down instead of concern much as had done at assistance, Widener to seek medical Cowart symptoms. previous morning experienced when he similar home simply indicating record that Widener Widener There is should have realized that this time was different no evidence — until issue, light Appeals we need of our did not address the not either Court also granted summary judgment holding properly the trial court based on causation element. *9 began approached Lexington, pulled to smell the foul odor as he over already Cowart, to check on him found dead. plaintiffs argue, expert testimony true,
It is as the that no is jury needed to enable a to determine that one left to uncon- bleed may trollably just big for hours die. But it is as true that there is a bleeding bleeding internal difference between comes to its observation and external when it people. person profusely other aWhen jury bleeding externally, may be able to infer a causal link between a failure to secure medical assistance for the individual one who duty shortly has a to render aid and the individual’s death thereafter. lay jurors That is a medical about causation that are qualified by experience and common sense to answer. The same would be true of someone who has been shot and suffered more than unresponsive being wound,” a “flesh scious, who is after knocked uncon- visibly clutching breathe, who is unable to or who is his chest pain suffering possible while heart attack. These are all external signs average person signify that an would understand to that a person deep physical requiring prompt is in distress medical assis- tance. bleeding,
But the same often cannot be said of internal no profuse, externally matter how unless that condition is revealed cause, has in this case. observed traumatic and there is no evidence of either expert testimony
Indeed, in the record indicates that hemorrhaging internally may an individual be unaware of his own average bystander way knowing condition. The would have no problem, there was a serious much less be able to determine the point person emergent sought, at which medical care should be unless that imagine involving
manifested his distress. One can scenarios average person internal where it would be obvious to the — example, person that medical attention is needed where a sees get by fast-moving major someone hit car or suffer other blunt- force trauma. Under these circumstances, even if there were no significant injuries, jury might external conclude that a reasonable person duty awith to care would realize the neеd to seek immediate possibility injuries. medical assistance due to the of internal That is far from the here, situation however. A could not relationship find a causal between Widener’s failure to render aid at undisputed the time the evidence shows that he first observed stop Lexington, distress, Cowart in real at the truck and Cowart’s bleeding, death from internal that, which occurred sometime before Tennessee-Kentucky between their interaction near the border and Lexington. their arrival in
(c) any The dissent does not contend that there material beyond just evidence in the dissent Instead, case what we have reviewed. argues “self-serving that Widener’s statements about the disregarded symptoms” be- external should be extent of Cowart’s says dead and cause, smelling after he that he discovered Cowart even driving body Lexington, near he continued awful Dissenting Op. does not hours to Ohio. at 639. dissent for several point actually evidence that contradicts Widener’s account — happened in his truck no evidence that Cоwart would no what displayed symptoms died; have more serious external before dispute wife, he did not call with the of Widener’s whom stopped Lexington until he near and who confirms that Widener said non-responsive time; that her brother at that no inconsistent actually physical evidence, such as an indication that Cowart was *10 bleeding profusely nothing. truck; in the Nor is this a case where the testimony self-contradictory point on a material witness’s sworn explanation, disregard requires the court to without portions testimony moving party. that favor the See CSX (579 Transp. Belcher, 522, v. 276 Ga. 523 Wide- symptoms sequence ner’s account of Cowart’s external and the of Moreover, has been consistent. while after events Widener’s conduct finding explained unusual, Cowart dead was that he was con- body get cerned about how his brother-in-law’s dead would back to Georgia bring if him in he did not it with his truck. Given that penniless uninsured, Cowart was it was not outlandish to in happen body reported if wonder what would the dead were (where Kentucky surely the authorities not have allowed would truck). away all, Widener to drive it in his After and his wife homeless, had taken Cowart in when he broke and which is was hardly well-being. the conduct of someone unconcerned his “ fully agree We with the dissent that material can ‘where issues only by making credibility judgments, be eliminated the movant has ” Dissenting Op. (quoting not met his burden.’ at 639 v. Holmes 332) (2001)). App. Center, 184, 192 Achor But that applies says point rule where what one witness on a material — genuinely contradicted some other evidence what another says, prior witness, witness a or a statement document or piece physical e.g., App. See, Holmes, other evidence. (“Since accepting requires Officer Smith’s version events rejection presented by wife, of versions Holmes his we cannot say undisputed any the evidence is that Holmes made such admis officer.”). sion to the The rule does not mean that a witness’s simply uncontradicted can be in order to disbelieved provides. Summary judgment eliminate the evidence cannot be conjecture; speсulation pleadings avoided are based on once the pierced plaintiff evidence, with actual must to admissible showing genuine Huckabee, evidence issue of fact. See Butler v. 576) (1993) (affirming summary 761, Ga. 762-763 judgment only in a case where “the admissible evidence of [Huckabee’s] speed truck Huckabee’s statement” the was that he driving speed plaintiffs testimony limit, below the where the “ going awfully that the defendant ‘must have been fast for me not ” conjecture). coming’ him Indeed, to see was inadmissible approach summary judgment law, were the would be dissent’s virtually rendered non-existent cases where the evidence comes from witnesses. interpreting virtually summary courts,
The federal identical clearly expressed Supreme rule, Thus, have this view. explained “[t]he that, Court of United States has while evidence justifiable believed, of the nonmovant is to be and all inferences are Liberty Lobby, favor,” Inc., to be drawn in his Anderson v. 477 U. S. 202) (1986), SC 91 LE2d that does not mean that plaintiff may properly supported defeat a defendant’s offering motion for . . . without juror concrete evidence from which a reasonable by merely asserting return a verdict in his favor and the jury might, legally could, disbelieve the defendant’s [wrongdoing]. denial of showing The movant has the burden of genuine fact, there is no issue of but the thereby is not relieved of his own burden producing support in turn verdict. *11 (6th Ky.Dept. Transp.,
Id. at 256. See also Cox v. 53 F3d 1995) (“[A] nonmoving party may properly supported Cir. not avoid a summary judgment by simply arguing solely motion for that it relies part upon credibility subjective or in considerations or evidence. nonmoving party present Instead, the must affirmative evidence to properly supported summary judgment.”); defeat a motion for (S.D. 1966) (“All FSupp. Scanlon, Rinieri v. N.Y. these support proposition, applicable party oppos here, cases that the ing summary judgment point must be able to to some facts which may judgment, proof moving or will entitle him to or refute the of the party portion, opposing party may in some material and that merely ‘Credibility,’ incantation, recite the and have a trial on the hope jury may factually proof.”). that a disbelieve uncontested This applies likely rule even where the relevant evidence is to be within possession long the opportunity defendant, as the has had a full discovery,
to conduct
as occurred in this case. See
Anderson,
Thus, claims, to the dissent’s Widener’s simply disregarded cannot be because his version could be of events contradictory disbelieved, concrete, in the evidence. absence (d) testimony argument Even if the dissent’s that Widener’s disregarded viable, however, should be were aspect proper. Indeed, focus on this related would be the defendants specialized ques- question, involves medical of the causation necessary They argue link tions. that in order to establish the causal death, between inaction and Cowart’s Widener’s bleeding, only have to show not that Cowart died from internal he care after also that he would not have done so had received (and seriously assuming ill was Widener realized that he was Cowart correctly jury point). note, still alive at that As the defеndants prompt to determine that medical attention would have saved life, it make factual decisions on a number of would have to points it to that the evidence the record is insufficient allow make. This is true even Widener’s uncontradicted “reject everything included in the If the were to evidence. including claims, of time at which Widener ‘realized’ (em- Dissenting Op. assistance,” Cowart use medical at 640 phasis original), proof then the absence of causation becomes even apparent. view, more Under the dissent’s the record would be virtually symptoms, devoid of information about Cowart’s whether they by Widener, and when would have been observable how Widener responded, any response mattered, and whether would have between Augusta the time the truck left on the afternoon of November 30 stopped early the time it Ohio on December 2. specialized ques- Some of these determinations involve medical requires expert knowledge, tions whose resolution such as the source аllegedly bleeding, began of Cowart’s fatal internal when it and how rapid already was, and how much of it had occurred the first when symptoms appeared; external whether his condition was treatable at provided all, whether such treatment could have been (if by phone based on advice obtained or radio he had access those devices), by emergency responders, emergency room, whether that unanswered treatment could be rendered time. All of these
questions dispositive point: relate to the same whether quickly Cowart would have bled to death no matter how Widener had sought displayed him, medical care for once Cowart distress that person would have alerted a reasonable to the need to render aid. specialized questions might Some of these also need a non-expert facts, foundation in such as how close Widener was to *12 emergency many jury might question care. In cases a that resolve experience, based on their common sensе and but the is not easily happened case, answered in this because the incident on highway setting many interstate rather than in a with facilities.
636 rely experience
juryA could not on its common sense and — particularly disregarded questions answer these causation — plaintiffs answers, those the could Widener’s account without duty in not meet their burden to show that Widener’s breach of failing proximately caused to take Cowart for treatment his death. only arguably expert weighed Indeed, the issue the evidence on treating physician against causation, admitted that he as Cowart’s say if could not emergency Cowart would have survived had he been taken to an opinion
room. The dissent notes that
was based on
this
provided.
Dissenting Op.
the time line of events that
See
physician
true,
639. That is
but we believe that the
could consider
testimony.
importantly,
uncontradicted
Widener’s
More
there is no
opinion
physician
expert
in the record from
or
this
other
—
support
finding
regarding
of
no
causation
symptoms
gener-
the external
that Cowart’s condition would have
timing
ability
Widener,
demise,
ated to alert
the
of his
or the
anyone
anything
Widener or
else to do
it. As the trial
about
court
properly
speculation
enough.
Berry
concluded,
is not
See
v. Hamil-
428) (2000)
App.
(holding
ton,
conjecture”
summary judgment);
“mere
is insufficient to defeat
765) (2000)
App.
Whitlow,
Shadburn v.
(“
upon
‘[A]n inference cannot be based
evidence which is too
speculative
merely
conjecture
uncertain or
or which raises
” (citation omitted)).
possibility.’
(e) Finally,
plaintiffs
rely
case,
the
seek to
In that
the
Self.
Georgia Baptist Hospital
husband was admitted to
for
days
treatment of acute leukemia.
later,
See
hospital summary judgment. support filed a motion for id. In See hospital produced deposition motion, its from the hospital autopsy, opined doctor hired to conduct the who patient hemorrhaging died from intracerebral characteristic of patients leukemia, acute and that the fall could not have hospital addition, accelerated his death. See id. at 298-299. In patient’s produced prepared certificate, death a different right doctor, which listed the cause of death as “massive sided *13 hemorrhage with cerebral edema and herniation of intracerebral due to acute leukemia. See id. at 299. cerebellar tonsils” produce any contrary expert evidence, and did not The been about whether that would have even there was some hospital’s employee autopsied patient’s pоssible the had the once body 300-301 and brain and the had been buried. See id. at head (Banke, granted summary concurring specially). J., The trial court judgment hospital, Appeals affirmed. in favor of the and the Court of at 549. Self, This Court reversed on certiorari. See “[tjhere previously, in that is no As discussed we said Self testimony produced by plaintiff requirement to that must be prevail weight given in order to at trial. The a expert action fact, in such cases is for the trier of who is not required give controlling it Id. at 549. That remains influence.” general simple negligence although cases, rule for the statement overly very isolation, broad in as discussed above. But Self different from this case. alleged hospital’s negligence it Self, was caused
patient’s lay jury A death; it was not a failure to render care case. may reasonably sharp infer a causal link between a to the head blow patient appeared improving of a whose condition to be and his death expert may from in his head a few later. A defense hours сreate a material issue as to whether the blow was the actual cause jury disputed death, event, fact; but in that resolves the does require summary judgment Nothing for the defendant. like that pure speculation jury here, occurred and it would be for a to conclude on the failing evidence this record that Widener’s acts and omissions in proximate care
to seek were a cause-in-fact or a cause of triggered death, Widener, from a cause not known to at an occurring uncertain time and at rate, an unknown and not observed by Widener until it was too late to make a difference.
(f) By holding summary judgment properly granted by properly Appeals, the trial court and neither affirmed the Court of we are “display [ing] jury system,” Dissenting Op. disdain for our expressing any Georgia juries 638, nor distrust “in our whatsoever credibility make . . . determinations.” Id. at 640. We are instead displaying respect Georgia, including summary our for the law of judgment Assembly, enacted directs statute General jury upon that a need not be called to dеcide a case where record “show[sj genuine that there is no issue as to material fact and moving party that the is entitled to a as a matter law.” (c). § OCGA 9-11-56 Thompson, Judgment except concur, J., All the Justices affirmed. judgment, Hunstein, who concurs in Divisions and and in the Corley, part J., J., Benham, J., who concur in and dissent in C. P. part. concurring dissenting part Justice, Chief HUNSTEIN,
part. grant respectfully majority’s I dissent to the affirmance of the summary judgment appellees. majority apply in favor of fails to proper cases and the improperly standard of review to appellees, respon- the evidence in favor of construes I de dents. would reverse because a novo review proper genuine applying the standards establishes issues material fact remain for a to decide. prevail summary judgment,
1.
on a
To
motion
burden is
*14
moving party
any genuine
on the
to demonstrate the absence of
issue
of material fact and that the movant is entitled to
as a
(1) (690
Kaplan City Sandy Springs,
law.
matter
v.
By taking value, the Widener’s statements at face credibility judgment exclusively that is for the makes finder of fact. reserved
“[T]he movant for carries the fact, burden to eliminate material issues and where material only by making credibility judgments, can be eliminated issues movant has not met his burden.” (Punctuation and footnote omit- ted.) (2) (b) (547 Center, 184,192 Holmes v.Achor single-minded Based on Widener’s admitted behavior *15 seeking сargo, recognize I to deliver his would instead that a jury lacking credibility in reasonable could find as Widener’s claims symptoms about the absence of external shown Cowart. Contrary majority’s argument, credibility problems to the deposition testimony only undermine not Widener’s own majority’s finding finding about causation but also its that Widener’s preventing failure to render aid made no difference in majority points treating physician’s death. The to Cowart’s state- say ment that “he could not if Cowart would have survived if he had Maj. emergency Op., p. been taken to an room.” 636. But that predicated exclusively upon statement the time line of events provided, [Cowart] i.e., Widener seriously Widener was realized “after (Emphasis supplied.) Maj. Op., p. only ill.” 635. The source knowing seriously we have for when “realized” Widener Cowart there would In his be no deposition objection to Cowart’s asserted that Cowart’s status as an ex-UTI presence. employee meant credibility issue, is in ill is Widener Because Widener’s himself. testify may reasonably reject everything hearing seeing him after and including claims, he of time at Widener “realized” Indeed, could use medical assistance. Cowart treating physician’s opinion appropri- based on would have been only opined in had ate here one circumstance: that Cowart would gone directly emergency had he to an rather have still died even room treating place. than enter truck in the But the Widener’s first express physician opinion predicated did and such instead his opinion self-serving on the same statements Widener on which majority Summary judgment relies. is thus no more warranted physician’s opinion based on the than on Widener’s statements. own jurors testify I leave to seen and who have heard Widener before them to decide whether to believe Widener’s account of the leading majority, to Cowart’s I events Georgia juries death. Unlike the trust our types credibility
to make these determinations. Summary judgment simply appropriate as a matter of law is this case. quibble majority rejection
I2. will not with the over its of the phrase question” “everyday meaning” “medical due to its and parlance,” Maj. Op., p. despite “common that, the fact attorneys jurists, routinely employ “everyday” and we words as Although majority’s re-labeling I terms of art. doubt that the of this phrase meaningfully agree majority’s law, advances the I with the expert testimony may required ultimate when, conclusion that be particular case, under the facts of the a determination whether the proximately plaintiff’s injury defendant’s conduct caused the a beyond average juror. matter the ken of the (3) respectfully I reasons, For these dissent to Division (2) (a) majority’s opinion, concur in Division concur (2) (b). only in Division Presiding Carley
I am authorized to state that Justice join part part. Justice Benham in this concurrence in dissent July 12,
Decided July 2010. Reconsideration denied Murray, Warlick, Tritt, III, Stebbins & Charles C. Stebbins appellants. Henry
Sommers, Bass, Scrudder, Jr., Fortson, & Scrudder E. *16 Bentley Hagler, Allen, Jr., A. & J. Edward Fulcher John Griffin, Amy Mayers, appellees. Snell, Davison, R. Charles C. for GEORGIA, S09G1219. HNTB INC. v. HAMILTON-KING et al. COMPANY, S09G1224. PLANT IMPROVEMENT INC. v. et al. HAMILTON-KING 770) Justice. Thompson, granted Appeals We certiorari to the Court of in these cases to Appеals by reversing determine whether Court of erred the trial grant appellants court’s in favor of HNTB (HNTB) Georgia, Improvement Company, Inc. and Plant Inc. d/b/a (Seaboard). Company Hamilton-King Seaboard Construction See v. Georgia, HNTB For the follow, reasons that we reverse.
Appellees Hamilton-King Lakeisha and her brother Justin injured they bridge Hamilton were when were struck a van in a Georgia. construction zone on Interstate 95 in south Their brother Johnny was killed in the same accident. All had three exited their they separate vehicle after were involved collision and their car bridge. police stopped help became disabled on the A officer who displayed emergency signals attempted his to slow traffic traveling bridge appellees standing. onto the where were van, allegedly traveling speed per at a close to 70 miles hour on the the highway, approached darkened interstate accident site and struck did not slow down as it
appellees. Justin and Lakeisha, in both her cаpacity Johnny’s individual and as the administrator of estate, sued designer bridge-widening project, HNTB, the Seaboard, general negligence, specifically alleging, contractor, for inter alia, that HNTB and Seaboard failed to include shoulders their traffic plans implement proper lighting bridge control and failed to in the construction zone.
Prior to trial, HNTB and Seaboard filed motions to exclude expert testimony challenging qualifications appellees’ expert engineer. They witness, Thomas, Jerome a licensed asserted both experience testify that Thomas lacked the education and about design proffered testimony construction standards and that his reliability § requirements failed to meet the of OCGA 24-9-67.1. The granted trial court their motions to exclude the absence of expert testimony establishing admissible the standard of care and granted subsequent breach thereof, the trial court also their motions summary judgment. Appeals concluding reversed, The Court of by excluding the trial court abused its discretion Thomas’