*1 806 guilt except Here,
hypothesis the evidence of the accused. that of particular, evidence, direct direct of... consisted omitted.) [shoplifting].” (Citation eyewitness Patterson v. to the 3 record have found no Moreover, examined the we have State testimony. contradictory in Patterson’s statements Judgment Bernes, JJ., concur. Miller and affirmed. 25, 2005. February
Decided apрellant. Kristy Locke, White, E. F. Nicholas Creque, Solicitor-General, Tawse,Jr., Arthur J. Assistant AlanR. appellee. Solicitor-General, for DEPARTMENT OF TRANSPORTATION LAYFIELD v.
A04A1786.
et al. 56) Judge. Presiding BLACKBURN, grant guardian Layfield appeals Michael Carol Department Transportation (DOT) complaint Dykes Grassing Company (Dykes) her and Everett alleging resurfacing of a in the construction and road of his and crashеd where Michael lost control rainstorm the events into a tree. Because Michael could not remember associ- expert’s testimony and because his as to ated with speculation, sup- causation was based on no ported allegation caused the proximate cause, Absent evidence of we must affirm. accident. “Summary proper judgment genuine is there issue of when judgment fact and the movant is entitled to as a matter of material Matjoulis Corp. (c).” Integon Ins. § law. OCGA 9-11-56 Gen. We construing summary judgment novo, de review evidence in favor of the nonmovant. Id. way construed, that on home
So the evidence shows driving through heavy August 2001, in according rainstorm work him that, to his boss who was a few minutes behind very road, milе road, made it difficult to see. After a or so on left side of found an Michael in his vehicle offthe boss unconscious driving and crashed into a tree. Michael has no recollection State, 569) (2004). Patterson (1) (486 Integon Corp., Matjoulis Ins. Gen. occurred, and observed the or of the crash no witnesses how investigating the accident determined accident. officer Michael’s tires low. tread three of days attorney investigating An the accident testified a few wreck wreck, he observed the near the after inch half of rainstorm and determined that an running along and a water was top draining some off *2 the ofthe road for distance pictures. also that weeks to the side. He took prior Evidence showed two hеavy accident, had to the another driver a rainstorm stretch road and had ended lost control ofhis trailer near the same up crashing of emergency the same set of The driver and the into trees. to this prior responding medical technician accident both testified prior retaining the that road near the wreck was water that was puddling up running parallel with the road and then off to the side.
Alleging that the DOT failed to construct the road with slope Dykes’s sufficient microsurfacing drain that to water and recent uneven road
of this had exacerbated the road’s of retention guardian water, Carol as for Michael the sued DOT and negligence. Layfield presented expert the of an opined originally the DOT had who that constructed the to proper sloping specifications Dykes’s recent micro- surfacing irregularities of the in June 2001 contained problem. expert exacerbated the water accumulation The further opined by that Michael’s loss of of control his vehicle was caused encountering the accumulated road. expert’s deposition only revealed, however, the bases for that the accumulated water caused Michael’s accident (1) presence the
were of accumulated water on the road at the time (2) prior occurring during accident, the the accident a rainstorm up losing on the same stretch road that ended with that vehicle hitting duе control to accumulated water and the set of trees. Although capable doing expert so, did the not do reconstruction (a) Thus, of Michael’s accident. he made no effort to determine the depth (b) long accident, the water the time at ofthe it how had been raining, (c) raining, (d) how hard was whether the water was moving, (e) speed (even though Michael’s time he the lost control expert inspected damage could have to the vehicle to calculate (f) this), speed along (g) whether Michael’s uniform, this road was engaging (h) what activities Michael was at the he control, time lost (i) whether Michael rain, had driven this road before in the along (j) a 300-foot stretch of road Michael lost vehicle, control (k) woods, whether an darted animal from the whether the played (1) low tread on role, three of Michael’s tires or whether the hydroplane, accumulated water caused to have impact dynamic drag, simply friction, to have differential may possibilities that Michael have Indeed, he conceded water. such deer darted into because an animal as a ofhis vehicle lost control radio or other was distracted road, because Michael three so worn vehicle, because Michael’s tires were in the activities they may water, Michael fell mounted the because have down that driving asleep, too fast. Michael was or because failed to make such determinations also (on repeatedly prior regard relied in con- to the accident cluding must have caused Michael’s accumulated water determining also) similarities, as such determine accident prior rain, water, the amount of the the accident the speed causing vehicle, the role of trailer deeper vehicle, and whether accumu- effect of tire treads hydroplaning Indeed, friction. lated water resulted in differential prior spoke to never even the driver involved identify between the two and could two similarities accident raining side of it was and both vehicles went offthe left accidents: into same set trees. speculative conclusions, Because of thе basis of granted to DOT and trial *3 ground a link that no evidence showed causal between losing presence control of his vehicle and of accu- roadway. agree and mulated water on the We affirm. any negligence an essential element in action.”
“Causation is (Footnote Hobday plaintiff omitted.) Galardi.2 has burden challenged summary judgment, proof element, on of on this and when specific plaintiff giving must to a to rise reasonable likely that it is more than not that the conduct of the conclusion Head was cause in fact the result. v. Sears Roebuck & defendant possibility enough; such when “Amere causation is and Co.3 speculation conjecture, prob pure or or the matter remains one of evenly duty balanced, are at it becomes the abilities best grant summary judgment (Punctuation to for the defendant.” omit ted.) Id. expert hangs
Here, the threads on his con- tenuous which on the road caused Michael’s clusion accumulated water present the road and accident are accumulated water was on road two that another accident occurred this same stretch of weeks that resulted in a collision the same set oftrees. Since the earlier expert quantify
made no effort to the amount water on Galardi, Hobday & Head Sears Roebuck compare nothing accidents, to of the two this circumstances impermissible ipsa loquitur” approach: more an a short- than “res analysis requiring quantum leaps logic circuited fаith and and smacking speculation together. rank link the to two accidents approach ignored undisputed
Indeed, stark, differ- prior First, accident, ences in the between two accidents. pulling fully-loaded pound 1,500 vehicle was trailer that swerved pulling (which causing sliding), hit around and was not go“haywire” pulling and into the ditch. Michael was good prior Second, trailer. the vehicle accident had tread on its tires, whereas Michael’s vehicle had low tread on three of its prior Indeed, tires. parents the week told had his prior Third, he needed tires. new trailer accident began swerving highway area the water was accumulating. expert ignored undisputed attempt these differences with no explain away; investigate any them he failed to details ofMichael’s prior compare accident or accident as accidents; so the two only explanation why possible admittedly and his as to the other (going fast, causes for Michael’s could distracted, low, accident too too tread etc.) probable see, out, animal darted were lеss — — prior investigated accident the details of which had not specious reasoning occurred there two weeks earlier. Such severed expert’s opinion hung the tenuous threads left and speculation opinion proximate with rank as the basis for his cause. long rejected expert testimony competent.
We have such Fryhofer4 Bankers Health &c. Ins. Co. v. held: expert may give оpinion While it is true that an without stating upon yet based, which it is when the basis opinion given appears wholly of is and it is speculative conjectural, it must follow that his is probative Speculation without foundation has no value. conjecture by speculation conjec- still support *4 ture, and will not a verdict.
(Emphasis supplied.) only Thus, where the evidence the cause expеrt testimony conjecture speculation, accident is based summary judgment in favor of the defendant is mandated. Denson Heating Oglesby. Co. &c. Fryhofer, (1) (150 365) (1966). Bankers Health &c. Ins. Co. Heating Oglesby, App. 147, 685) &c. Denson Co. v. 148-149 closely approximates present and circum case
The of Transp.,6 Dept. in which we affirmed set forth in Johnson v. stances plaintiffs alleged summary judgment The in DOT. favor hydroplane, roadway caused thеir car to ruts and water on plaintiff resulting Id. But neither could recall collision. one-car concerning anything about the incident. Id. at 840. in that other accidents occurred causation was hydroplaning. general location, involved at least one which explain mandated, held Id. We ing: necessary had the stated facts or None these witnesses requirеd expertise in to determine the manner occurred, cause, or that cause was its whether incident duty part ofthe As to a breach of DOT. attributable trial court observed: may showing in that there ruts there be evidence were
While showing State there is no evidence route hydroplaned, hydroplaned in that it at fact vehicle place were, that, these ruts at where control, time the ing went out of there was water stand- vehicle simply Consequently, there is on the road these ruts. jury upon which a could draw an inference no evidence hydroplaning the vehicle went out of control a result standing point due to water at a some distance from where the vehicle came to rest. only testimony regarding incident itself is water, some time after
several witnesses observed ruts and roadway. As the incident, near where the vehicle left observed, trial court “whether there were ruts also at left the road is not the site where inquiry there ruts material. The material whether were the vehicle first out of at went precise control.” But no witness has ever established position any this incident or the location for element of by photographs, diagrams, time, whether maps, measurements, distance from mile markers. Id. of Transp., Dept.
6 Johnson
811 attempts gaps by fill in in similar his evidence submitting expert fail, of an must since that gathering any necessary failed to bother of the essential information support roadway conclusion water сaused Drawdy Dept. Transp.7 Michael’s vehicle to lose control. See (summary judgment affirmed where witness’s roadway plaintiffs hydroplane in caused was based speculation). proximate cause, Absent evidence of we judgment summary must affirm the trial court’s to the DOT Dykes and here. Judgment J., Andrews, J., Ruffin, C. P. Mikell and affirmed.
Bernes, JJ., Adams, JJ., concur. Barnes and dissent. Judge, dissenting.
BARNES, agreе negli- I Because cannot that no evidence shows that gence Layfield’s Dykes injuries of DOT and caused and summary because the trial court and this can decide this case on judgment only by assuming juries State, role reserved for in this respectfully I must dissent. appeal proposition
Our consideration of this must start negligence generally suscep- that the routinе issues of cases are summary adjudication, e.g., Kroger see, tible of Co., Robinson v. 268 (2) (b) (493 403) (1997), 735, 748 SE2d Ga. and granted should not be cases unless the nonexistence of liability plain, palpable, indisputable. Ellington v. Tolar Con- (227 235, str. 237 Ga. SE2d This is such a case. forget ruling
Further, we must not that when on a motion for summary judgment, Layfield is entitled to the benefit allof reason- doubt, able and courts must construe the evidence and all inferences Layfield’s and conclusions therefrom in favor. Moore v. Goldome Corp., App. (370 843) (1988). Any Credit 594, 595-596 SE2d genuine doubts about the existence of a issue of material fact must be against summary resolved as the movants for judgment. Kelly Vargo, (405 (1) 36) (1991). 422, 261 Ga. importantly, Most courts cannot resolve the facts or reconcile the deciding summary judgment. issues when a case on motion for Amax, Inc., Fletcher v. though improp-
Here the evidence shows that even the road was erly superelevation drainage, constructed without sufficient reported accidents caused accumulation of water were on this stretch ofthe road from the time it was constructed 1949 until DOT Dept. Drawdy Transp., 521) (1997) (physical precedent only). repairs Then, road in 2001. within started
and span heavy weeks, rainstorms incidents occurred two two roadway leaving curve, the same low in cars resulted proceeding hitting path, the first the same tree. After on the same holding wreck, and an EMT stated the driver attorney period During wrecks, between the visited water. heavy noted that anothеr rain and of the collisions site draining rain accumu- and that the rain was not from road *6 lating half to a of one and a inches. on the road surface Layfield’s expert testimony coupled evidence,
This with the Layfield’s car to the of the road caused that hydroplane defective condition jury road, to create a issue and leave the is suffiсient Layfield’s injuries. Although the caused whether DOT and majority why the not raises several reasons should jury. judging credibility role credited, the of a witness is a for the be persuasive disregard highly addition, evidence that In we cannot the the did so both leave at the same same whatever caused place vehicles to left road and so that both vehicles struck еxact tree.
Although Dykes argues that not held because it should be liable ultimately accepted work, the the work its record shows that accepted was not until after this area resurfaced. it reason- Therefore, at the time of the accident cannot be concluded acceptable ably particular that the DOT. this work was Layfield’s possible Also, whether the condition of tires played properly consid- inattention some role the accident is not Layfield’s if tires were defective he was ered causation. Even contributory negligence. inattentive, such raise the defense of issues Contributory negligence affirmative defense Layfield, proof, defendants, and, would have burden оf capable summary appeal, event, under the in this are not adjudication. Ellington supra, Tolar 238. Constr. Ga. at majority points Layfield’s expert perhaps
Although,
out,
job
many
thorough
could have done more
answered
questions
majority poses,
purpose
must ask
of all
one
what
analysis
Layfield
Ultimately, the burden on
will be to
this
would be.8
prove
prove
preponderance
evidence,
her case
beyond
question
Thus,
a reasonable doubt.9
before us is whether
determine,
agree
any expert could
or other
I cannot
accident reconstruction
might
wise,
might
animal darted from the woods or in what activities Michael
whether an
questions
engaged
raised
accident.
am I convinced that all
not have been
before the
Nor
Layfield’s
summary judgment.
must be
case could survive
answered
Layfield
“point
specific
giving
point
a triable
is to
rise to
At
burden on
Haskins,
(e).”
Corp.
until hit am I satisfied met her burden. This evidence establishes more than the mere possibility water on road caused the wreck.
Accordingly, respectfully I must dissent. Judge joins
I am authorized to state Adams in this dissent. Februаry Decided l,
Reconsideration denied March appellant. Vansant, McClure, Corriere & Corriere, N. Alfred Attorney Reagan Baker, General, Dean, E. Thurbert W. Assistant Attorney Finley Timothy Buckley, General, Buckley Kelly III, & J. R. appellees. Castellow, for
A04A1642. SOTO SUPERSTORES, v. CARMAXAUTO INC. Presiding Judge. SMITH, appeals grant summary judgment
Pedro Soto Superstores, seeking damages Inc., CarMax Auto in action filed purchase connection of a used Chevrolet Blazer. Soto sought recovery under theories, several but his claim of breach implied appeal. warranties is at issue We find that the trial correctly presented ruled that Soto no evidence that the vehicle sale, was defective at the time of and we affirm the trial court’s to CarMax. purchased May Soto used 1997 Blazеr from CarMax time, At 2001. the vehicle’s odometer showed that had been purchase, 57,000 driven more than miles. At the time of Soto also 30-day/l,000 warranty, appeared received a mile limited “Buyers specifically incorporated CarMax’s Guide” and was into the “Buyer’s purchase. Order,” which Soto also at the received time Immediately warranty informing buyer under the notice that the limited specifically incorporated, “Buyer’s
brochure was Order” capital paragraph recited in letters in which CarMax limited “ANY