Neubert v. Vigh

462 S.E.2d 808, 218 Ga. App. 693, 95 Fulton County D. Rep. 3157, 1995 Ga. App. LEXIS 843

• Court: Court of Appeals of Georgia
• Decided: October 10, 1995
• Docket: A95A0993
• Status: Published

Opinions

Andrews, Judge.

Appellant Neubert appeals from the state court’s grant of summary judgment in favor of appellee Vigh on the issue of Vigh’s liability for damages for injuries sustained by Brad Neubert, appellant’s son, in a single car collision caused by Jason Vigh, appellee’s minor son. Neubert’s sole enumeration of error is that the lower court’s grant of summary judgment was improper because Vigh admitted liability for Neubert’s son’s injuries by offering to pay medical bills related to the automobile accident.

Vigh’s son, Jason, took Vigh’s car without permission while he was out of town and while Jason was staying with another family. Jason had a single car accident in which three passengers were injured, including Neubert’s son Brad. Several days later, Vigh visited the parents of the injured passengers and offered to help pay their insurance deductibles. Neubert contends that Vigh admitted liability by making these offers and therefore summary judgment was not proper. Neubert relies on Monson v. Brown, 163 Ga. App. 42 (292 SE2d 486) (1982), which held that an offer to pay medical bills constitutes an admission of liability.

Monson has not been expressly overruled, but more recent cases demonstrate that it is not controlling. Recently, this Court held that “activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should not be considered as an admission of liability.” Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (416 SE2d 127) (1992); Rosequist v. Pratt, 201 Ga. App. 45, 46 (410 SE2d 316) (1991). Further, in Steverson v. Eason, 194 Ga. App. 273 (390 SE2d 424) (1990), the court held that statements made by the defendant that he felt responsible for the death of plaintiff’s husband and that he would do whatever he could for the plaintiff fell within the category of expressions of benevolence or sympathy and not into the category of admissions of liability for the injury.

Neubert relies on two affidavits to support her position that Vigh’s offers to pay were not made on the impulse of benevolence or sympathy, but instead constituted admissions of liability. In one affidavit, Wanda Jackson states that Vigh’s wife told Jackson that the Vighs would pay Jackson’s son’s medical bills. However, a statement by Vigh’s wife cannot be construed as an admission by Vigh and thus is irrelevant. In the other affidavit, Robert Borgwat states that Vigh said he would be responsible for Borgwat’s son’s medical bills. Under Steverson, this statement does not constitute an admission of liability either, but rather is an expression of benevolence or sympathy. Further, Vigh stated in his deposition that he offered to pay Neubert’s insurance deductible “out of sympathy for Karen Neubert in telling me what her problems were and not having the money to pay for some of the medical bills.”

It should also be noted that this is not a case in which the person offering to help with the medical bills was the person directly involved in the accident. The dissent stresses the amount of time that had passed before Doug Vigh made the offer of help and thus distinguishes this case from Rosequist and Steverson. However, since Doug Vigh was out of town at the time of the accident, a contemporaneous offer of help was not possible. Further, the record clearly shows that Doug Vigh intended to have Jason pay the medical deductibles as well as all fines accruing from the accident.

Therefore, since Neubert has come forward with no evidence tending to show that Vigh felt that he was responsible for the accident because he had negligently supervised his child by allowing him access to a “dangerous instrumentality,” the trial court properly granted summary judgment.

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Smith, JJ., concur. Beasley, C. J., and Ruffin, J., concur specially. McMurray, P. J., dissents.