Price v. Thapa

745 S.E.2d 311, 323 Ga. App. 638, 2013 Fulton County D. Rep. 2432, 2013 Ga. App. LEXIS 696
CourtCourt of Appeals of Georgia
DecidedJuly 10, 2013
DocketA13A0748
StatusPublished
Cited by7 cases

This text of 745 S.E.2d 311 (Price v. Thapa) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. Thapa, 745 S.E.2d 311, 323 Ga. App. 638, 2013 Fulton County D. Rep. 2432, 2013 Ga. App. LEXIS 696 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

James Price filed a complaint for damages against Raju Thapa and other defendants1 for injuries he sustained in a motor vehicle collision. On Thapa’s motion for summary judgment, the trial court found that Price had given contradictory testimony regarding his joint enterprise theory of liability based on “tandem driving.” Applying the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), the court construed the favorable portions of Price’s testimony against him and found that, absent such favorable testimony, Thapa was entitled to judgment as a matter of law. On appeal, Price contends that the trial court erred in granting summary judgment, arguing that his testimony was not contradictory and that his testimony was supported by other evidence. For the following reasons, we reverse.

A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” (Citations omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

“[A] person driving a vehicle recklessly and in tandem with another vehicle [can] be held liable for a resulting collision under a joint enterprise theory, even if his car was not directly involved in the collision.” (Citations and footnotes omitted.) Baxter v. Wakefield, 259 Ga. App. 475, 476 (577 SE2d 804) (2003). To impose liability against a defendant under a joint enterprise theory, a plaintiff must show that the defendant was jointly engaged with one or more persons in an unlawful enterprise, and that each performed a wrongful act in pursuit of such purpose. If one of the wrongful acts causes an injury, the parties may be held jointly and severally liable. Id. With regard to “tandem driving” specifically, liability under a joint enterprise theory is authorized

[w]hen there is an understanding [between the participants] to reach a common destination and in doing so illegal speed is used and the cars are driven so closely together as to be practically in tandem, or to constitute a unit, . . . [creating] a situation of mutual stimulation where the negligence of [639]*639each participant is so related to the negligence of the other participants that the participants should each be chargeable with the causal negligence of the other as to speed.

(Punctuation and footnote omitted.) Id. at 476-477.

The record shows that, on September 25,2008, Price was driving westbound on GA Highway 155 (Jackson Road) when a white van traveling southbound on Johnny Cut Road at an excessive rate of speed ran a stop sign and collided with Price’s vehicle. The driver of the van, Vijay Shah, was killed in the collision, and Price was seriously injured. Thapa was driving his vehicle 20 to 30 feet behind Shah’s van at the time of the collision, and he was following Shah to a gas station/convenience store.

In a sworn affidavit, Price stated that he observed Shah’s van and Thapa’s vehicle passing through the intersection at a high rate of speed. Price further stated that both vehicles ran the stop sign, and that he observed Thapa’s vehicle pass behind him prior to being struck by the van. Price stated that both vehicles were traveling approximately 60 to 70 miles per hour, in excess of the posted speed limit of 55 miles per hour. In his subsequent deposition, Price testified that he saw the white van approaching the intersection at approximately 60 miles per hour, but that he did not see Thapa’s vehicle until it passed behind him just before his vehicle was struck by the van. Based on the circumstances, Price testified that Thapa “had to be going just about as fast [as the van] ... to be coming behind me that fast [prior to the collision]” and “to be that close behind [the van].” Price further testified that he did not actually see the vehicles run the stop sign, but “that they had to have” based on “the speed of the vehicles and the impact.” Although Price testified that he did not know for sure if Thapa was following behind the van, he thought that Thapa was following the van because he saw Thapa “zoom” past the rear of his vehicle “maybe a second” before the collision.

Thapa testified during his deposition that he was, in fact, following Shah’s van at the time of the collision, and that he was approximately 20 to 30 feet behind the van and driving about 40 to 45 miles per hour. Thapa further testified that Shah did not stop at the stop sign, and that he, himself, tried to stop but continued on through the intersection before pulling over and parking at the side of the road. Although Thapa later testified that he stopped at the stop sign before the accident, the officer who investigated the accident testified that there were no skid marks leading up to the stop sign at the intersection, and that he would expect to see skid marks from Thapa’s vehicle if he was driving 40 to 45 miles per hour and 20 to 30 feet behind Shah’s van.

[640]*640Generally speaking, in an appeal from an order granting a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion. Silver Pigeon Properties v. Pickling & Co., 316 Ga. App. 167, 167 (728 SE2d 801) (2012). However, when a party has given contradictory testimony on the dispositive issue in the case, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must “construe the contradictory testimony against him.”2 Prophecy, supra at 28 (1). In such a case, the court must disregard “the favorable portions of the contradictory testimony” and then construe the remaining testimony and evidence in favor of the nonmovant to determine whether summary judgment should be granted. (Footnote omitted.) Id. For purposes of the Prophecy rule, testimony is contradictory “if one part of the testimony asserts or expresses the opposite of another part of the testimony.” (Footnote omitted.) Id. at 30 (2). The issue of whether a party’s testimony is contradictory “is a question for the [trial] judge to decide.” Id.

The court below found contradictions in Price’s statements in his affidavit and deposition testimony concerning the speed of the vehicles and the running of the stop sign, and found that Price failed to offer any reasonable explanation for the contradictions. We conclude, however, that Price’s statements concerning these matters were essentially consistent and do not provide a proper basis for applying the Prophecy rule. Furthermore, Price’s contention that Thapa failed to stop at the stop sign is supported by other evidence of record.

For purposes of the Prophecy rule, the issue of whether a party-witness’s testimony is inconsistent is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said. Smith v. Vencare, Inc., 238 Ga. App. 621, 624 (1) (519 SE2d 735) (1999). In this case, Price’s deposition testimony as to how the accident occurred is not in material conflict with his description of the accident in his affidavit.

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Cite This Page — Counsel Stack

Bluebook (online)
745 S.E.2d 311, 323 Ga. App. 638, 2013 Fulton County D. Rep. 2432, 2013 Ga. App. LEXIS 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-thapa-gactapp-2013.