FIRST DIVISION BARNES, P. J., BROWN and HODGES, 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. https://www.gaappeals.us/rules
December 6, 2022
In the Court of Appeals of Georgia A22A1470. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. BROWN.
BROWN, Judge.
We granted Metropolitan Atlanta Rapid Transit Authority’s (MARTA) request
for an interlocutory appeal to determine whether the trial court erred in denying
MARTA’s motion for summary judgment on Norman Brown’s negligence claim
arising from his fall on a MARTA train as it was departing the Georgia State station.
Brown’s complaint alleged that MARTA negligently failed to provide sufficient time
for him to safely secure himself prior to departure. For the reasons that follow, we
reverse the denial of summary judgment.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.
(Citation and punctuation omitted.) MARTA v. Fife, 220 Ga. App. 298, 298-299 (469
SE2d 420) (1996). Viewing the evidence in favor of Brown, the record shows that on
June 28, 2017, at approximately 5:30 to 6:00 p.m., “in the rush hour,” Brown boarded
a train at the Georgia State station to return home. Brown was using a walker because
he could not “stand that good” and had difficulty walking as a result of gout in his
leg. Brown recalled that a lot of people were getting on the train, that the train was
packed, that he was one of the last people to get on the train, and that he took “one
or two steps” when “all of a sudden the train pulled off fast now, I remember falling.”
Brown remembers hitting the floor but does not remember anything after that because
he hit his head. Brown explained that he “had just got[ten] on the train” and was
“standing there when [the train] pulled off fast, I fell because I couldn’t stand that
2 good. Just like that wheel of the walker just went one way and I went the other way.
That’s the only thing I remember.” He testified that he could not get to a seat because
it happened so fast. He was not holding onto a safety strap because “he wasn’t that
close to it” and had “just barely” come “through the door.” According to Brown, he
had a concussion from the fall and a knee injury, which required surgery. Brown sued
MARTA, asserting claims for negligence and negligence per se under OCGA §§ 46-
9-11 and 46-9-132.2
MARTA’s 30 (b) (6) representative testified that the train operator is
responsible for determining the exact moment a train departs a station: “Once they
pull into a station and passengers either enter the train or exit the train and they safely
close the doors and they have a green signal, they’re okay to proceed.” Once the
doors close, the train operator may depart the station right away, but as the
representative explained, the operator first has to get down from the operator seat he
1 “Carriers as such are bound to exercise ordinary diligence. Common carriers as such are bound to use extraordinary diligence, and in cases of loss the presumption of law is against them, and no excuse avails them unless the loss was occasioned by the act of God or the public enemies of the state.” OCGA § 46-9-1. 2 “A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” OCGA § 46-9-132.
3 uses to look out the window; close the door and his window; sit down in the train and
then he can move the railcar. It is within the discretion of the operator when to take
off after the doors close and the time can vary depending on the station, the number
of people getting on and off, the weather, the time of day, and which line. The
representative further explained that most of the systems are automated, but that
sometimes rail control in Chamblee may indicate a yellow or red signal meaning that
the train is not cleared to proceed. He also explained acceleration of MARTA trains,
testifying that “the way the train pulls off, it pulls off slowly, you know. The speed
is not immediate. So it slowly pulls off from the station, and then it goes to a certain
amount of speed.”
A second MARTA 30 (b) (6) representative testified that it is the train
operator’s job to make sure that everyone boards the train safely before they close the
door: “[T]heir job is to have their head out looking down the platform. Now, each car
is 75 feet long, so for six cars [that] is 450 feet. The platform is 600 feet. So they’re
looking down the platform to make sure that everyone gets on safely before they close
the doors.” When asked how long is it before the train takes off once the doors close,
the representative testified as follows:
4 I don’t know the exact time, but typically what happens is that when the operator hits the door close button, there’s a chime, an audible chime, that lets everybody know that the doors are about to close. There’s also [an] indicator light above each car, above each door, that will flash so that the hearing impaired will know that the doors are about to close. . . . And so once the operator closes the door and hits what he calls an automatic start button, there’s a delay. I don’t [know] how many seconds that it is, but it’s an automatic one. So he hits the start button. Once the doors close, there’s a few-second delay, and then the train gradually picks up speed. And I don’t know what that speed is, but, you know, it’s probably, like, maybe five or ten miles an hour. And it gradually picks up speed, and that is computer-generated — automated.
The representative acknowledged that there are no rules or regulations or systems in
place to make sure that riders are “either seated or otherwise holding onto something
so they’re secure before the train takes off.” As the representative explained, the
trains are 75 feet per car, so there is no way for the operator to know that everyone
is seated, and many times, particularly during rush hour, some people do not sit:
[I]t’s understood once you get on a train and the doors are closing, we’re about to take off.
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FIRST DIVISION BARNES, P. J., BROWN and HODGES, 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. https://www.gaappeals.us/rules
December 6, 2022
In the Court of Appeals of Georgia A22A1470. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. BROWN.
BROWN, Judge.
We granted Metropolitan Atlanta Rapid Transit Authority’s (MARTA) request
for an interlocutory appeal to determine whether the trial court erred in denying
MARTA’s motion for summary judgment on Norman Brown’s negligence claim
arising from his fall on a MARTA train as it was departing the Georgia State station.
Brown’s complaint alleged that MARTA negligently failed to provide sufficient time
for him to safely secure himself prior to departure. For the reasons that follow, we
reverse the denial of summary judgment.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.
(Citation and punctuation omitted.) MARTA v. Fife, 220 Ga. App. 298, 298-299 (469
SE2d 420) (1996). Viewing the evidence in favor of Brown, the record shows that on
June 28, 2017, at approximately 5:30 to 6:00 p.m., “in the rush hour,” Brown boarded
a train at the Georgia State station to return home. Brown was using a walker because
he could not “stand that good” and had difficulty walking as a result of gout in his
leg. Brown recalled that a lot of people were getting on the train, that the train was
packed, that he was one of the last people to get on the train, and that he took “one
or two steps” when “all of a sudden the train pulled off fast now, I remember falling.”
Brown remembers hitting the floor but does not remember anything after that because
he hit his head. Brown explained that he “had just got[ten] on the train” and was
“standing there when [the train] pulled off fast, I fell because I couldn’t stand that
2 good. Just like that wheel of the walker just went one way and I went the other way.
That’s the only thing I remember.” He testified that he could not get to a seat because
it happened so fast. He was not holding onto a safety strap because “he wasn’t that
close to it” and had “just barely” come “through the door.” According to Brown, he
had a concussion from the fall and a knee injury, which required surgery. Brown sued
MARTA, asserting claims for negligence and negligence per se under OCGA §§ 46-
9-11 and 46-9-132.2
MARTA’s 30 (b) (6) representative testified that the train operator is
responsible for determining the exact moment a train departs a station: “Once they
pull into a station and passengers either enter the train or exit the train and they safely
close the doors and they have a green signal, they’re okay to proceed.” Once the
doors close, the train operator may depart the station right away, but as the
representative explained, the operator first has to get down from the operator seat he
1 “Carriers as such are bound to exercise ordinary diligence. Common carriers as such are bound to use extraordinary diligence, and in cases of loss the presumption of law is against them, and no excuse avails them unless the loss was occasioned by the act of God or the public enemies of the state.” OCGA § 46-9-1. 2 “A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” OCGA § 46-9-132.
3 uses to look out the window; close the door and his window; sit down in the train and
then he can move the railcar. It is within the discretion of the operator when to take
off after the doors close and the time can vary depending on the station, the number
of people getting on and off, the weather, the time of day, and which line. The
representative further explained that most of the systems are automated, but that
sometimes rail control in Chamblee may indicate a yellow or red signal meaning that
the train is not cleared to proceed. He also explained acceleration of MARTA trains,
testifying that “the way the train pulls off, it pulls off slowly, you know. The speed
is not immediate. So it slowly pulls off from the station, and then it goes to a certain
amount of speed.”
A second MARTA 30 (b) (6) representative testified that it is the train
operator’s job to make sure that everyone boards the train safely before they close the
door: “[T]heir job is to have their head out looking down the platform. Now, each car
is 75 feet long, so for six cars [that] is 450 feet. The platform is 600 feet. So they’re
looking down the platform to make sure that everyone gets on safely before they close
the doors.” When asked how long is it before the train takes off once the doors close,
the representative testified as follows:
4 I don’t know the exact time, but typically what happens is that when the operator hits the door close button, there’s a chime, an audible chime, that lets everybody know that the doors are about to close. There’s also [an] indicator light above each car, above each door, that will flash so that the hearing impaired will know that the doors are about to close. . . . And so once the operator closes the door and hits what he calls an automatic start button, there’s a delay. I don’t [know] how many seconds that it is, but it’s an automatic one. So he hits the start button. Once the doors close, there’s a few-second delay, and then the train gradually picks up speed. And I don’t know what that speed is, but, you know, it’s probably, like, maybe five or ten miles an hour. And it gradually picks up speed, and that is computer-generated — automated.
The representative acknowledged that there are no rules or regulations or systems in
place to make sure that riders are “either seated or otherwise holding onto something
so they’re secure before the train takes off.” As the representative explained, the
trains are 75 feet per car, so there is no way for the operator to know that everyone
is seated, and many times, particularly during rush hour, some people do not sit:
[I]t’s understood once you get on a train and the doors are closing, we’re about to take off. So there’s no notification about everybody being seated because at any given time, probably 20 percent of your people are standing anyway because they’re only going one station, and people don’t just sit all the time unless they’re going a few stations.
5 MARTA’s acting chief engineer of reliability and rail car rehabilitation averred
in an affidavit in support of MARTA’s motion for summary judgment that given the
time frame indicated on the MARTA police incident report, “[t]rain consist 104 with
cars 157/158 met the parameters for the incident.” He found that there were no
incident reports or work orders for those cars on June 28, 2017. He further testified
that “the train Mr. Brown was on departed from the Georgia State station westbound
and no abnormal acceleration was reported leaving the platform from zero speed.” He
stated that “[t]he maximum acceleration rate achievable on MARTA railcars is 3.2
miles per hour per second +/-5%; MARTA [railcar] acceleration rates are software
limited to 3.0 miles per hour per second +/-5%; this rate is within general industry
standards.” Additionally, all MARTA railcars’ jerk limits are programmed to 2.0
miles per hour per second +/-0.2 miles per hour per second. Adjustments are
hardcoded at MARTA and only possible using a laptop computer interface with
password security by the manufacturer. The jerk limits prevent “excessive
acceleration rate changes (i.e., any unusual and unnecessary jerking).” The engineer
averred that
[a]fter a review of all of the foregoing information, transportation report, maintenance records, and the absence of any reports from any train
6 operator or any other complaints from other patrons, other than the Plaintiff, and based upon [his] education, training and experience with MARTA train cars and rail system, the MARTA railcars 157/158, did not operate abnormally or accelerate abnormally or sustain any unusual or unnecessary jerking, on June 28, 2017, at or around the time of the reported incident of 21:00 to 23:30 hours.[3]
Following discovery, MARTA moved for summary judgment, arguing, in
relevant part, that (1) as to Brown’s negligence claim, there is no record evidence
indicating that the sudden movement of the train as it departed the station was
unusual and unnecessary at the particular time and place, and (2) Brown’s negligence
per se claim fails under OCGA § 46-9-1 because this case does not involve a loss of
goods and there is no evidence to show that MARTA was negligent such that it
violated any statutory duty laid forth in OCGA § 46-9-132. The trial court denied
MARTA’s motion as to Brown’s ordinary negligence claim, concluding that a jury
question exists as to whether MARTA had a duty to ensure that Brown “had a
sufficient opportunity to secure himself in the train before the train moved.” As to
3 Although Brown deposed that the incident occurred at “rush hour,” the reported time frame of the incident according to a MARTA police incident report indicates “21:00 and 23:30 hours.” According to Brown, he rode the train for several hours “going back and forth” until some people got him off the train and a MARTA bus driver called MARTA police.
7 Brown’s negligence per se claim, the trial court agreed with MARTA that OCGA §
46-9-1 does not apply but reached a different conclusion as to the alleged violation
of OCGA § 46-9-132, concluding that a jury question exists as to whether MARTA
violated that statute, and denied MARTA’s motion on that ground. The trial court
subsequently certified its order for immediate review, and this Court granted
MARTA’s application for interlocutory appeal.
1. In related enumerations of error, MARTA contends that the trial court
misapplied the law governing its liability in this case, resulting in its erroneous denial
of summary judgment in MARTA’s favor. We agree.
In suits alleging negligent operation of a railroad, street car, or bus, it is well
established in Georgia that the plaintiff must present evidence showing that the
alleged negligent movement of the conveyance was not only (a) sudden and violent,
but also (b) that it was unusual and unnecessary at that time and place. See Central
of Ga. R. Co. v. Lippman, 110 Ga. 665, 668 (36 SE2d 202) (1900) (train); Crawley
v. MARTA, 147 Ga. App. 293 (248 SE2d 555) (1978) (bus); Ga. Power Co. v. Watts,
56 Ga. App. 322, 323-324 (1) (192 SE 493) (1937) (street car) ; Central of Ga. R. Co.
v. Parish, 17 Ga. App. 689, 690 (1) (1916) (train). Operators have a duty to provide
sufficient time to board a train or streetcar. See Poole v. Ga. R. and B. Co., 89 Ga.
8 320 (15 SE 321) (1892); Columbus R. Co. v. Joyce, 25 Ga. App. 652, 653 (104 SE 21)
(1920) (every streetcar company has a duty to “allow the persons desiring to embark
upon said cars or debark from the same a reasonable time in which to get on the car
or get off the car; and the question as to what constitutes a reasonable time is always
a fact for determination by the jury”). With regard to whether an operator has a duty
to ensure that a passenger has a reasonable time to find a seat before departing a
station, however, our courts have concluded that such a duty is owed for
railroads/freight-trains, but not street cars. See Macon D. and S. R. Co. v. Moore, 108
Ga. 84, 88 (33 SE 889) (1899); Gainesville M. R. Co. v. Jackson, 1 Ga. App. 632 (57
SE 1007) (1907). Compare Watts, 56 Ga. App. at 323. The rationale for this
distinction is that “it [is] a matter of universal knowledge that a passenger entering
upon a street-car must anticipate the prompt starting of the car just as soon as he has
gained a safe entrance.” Joyce, 25 Ga. App. at 656 (Jenkins, J., dissenting); Watts, 56
Ga. App. at 324 (1) (adopting Judge Jenkins’ dissent in Joyce). See also Martin v. Ga.
Power Co., 45 Ga. App. 799 (165 SE 880) (1932) (noting that it “is well known [that
street car] stops and starts must be most frequent and brief in order to at all subserve
the use intended by the service”).
9 As there has not yet been a case applying these standards to the alleged
negligent operation of MARTA trains, we do so for the first time here and find that
because a MARTA train is akin to a street car, MARTA had no duty to give
passengers a reasonable time to find a seat before departing the station. As Judge
Jenkins explained in his dissent in Joyce, requiring a street-car operator to hold its
cars stationary until each and every passenger has reached a seat or “place for
standing” inside the car “imposes a totally impracticable burden, and, as a matter of
general and common knowledge, would have the effect of paralyzing the practical
and efficient operation of every street car.” Joyce, 25 Ga. App. at 655 (Jenkins, J.,
dissenting).
Accordingly, the trial court erroneously concluded “that a jury question exists
regarding whether [MARTA] had a duty to ensure that Plaintiff had a sufficient
opportunity to secure himself in the train before the train moved.” The proper
question is whether Brown demonstrated genuine issues of material fact with regard
to whether the acceleration of the MARTA train was (a) sudden and violent, as well
as, (b) unusual and unnecessary at that time and place. As MARTA presented
evidence, through the affidavit of its acting chief engineer of reliability and rail car
rehabilitation, that the train on which Brown was riding did not accelerate abnormally
10 or in an unnecessary way, and Brown has presented no evidence to the contrary, the
trial court erred by denying MARTA’s motion for summary judgment on Brown’s
negligence claim. See Watts, 56 Ga. App. at 323 (1) (reversing judgment in favor of
plaintiff against street car company where defendant introduced uncontradicted
evidence “to the effect that there was no sudden, unusual, or unnecessary jerk” of the
street car). Compare Kirkland v. Seaboard C. L. R. Co., 230 Ga. 108, 110 (196 SE2d
11) (1973) (finding plaintiff’s testimony that, while he had been jerked by railroad
train many times, he had never before been thrown to floor sufficient to show that
sudden stop was unusual).
2. MARTA contends that the trial court erred in denying summary judgment
on Brown’s negligence per se claim because there is no evidence that MARTA
violated its statutory duty under OCGA § 46-9-132.4 Brown contends that MARTA
violated its duty by having no policy as to how much time it should wait between
4 To the extent Brown takes issue with the admissibility of the affidavit of MARTA’s chief engineer in response to this enumeration of error, Brown has waived this argument. See All American Quality Foods v. Smith, 340 Ga. App. 393, 394, n.1 (797 SE2d 259) (2017) (“[o]bjections to affidavits . . . will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment”) (citation and punctuation omitted).
11 closing the doors and the train beginning to move. He also points to evidence that the
train operator decides when to start moving. Again, we agree with MARTA.
“[A] common carrier of passengers is not an absolute and unqualified insurer
of the safety of its passengers.” Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d
267) (1991). Rather, “[a] carrier of passengers must exercise extraordinary diligence
to protect the lives and persons of his passengers but is not liable for injuries to them
after having used such diligence.” OCGA § 46-9-132. See also Walker v. MARTA,
226 Ga. App. 793, 795 (1) (487 SE2d 498) (1997). Extraordinary diligence is defined
as “that extreme care and caution which very prudent and thoughtful persons exercise
under the same or similar circumstances.” OCGA § 51-1-3. See also MARTA v.
Rouse, 279 Ga. 311 (1) (612 SE2d 308) (2005).
It is well established that “the occurrence of an unfortunate event is not
sufficient to authorize an inference of negligence.” (Citation and punctuation
omitted.) Robertson v. MARTA, 199 Ga. App. 681, 682 (405 SE2d 745) (1991). As
MARTA points out in its brief, Brown has no evidence to support that MARTA
breached its duty other than his opinion — based on pure conjecture and speculation
— that the train took off quickly and he fell, but this is not enough to prove that
MARTA violated its statutory duty. See Brown v. DeKalb County, 333 Ga. App. 441,
12 444 (777 SE2d 23) (2015) (“[l]ay opinion lacking a proper foundation cannot be
considered when ruling upon a summary judgment motion”). Pointing to a lack of a
policy as to how much time MARTA train operators should wait between closing the
doors and the train beginning to move or time of departure being at the discretion of
the train operators, without more fails, to demonstrate a violation of OCGA § 46-9-
132.
Additionally, as we already pointed out in Division 1 — in a case applying
extraordinary diligence — MARTA has no duty to give its passengers a reasonable
time to find their seats before departing the station. See Watts, 56 Ga. App. at 323-
324 (1) (while a railroad is bound not to start until its passengers have a reasonable
time to get to their seats, such is not the law with reference to street cars).
Accordingly, the trial court erred in denying summary judgment to MARTA on
Brown’s claim for negligence per se under OCGA § 46-9-132.
Judgment reversed. Barnes, P. J., and Hodges, J., concur.