612 S.E.2d 827 | Ga. Ct. App. | 2005
In this personal injury action arising out of an auto accident, defendant Bobby Gene McKissick appeals (with our permission) from the order denying him summary judgment. He argues that no evidence showed he breached any duty owed to plaintiff Donna Elaine Giroux, who was injured in the accident, or to her husband, who is suing for loss of consortium. We agree and reverse.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
So viewed, the evidence shows that Giroux was driving her motorcycle northbound on a highway as it approached a curve bearing right while McKissick was driving his truck pulling a trailer southbound on the same highway approaching the same curve. As the vehicles passed by each other, Giroux struck the trailer, resulting in severe injury to Giroux. Alleging that McKissick failed to maintain his lane and to exercise ordinary care to avoid the collision, Giroux and her husband sued McKissick for damages.
McKissick moved for summary judgment, submitting evidence from himself and from another driver (who was behind Giroux and witnessed the accident) that Giroux wobbled on her motorcycle as she went into the curve and that Giroux, not McKissick, crossed the
“In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury.” Vaughan v. Glymph.
McKissick contends that no evidence showed he breached a duty owed to Giroux. “The mere fact that an accident happened and a plaintiff was injured affords no basis for recovery unless the plaintiff carries her burden of proof and shows that the accident was caused by specific acts of negligence of the defendant.” Berry v. Hamilton.
Regarding crossing the centerline, McKissick submitted direct evidence that Giroux, not McKissick, crossed the centerline. Giroux failed to counter that evidence with anything other than her speculation that since other southbound drivers had crossed the centerline at this curve, and since McKissick was driving a larger vehicle with a trailer, McKissick must have done so also. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” (Punctuation omitted.) Heath v. Rush.
Regarding the exercise of ordinary care to avoid the collision, Giroux cites OCGA § 40-6-93 for the proposition that McKissick owed a duty to Giroux to avoid the collision once he ascertained that she was not in control of her motorcycle. This statute, however, does not purport to apply to duties owed to other drivers, but focuses on duties owed to persons on the highway. See Fountain v. Thompson.
Accordingly, we reverse the denial of summary judgment and direct the trial court to enter final judgment in favor of McKissick on all claims.
Judgment reversed.
OCGA § 9-11-56 (c).
Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
Vaughan v. Glymph, 241 Ga. App. 346, 348 (526 SE2d 357) (1999).
Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
Berry v. Hamilton, 246 Ga. App. 608, 609 (541 SE2d 428) (2000).
Heath v. Rush, 259 Ga. App. 887, 888 (578 SE2d 564) (2003).
McElroy v. Cody, 210 Ga. App. 201, 202 (435 SE2d 618) (1993).
Fountain v. Thompson, 252 Ga. 256, 257 (312 SE2d 788) (1984).
Hughes v. Brown, 111 Ga. App. 676, 682 (8) (143 SE2d 30) (1965).
Cromer v. Hodges, 216 Ga. App. 548, 549 (1) (455 SE2d 94) (1995).
Reed v. Dixon, 153 Ga. App. 604 (1) (266 SE2d 286) (1980).
Johnson v. Ellis, 179 Ga. App. 343, 344-345 (346 SE2d 119) (1986).