162 Ga. App. 477 | Ga. Ct. App. | 1982
Summary Judgment. Wynelle Davis was injured in an automobile accident and suffered a broken hip. She was transferred to DeKalb General Hospital for remedial surgery. Ms. Davis was treated and a pin and plate was placed in the joint of her hip. X-rays taken after the operation indicated that the pin was properly placed and the surgical procedure gave every indication of being wholly successful. The treating surgeon testified by deposition that he anticipated an uneventful recovery and that the hip would heal followed by unrestricted use of the leg and hip. After several days of postoperative recovery, Ms. Davis was started on physical therapy. On about the tenth day following surgery, Ms. Davis was taken by a volunteer aide from her hospital bed to therapy. After the therapy treatment, Ms. Davis was returned to her room. During the transfer from a wheelchair to her bed, Ms. Davis, for one reason or another, did not receive the continuous support of the aide and fell either into or against her bed. As a result, the implanted pin apparently was agitated. Over the next few days, the pin migrated from its implanted position to a new, unstable angle and the pin punctured through the head of the femoral bone. The doctor testified that though it is possible for a pin to migrate in the absence of an external trauma, it was his opinion that the fall was what caused the pin to migrate. The doctor also testified that there was no new break because the hip had not had sufficient time to commence any significant healing before the fall. A second operation was necessitated. At this operation, the pin was reseated at a new angle and soft bone was transplanted to fill a gap caused by the repositioning of the pin. Primarily because the exposure of the hip bone to the trauma of the second operation (i.e., manipulation of the bone, new bleeding and external air), the fracture of the hip bone never properly healed, resulting in pain and loss of mobility and a greater degree of permanent disability.
Sometime after the second operation, the insurer of the owner of the car causing the auto accident (Cotton States Insurance Company) offered to settle their insured’s liability for the full amount of the policy coverage. Upon the advice of the insurance adjuster for DeKalb General, Ms. Davis accepted the settlement from Cotton States in an amount of $25,000. The adjuster for DeKalb General assured Ms. Davis that her acceptance of a settlement from Cotton States would have no effect upon any claim that Ms. Davis might have against DeKalb General. DeKalb General paid all Ms. Davis’ medical and doctor bills and made an offer to Ms. Davis to
When Ms. Davis settled with Cotton States, she signed a release that in pertinent part provided that Ms. Davis released the driver-owner of the other car (Cotton State’s insured) “. . . and all other persons, firms and corporations, of any... and all claims ... of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries ... and the consequences thereof... to result, from the...” original accident. Based upon this very broad release, DeKalb General moved for summary judgment. The trial court granted summary judgment to DeKalb General. It was from this grant that Ms. Davis brings her appeal. Held:
A proper decision in this case hinges upon the answer to the question of what was the proximate cause of Ms. Davis’ continued pain, loss of mobility and degree of permanent disability; more explicitly, whether it was the negligence of the original wrongdoer who caused the fracture of the hip in the first place or was it the intervening negligence (assuming such) of DeKalb General that caused the disabling injuries. Generally, in such a case the question of what was proximate cause of an injury is a question for a jury to determine from all the facts and circumstances of the case, upon proper instructions from the court. Ellington v. Tolar Const. Co., 237 Ga. 235, 237 (227 SE2d 336); Spires v. Goldberg, 26 Ga. App. 530 (4) (106 SE 585); Sparta Oil Mill v. Russell, 6 Ga. App. 293 (4) (65 SE 37). A prior cause cannot be made the basis of an action because it furnished the condition and gave rise to the occasion by which the injury was made possible, where there intervened an unrelated and efficient cause of the injury, even though such injury would not have happened but for such prior condition. On the other hand, if the occurrence of the intervening cause might reasonably have been anticipated, it will not interrupt the connection between the original cause and the ultimate injury. Mayor &c. of Unadilla v. Felder, 145 Ga. 440, 444 (89 SE 423); Ga. R. &c. Co. v. Konkle, 36 Ga. App. 569 (137 SE 113). But where the intervening cause was of such a nature that it could not have been foreseen reasonably to be the result of the prior negligence, it becomes the proximate cause, even though the ultimate injury would not have occurred except for such original negligence. Beckham v. Seaboard Air-Line R., 127 Ga. 550, 551 (56 SE 638); Artope v. Central of Ga. R. Co., 38 Ga. App. 91 (143 SE 127).
Under the facts of this case, we conclude the evidence gives rise to two separate acts resulting in two separate injuries. The first and precipitating injury was the apto accident in which Ms. Davis
The cardinal rule of the summary procedure is that a court can neither resolve the facts nor reconcile the issues, but only look to
Judgment reversed.