*1 COMMUNICATIONS, A89A1850. INC. al. STORER et v. BURNS al.
et 92) Carley, Chief Judge.
Appellee-plaintiff’s after wife died she lost control of her vehicle parked emergency then struck another vehicle that was in the highway. appellee’s lane an interstate The vehicle with which de- by appellant-defendant ceased collided was owned Storer Communi- parked emergency by cations, Inc., and had lane its em- against ployee, appellant-defendant appellants, seeking Appellee brought Winzurk. suit Appellants
to recover for the death of his wife. subsequently summary judgment. answered and court moved for The trial appellants’ motion denied but certified its order for immediate granted appellants’ application review. This Court an interlocu- appeal tory summary judgment. from the denial of their motion for favorably appellee, Construed most the evidence shows the following: rainy morning, appellant On an overcast Winzurk was dispatched report on the occurrence a four-car collision on the highway. Arriving parked emergency scene, interstate at the in the emergency lane, blinkers, on turned his and exited his vehicle. Traffic congested and, had become as the the four-car collision appellee’s approached scene, deceased from she moved the center According to the left lane. the motorist was in the who vehicle be- her, car, hind like “her the back of it . . . . . end did like that and . immediately . [H]er a little fishtail. . . car off into veered guard guard left-hand median, rail. She went into that rail and the guard flying car came off of that rail and went back down and made a [appellants’ turn as it went back . down and . . hit into vehi- cle], off on kind of this left-hand back corner area and then that car went appellants urge evidence,
into a ravine.” On this
that their motion
summary judgment
granted
any negli-
for
gence
should have been
because
parking
emergency
the vehicle in lane has been elimi-
appellee’s
nated as a
cause
the collision and also because
recovery
contributory negligence
is barred
of his deceased.
“
negligence, diligence, contributory ‘Questions peculiarly
jury,
cause are
matters for the
and a court
jury
except
plain
solving
should
them,
not take of the
”
indisputable
Bottling
Jones,
cases.’ Atlanta Coca-Cola
SE2d
Co. v.
25) (1976). Accordingly,
the vehicle was the act of and the collision herself that for” the of her This would show “but losing control vehicle. deceased, would appellee’s parked with the of collision any However, of not have occurred. “but for” the act of driver vehicle, would stationary such a collision vehicle that strikes another if had inquiry [appellee’s not not occur. is whether deceased] “[T]he complained of would injury not acted the manner that she did the so, if occurred, negligent and not have but is whether her acts were cause, they they or whether contributing whether were or were not . . . If in the transaction were were the sole cause. her acts ordinary prudent person if negligent, just not i.e. she acted as an circumstances, her conduct be would have acted under similar affairs. It only part considered as a the normal course of human it how and happened, not as does matters so much where the accident why (Emphasis at the it did occur.” place accident occurred Powell, App. 360, Carter v. original.) It that collision occurred at the cannot be denied parked only negligently that it did because another vehicle was assuming may lane. Even have been foreseeable that it that, negligently existing under the circumstances a collision cannot be hydroplaning, as the result it would occur that, law, as that a collision said a matter it was not foreseeable negli- party would “In be liable as somehow occur. order for a anticipate gence, it is he been able to necessary that should have sufficient, if in ordi- particular consequences which ensued. It is injury would nary prudence might have that some foreseen injurious omission, generally consequences from his act or or that Grier, 337-338 might Williams nature result. [Cits.]” 698) (1943). Appellants’ that, anomalous assertion as a protect law, matter ing stationary of a from strik- violation statute to drivers be to be a vehicles cannot found any injuries may that have resulted from another driver’s collision negligently parked with a vehicle is without merit.
Appellants’ summary further their motion for assertion that judgment granted appellee’s recovery is should have because contributory negligence barred out merit. of his deceased is likewise with [appellants guilty
“[I]f were] of one or of the acts of more negligence alleged, appear cause, it other as does not that some any negligence, [appellee’s was, deceased], such as so preponderated probabili bringing result, about the that the human injury just likely negli ensued, if ties are that the gent would as have [appellants] [appellee] occurred, acts of had not should recover. appear [appellee’s negligent, If although [appellants] deceased] it does that and that
might guilty also have been preponderated bringing [her] so the result about probabilities likely injury the human are that the would have negligent [appellants] [appel occurred, ensued the acts had not negligent lee] However, should not recover. if both were and their *3 negligence produced stands so that related neither would have the negligence result, harmful and the of one has not so intervened as to preponderating negligence cause, make it the of such acts of both and the consist according general probabili as, to the course of human produce injurious ties, some in such effect that which did fact as en guilty concurring negligence, sue, case, in such both are and the recovery [appellee] proportion in [his should be the that reduced negligence injury, except deceased’s] course, contributed to the proportion recovery. more, be one-half or no there should be supra questions [Cit.]” Powell, Carter v. at 369-370 Because these “plain indisputable” do not have and answers under the evidence of by jury, appellants’ record and must be resolved the denial of mo summary judgment tion for is affirmed. Judgment McMurray, Birdsong, J., J., Banke, P. P. affirmed.
Sognier, Pope Cooper, Beasley, specially. JJ., J., concur. concurs Deen, J., P. dissents. Judge, concurring specially.
Beasley,
presented
proximate
case,
This
us,
it is
the
revolves around
contributory
portion
negligence
cause element of
I
tort.
concur
the
majority opinion
proximate
judgment.
of the
cause
the
I
the
see
aspect
as related to
different
Winzurk and Storer
a somewhat
way.
help paint
picture.
Several additional facts evidenced
a clearer
When
Suburban,
Burns’ vehicle
latter was lifted
collided
the
injuries
died.
she later
from which
Burns suffered
Mrs.
into the air.
The BMW
extensively damaged
front
side,
left
behind
on the
being
damage
area
panel,
door
quarter
the driver’s
worst
with the
compressed
impact
immediately
the car
The
it.
behind
area
and the
impact
sideways
on the Suburban
area
The
roof buckled.
and the
completely
impact pushed
off
its rear wheels
on the rear and
pavement.
police
up nearly perpendicular
in front
to the
It ended
of it.
proximate
opinion,
majority
recognized
the issue
in the
As
given
on
Winzurk’s
with the
cause starts
lane is
(I).
(a) (1)
per
negligence
§ 40-6-203
se. OCGA
“
a le
must be
of action
state a cause
‘To
conduct
gally
defendant’s
between
causal connection
attributable
inquiry
alleged injury.’
the defend
is not whether
The
[Cits.]
and
ant’s
injury, but rather
in fact of
a cause
conduct constituted
injury is
and the
that conduct
between
the causal connection
whether
too remote
Georgia,
recovery. [Cit.] In
a
cause
for the law to countenance
ordinarily
questions
reserved
are
may
undisputed
plain
jury,
make a
court
cases the
for the
Lewis,
Hercules v.
[Cits.]”
law.
determination as a matter of
(1983); quoted
&c. v.
Bell Tel.
in Southern
497) (1986).
175,
applicable
distinguishing
from re-
measurement
damage in-
“If the
§§
51-12-9.
mote is
in OCGA 51-12-8 and
stated
possible
only
imaginary
plaintiff
of a
curred
preponderate
contingent
circumstances
tortious act or other and
causing
injury,
damage
the basis of recov-
remote to be
such
is too
“Damages
ery against
wrongdoer.”
which are the
§
OCGA 51-12-8.
contingent
though
legal
to some
done,
and natural result of the
damages
However,
tracea-
extent, are
remote to be recovered.
not too
consequence,
legal
are
natural
act,
not its
ble to the
but which are
contingent
§
51-12-9.
OCGA
too remote and
measurement is
to be recovered.”
436,
paraphrased
Stanfield, v.
Oil
209) (1957).
McAuley Wills,
Given Burns was the fact whatever injuries if the headed towards an accident and even Suburban absent, the is have been killed evidence not conclusive she would present whether the or not. reasonable inference Suburban It is a gone that she would ravine as other cars earlier and have into the did injured words, not con killed. In other the evidence is not super not presence clusive that of the Suburban was the last efficient, vening, or or suf particular injury nearest cause she fered, i.e., death, opposed plain, It injury. to lesser not of, palpable, indisputable particular injury complained death, would have occurred her uncontrolled course of movement Harris, Hollingsworth by had not been Cf. v. altered the Suburban. (145 52) (1965). App. 112 Ga. 290 SE2d If presence proximately to her the Suburban contributed (as opposed injury death), death to short even it was not the sole cause, plaintiffs percentage long percent could recover some so as 50 more proximate of the cause was not attributable to her.
Thus, jury questions remain as to whether unlawful presence the Storer vehicle was a Mrs. cause of Burns’ death. Deen, Presiding Judge, dissenting. presented drivers of four vehicles the original wreck
an precipitated which Burns by evasive action taken Rev. West. hydroplaning, But Burns’ BMW have would been no It is neg- accident. assumed this was not result of Burns’ 501) ligence. Veber, 65, See Barlow v. App. 169 Ga. 66 SE2d (1983); (3b) (227 430) Ford Pinckney, 714, v. App. 138 Ga. 716 SE2d by Rev. West going through avoided the wreck lane left Thus, after Burns’ hydroplaned hydroplan- out of control. ing Burn’s car as a legally precip- result of the initial wreck was the itating injuries cause of the proximate her cause without the accident would not have happened.
Photographer Winzurk’s sta- merely Chevrolet Suburban was object ble her struck. proxi- car Such is not amount to enough to Stanfield, 436, mate cause. Oil v. 213 Ga. SE2d (1957) (illegal sign pole by erection of struck deceased not efficient Baughcum 21, of injury); Key cause v. Paving, App. Cecil 151) (1989) placed (improperly signs legal cause injury); 175, Southern Bell Tel. &c. v. 497) (1986) (phone legal booth struck cause injury passengers); Standard Oil 770- 344) (1969) (the improper assumed construction building gas not legal by improperly cause of fire removed caused Power, 229) (1936) Cain cap); v. Ga. 485-486 (illegally parked pedestrian bus not who injury *5 Co., 39 Ga. Transp. bus); v. Columbus Morrison was obscured ob- 276) (1929) (illegally car which motorcycle’s strik- view pedestrian’s structed Hollingsworth v. ing pedestrian);
52) (1965) (truck roadway causal connection stopped but no shown). 16, 1990 Decided March
Rehearing denied March Vroon, Bird, Graves, Bryan appellants. for & Judson A. Alston III, H. Donohue, Johnson, Watson T. Albert S. Wade Daniel Ware, appellees. Sharon W. v. THE
A89A1905. HIBBERT STATE. Judge. Presiding
Deen, in cocaine in an trafficking Lascelles Hibbert was convicted of Florida, from exceeding grams weight. Driving amount north Richland, Georgia. Dur- stopped improper display he was near tag ing stop, the car was rental trooper the brief the state ascertained stated he was going; and asked Hibbert where he was Hibbert friend, he driving Benning, to Fort to visit a but could Georgia, number, phone name or a give the friend nor an address aroused, permission asked suspicions trooper contact. His thus vehicle, search agreed. and Hibbert trunk, carpet trooper
When the noticed that looked he appeared pulled carpet He tampered to have been with. back taped brown-wrapped package discovered a contained a sub- knowledge stance he field-tested to Hibbert all be cocaine. disavowed of the package and its contents.
Thereafter, Miranda given when Hibbert was arrested and Later, speak taken station. at warning, he did not further until to the station, GBI interview Hib- Agent Bracewell conducted an signed bert. At first Hibbert then Hibbert rights, a waiver stated told attorney spoke. agent he wanted an he Hibbert before ask him routine terminated, proceeded interview was then questions biograph- report. incident to arrest He asked completing an questions of Hib- ical addresses about Hibbert for the names and bert’s “hesitated family agent, appellant members. to the According asking family’s when I him names and addresses started his me that an- giving that’s I when noted he seemed concerned heavily upon something weighing swer ... seemed like