Bobbie Booth v. Tina Brewster

• Court: Court of Appeals of Georgia
• Decided: November 7, 2012
• Docket: A12A1475
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

November 7, 2012

In the Court of Appeals of Georgia A12A1475. BOOTH v. BREWSTER.

MCFADDEN, Judge.

Bobbi Jo Booth brought an action against Tina Brewster for injuries Booth

sustained in a car accident. A jury found in favor of Brewster, and the trial court

denied Booth’s motion for new trial. On appeal, Booth argues that the trial court erred

in charging the jury on the doctrine of last clear chance. Although we agree that the

evidence did not warrant the charge, the error was not harmful. Accordingly, we

affirm.

The evidence shows that the collision occurred on July 29, 2009, when

Brewster pulled out of a parking lot into the path of Booth’s vehicle. Brewster

testified at trial that, although she looked in both directions before pulling out of the

parking lot, she did not see Booth’s vehicle before the collision occurred. Booth testified that she saw Brewster pull into her path but was unable to avoid the

collision.

Over Booth’s objection, the trial court gave the following jury charge:

People are under an obligation to use ordinary care to avoid injuring others after finding them in a dangerous place regardless of how they got there and are liable for the failure to do so. This rule is known as the last clear chance doctrine. The last clear chance doctrine only applies when it is proved by a preponderance of the evidence that the plaintiff placed herself in danger because of her own negligence and the defendant actually knew of the plaintiff’s danger and the defendant had an opportunity to take action to avoid the injury to the plaintiff by the use of ordinary care under the conditions and circumstances that existed at the time but failed to do so.

If you find such to be proved, then the failure of the defendant to use ordinary care under such circumstances to avoid the injury to the plaintiff would be considered the proximate cause of the plaintiff’s injury.

The court also charged the jury on the principle of comparative negligence. See

OCGA § 51-11-7.

We agree with Booth that the evidence did not warrant the trial court’s charge

on last clear chance. There was no evidence either that the plaintiff, Booth, had

2 placed herself in danger prior to the defendant, Brewster, pulling out of the driveway,

or that Brewster actually knew that Booth was in any danger. Although Brewster

points to evidence that she contends showed Booth had knowledge and opportunity

to take action, the charge given by the court did not pertain to a plaintiff’s knowledge

and opportunity.

Nevertheless, we find no reversible error. It is true that “[i]nstructions not

warranted by the evidence are cause for a new trial unless it is apparent that the jury

could not have been misled thereby,” Dept. of Transp. v. Davison Investment Co., 267

Ga. 568, 570 (2) (481 SE2d 522) (1997) (citations and punctuation omitted), and

Booth argues that the last clear chance charge could have misled the jury into

believing that the last clear chance doctrine applied to Booth. But, as stated above,

the plain language of the charge given by the court limited the application of the last

clear chance doctrine to Brewster. Compare Fouts v. Builders Transport, 222 Ga.

App. 568, 569-570 (1) (474 SE2d 746) (1996) (last clear chance charge that

addressed whether either the plaintiff or the defendant could have avoided an

accident through the use of ordinary care was reversible error, where the facts

supported the giving of such charge only as to one of the parties) with Karp v. Niver,

142 Ga. App. 241, 242 (2) (235 SE2d 589) (1977) (erroneous giving of last clear

3 chance charge that clearly addressed the defendant’s, and not the plaintiff’s, last clear

chance was harmless error). Moreover, the court also specifically addressed the effect

of any negligence on the part of Booth in its charge on comparative negligence. We

find no ground for reversal.

Judgment affirmed. Barnes, P. J., and Adams, J., concur.