Georgia law provides that a tort plaintiff “shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.” OCGA § 51-12-33 (g). In this wrongful death action, the trial court granted summary judgment in favor of the defendants on the ground that the undisputed facts show the plaintiffs’ decedent was at least 50 percent responsible for his own death. The plaintiffs contend the trial court erred by not allowing the jury to consider this issue. We agree and therefore 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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County,
The parties rely in large part on the same documents that were produced by officials involved in the response to and investigation of the accident. Construed in favor of the plaintiffs, these records show that at approximately 2:00 a.m. on August 26, 2008, Rimantas Labeika parked a tractor-trailer
Reed entered the right-hand curve to transition onto Interstate 285 westbound at a rate of speed too fast for the curve and rainy conditions. Reed lost control of the vehicle and turned his wheel to the right, and the vehicle rotated in a clockwise direction and traveled onto the northern shoulder of the interstate, striking the “guardrail that borders the northern edge of the shoulder.” The vehicle “continued in a westerly direction and disengaged from the guardrail driver side down. The [vehicle] collided undercarriage first with the rear of [Labeika’s parked tractor-trailer].” “The impact... caused a rupture of the gas tank and a fire ensued.” The fire “consumed the Explorer”; Reed and Shelter were pronounced dead at the scene. A postmortem examination concluded that the cause of death for Reed was “Sequelae of Blunt Force Trauma and Thermal Injuries.”
Thomas M. Reed, Sr., as a surviving parent and as the administrator of his son’s estate, and Aundrea C. Reed, as a surviving
1. The appellants first contend that the trial court did not have the authority to grant summary judgment because OCGA § 51-12-33 provides that, under the present circumstances, damages shall be apportioned by the “trier of fact.” That Code section provides:
Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
OCGA § 51-12-33 (a). But we find nothing in the statute that abrogates a trial court’s authority under OCGA § 9-11-56 to grant summary judgment in an appropriate case, i.e., in a plain and indisputable case. See generally Garrett v. NationsBank, N.A. (South),
2. The appellants also contend that the trial court erred by concluding as a matter of law or undisputed fact that Reed was 50 percent or more responsible for his own death.
As to the truck driver Labeika, the generally applicable law requires that “[t]o recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury.” Atlanta Obstetrics and Gynecology Group v. Coleman,
that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.
(Citation and punctuation omitted.) Zwiren v. Thompson,
In the present case, there is an issue of fact as to whether Labeika’s act of parking in the emergency lane was a cause in fact of Reed’s death. Construed in favor of the appellants, the record shows that the fire was caused when the undercarriage of Reed’s vehicle struck the trailer and that Reed died from some combination of blunt force trauma and the fire.
With regard to proximate cause, the record shows that both Reed and Labeika violated traffic laws. Reed was driving with a blood-alcohol level above the legal limit, OCGA § 40-6-391 (a) (5);
Prior to the addition of OCGA § 51-12-33 (g),
This Court explained that with regard to the foreseeability of injury resulting from illegally parking in the emergency lane,
it is not necessary that [the defendant] should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.
(Citation and punctuation omitted.) Storer at 231-232. Cf. Smith v. Commercial Transp.,
Although the facts of the present case show more fault on Reed’s part than the decedent in Storer, we conclude that there are issues of fact relative to the degree to which Reed’s and Labeika’s negligence caused Reed’s death, including whether Reed was 50 percent or more at fault. It is reasonably foreseeable that another motorist might negligently lose control of his vehicle at night in wet conditions and strike a tractor-trailer parked in the emergency lane on an interstate highway and that striking a tractor-trailer possibly might cause a fire thereby exacerbating the injuries resulting from such an event. As explained in Storer, it is not necessary that Labeika should have anticipated the particular manner in which Reed lost control of his vehicle, collided with the guardrail, and struck the tractor-trailer with the undercarriage of the Ford Explorer causing a fire and, possibly, Reed’s death. And as in Storer, “these questions do not have ‘plain and indisputable’ answers under the evidence of record and must be resolved by a jury.” Id. See generally Dickerson v. Guest Svcs. Co. of Virginia,
Judgment reversed.
On Motion for Reconsideration.
The appellees contend we failed to analyze two issues. First, the appellees contend that we failed to properly analyze the issue of “comparative negligence,” i.e., whether it was plain and palpable that Reed was at least 50% or more responsible for his own injuries thereby barring his recovery under OCGA § 51-12-33. Given that the original opinion
Second, the appellees contend that we failed to analyze whether Reed failed to exercise ordinary care for his own safety and failed to avoid Labeika’s negligence by exercising ordinary care. The appellees argue that Reed failed to do so as a matter of law and that we should therefore affirm the trial court under the “right for any reason” rule. See Georgia-Pacific, LLC v. Fields,
Under the doctrine of avoidable consequences, “[i]f the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, [the plaintiff] is not entitled to recover. . . .” OCGA § 51-11-7. The defendant has the burden of proving that the plaintiff by ordinary care could have avoided the consequences caused by the defendant’s negligence. Garrett v. Nations-Bank, N.A. (South),
With regard to the argument that the appellants cannot recover because Reed failed to exercise due care for his own safety by drinking and driving too fast for conditions, which caused him to lose control of his vehicle, Georgia law holds that “[e]ven if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for her own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.” (Citations omitted.) City of Winder v. Girone,
Motion for reconsideration denied.
Notes
DSG Business Corporation owns the tractor; LMV Trucking, Inc., owns the trailer; and Carolina Casualty Insurance Company insures LMV.
“Sequelae” has been defined as a “condition following as a consequence of a disease,” Stedman’s Medical Dictionary, 27th ed., p. 1622 (2000), or as “an aftereffect of disease, condition, or injur/’ or "a secondary result.” Merriam-Webster.com.
The appellees complain that the appellants failed to present expert testimony to show that Reed did not die as a result of his collision with the guardrail. But the plaintiff introduced a report from the Cobb County Police Department to show that the fire was caused when the underside of Reed’s vehicle struck the trailer, as well as a report of the Cobb County Medical Examiner opining that the cause of death resulted, in part, from thermal injuries, i.e., the fire. And the appellees did not object to this evidence in the trial court.
OCGA § 40-6-391 (a) (5) provides as follows:
A person shall not drive or be in actual physical control of any moving vehicle while: . . . The person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended[.]
OCGA § 40-6-180 provides as follows:
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.
OCGA § 40-6-48 (1) provides as follows:
A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety[.]
SeeGa. L. 2005, p. 1, § 12. The addition of OCGA § 51-12-33 (g) did not represent a change in the law regarding contributory negligence. As explained above, the legislature wrote the existing common-law rule regarding a plaintiff’s contributory negligence into OCGA § 51-12-33 (g). Couch,