McKinney & Co., Inc. v. Lawson

357 S.E.2d 786, 257 Ga. 222, 1987 Ga. LEXIS 730

• Court: Supreme Court of Georgia
• Decided: May 7, 1987
• Docket: 44041
• Status: Published

Opinions

Weltner, Justice.

Kathleen Lawson was struck by an automobile as she was attempting to go around a growth of tree branches which blocked a public right-of-way, and which extended out into the street. She brought an action against the motorist and against the landowner upon whose property the trees grew. A jury found no negligence on the part of the motorist, but found negligence on the part of the landowner and returned a verdict in favor of Lawson in the amount of $350,000. The Court of Appeals affirmed the trial court, McKinney & Co., Inc. v. Lawson, 180 Ga. App. 550 (349 SE2d 763) (1986). We granted certiorari to determine whether the landowner’s liability was governed by our holding in Intl. Paper Realty Co. v. Bethune, 256 Ga. 54 (344 SE2d 228) (1986), and to consider whether the verdict was excessive.

1. Lawson was twenty-nine years of age at the time of her injury. Her testimony indicates that on between one hundred seventy to one hundred ninety occasions, when morning rush hour traffic was heavy, she knowingly left the safety of the shoulder to go into a public street “several feet” in order to go around branches which blocked her vision of approaching traffic, and which obscured her from the vision of approaching motorists. While she testified that she was “forced” to go out into the street in order to get around the branches, we can find no evidence that anyone or any circumstance required her to take the action which resulted in her injuries. Nor can it be said from the evidence that Lawson was ignorant of the danger to which, repeatedly, she subjected herself.

2. The fact that the tree branches blocked passage along the right-of-way was known to Lawson the first time she walked along the south side of Collier Road. The branches constituted a static condition, were not inherently dangerous in and of themselves, and they did not change materially during the ten months Lawson detoured around them. Her knowledge of the risks involved was, at the least, equal to any knowledge attributable to the landowner. The negligence of Lawson came within a micron of the quantum of any negligence on the part of the landowner. An extract of the factual circumstances is set out in footnote one.¹

3. Lawson’s special damages did not exceed $4,500. By the time of trial, approximately three years after her injury, she had changed employers and was earning slightly more in salary than when she was injured. There is no question but that Lawson received a painful injury when her right leg was broken, and that this injury resulted in some disability. She may have some medical expenses in the future.

4. “The question of damages is one for the jury; and the court should not interfere with the jury’s discretion unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” OCGA § 51-12-12.

“After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict.” Boatright v. Rich’s, Inc., 121 Ga. App. 121 (173 SE2d 232) (1970). After indulging in every presumption and inference in favor of the verdict, we still must conclude that the verdict in this case resulted from gross error. We come to this conclusion from our analysis of the evidence, which, viewed in the light most favorable to Lawson, shows that her own negligence must be considered as at least 49% of the causation of her injury. Hence, in view of the amount of the verdict, we determine that the jury failed to compare Lawson’s obvious negligence with that of the landowner, and failed to reduce recovery accordingly. OCGA § 51-11-7. Central of Ga. R. Co. v. Wooten, 163 Ga. App. 622 (295 SE2d 369) (1982).

Judgment reversed.

All the Justices concur, except Bell, J., who concurs in the judgment only, and Clarke, P. J., Smith and Gregory, JJ., who dissent.

1 The testimony shows that Lawson had lived on Collier for about ten months prior to her injury. For almost every working day during this period she had walked to work, always taking the same route. Collier runs in a generally east to west direction. Lawson lived on the south side of the street and to the east of Seaboard Place, which intersects Collier and runs in a generally north to south direction. Walking in a westerly direction, Lawson would cross Seaboard, and then for about 300 feet along the south side of Collier she would walk in the street along a concrete gutter which was about two feet wide. There was no sidewalk or shoulder along this part of her journey. When the shoulder became available, she would leave the street and walk along a grass covered public right-of-way until she reached a point where Collier began a rather sharp turn to her left. Here she encountered a strand of tree limbs originating from a tree or trees to her left. The limbs completely blocked the right-of-way and grew several feet out into Collier. She could not see through the dense growth of leaves and branches, and motorists driving east could not see Lawson when she was behind the branches. She could not go around the branches to her left because of a steep drop-off in the surface of the ground. She would step to her right off of the shoulder and onto the surface of the street where the concrete gutter was located and listen for the sounds of trucks and other vehicles which might be approaching. When she was satisfied that no vehicles were approaching, she would get as close as possible to the branches, walk around them, and then get back on the shoulder and complete her walk to work.

On the opposite or north side of Collier from Seaboard Place west to the next intersection there was a grassy shoulder with no obstructions and for a portion of her way to work a paved sidewalk. On her morning walks to work Lawson declined to cross Collier at Seaboard from south to north and thus avoid the branches which blocked the right-of-way on the south for two reasons. (1) Morning rush hour traffic on Collier at its intersection with Seaboard was heavy and because of the proximity of this intersection to the crest of a hill to the west on Collier she could not see traffic approaching from the west. (2) Even though on the north side she could walk completely out of the street on a shoulder and ultimately on a sidewalk she did not want to walk with her back to traffic as she walked west. Presumably she feared that if an automobile left the street, jumped the curb and came onto the right-of-way she would not be able to take evasive action because she would not see the automobile until it was too late. She walked home on the north side, generally going one half a mile past Seaboard to Howell Mill Road where she could shop and where a crosswalk here afforded safe passage across Collier from north to south. Occasionally, however, she would stop at Seaboard and cross to the south there.

Shortly after she was struck Lawson gave a statement to an insurance investigator in which she said that she believed both the south and the north routes to work were unsafe.

When Lawson was struck she had been in the street for at least one minute, hidden from the view of motorists going east on Collier and not able to see traffic approaching her from the west. She was thrown up on the grassy shoulder. Her right leg was fractured and she received other painful injuries.

We note from Lawson’s testimony that during the ten months she encountered the offending branches, she never complained to the landowner about the branches or requested that they be removed from the right-of-way.