FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and BRANCH, J.
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. http://www.gaappeals.us/rules/
July 16, 2013
In the Court of Appeals of Georgia A13A0692, A13A0693. EATMON v. WEEKS et al.; and vice versa.
B RANCH, Judge.
On the early afternoon of June 29, 2010, Princess Eatmon was driving her car
in the left northbound lane of Dawson Road toward Albany when a pickup truck
traveling in the opposite direction and driven by Flaval Weeks veered across the
turning lane separating the road’s two northbound and two southbound lanes and hit
Eatmon’s car. Eatmon sustained a broken leg and other injuries. Weeks, who suffered
a head wound in the crash, could not tell a responding police officer anything about
the accident, was diagnosed as having suffered a stroke on the day in question, and
died a few weeks later. Eatmon brought a negligence action against Weeks’s estate,
which counterclaimed for the same. After the trial court denied cross-motions for
summary judgment, this Court granted both parties’ applications for interlocutory review. We reverse the trial court’s denial of summary judgment in both cases because
there is no evidence showing that either Eatmon or Weeks was responsible for the
accident.
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. . . . [T]he 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. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
(Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In
Eatmon’s appeal from the denial of her motion for summary judgment (Case No.
A13A0692), we view the evidence in the light most favorable to Weeks’s estate as the
non-movant; in the estate’s appeal from the denial of its motion for summary
judgment (Case No. A13A0693), we view the evidence in the light most favorable to
Eatmon as the non-movant.
2 Case No. A13A0692
Eatmon argues that the undisputed evidence shows that she had no opportunity
to avoid Weeks’s truck as it veered into her lane, and that the estate therefore cannot
show that she drove negligently in the moments before the accident. We agree.
Georgia law “imposes a duty on all drivers to exercise ordinary care with regard
to other drivers on or users of the highway.” McKissick v. Giroux, 272 Ga. App. 499,
501 (612 SE2d 827) (2005). Specifically, “[e]very driver is under a duty to keep a
proper lookout for potential hazards. A driver has no right to assume that the road
ahead of him is clear of traffic, and it is his duty to maintain a diligent outlook ahead.”
(Citation and punctuation omitted.) Hayes v. Crawford, 317 Ga. App. 75, 78 (730
SE2d 26) (2012). A driver breaches this duty, however, only where she “is reasonably
able to ascertain that she is about to collide with another driver and nevertheless takes
no reasonable evasive action where possible.” (Citation and footnote omitted.)
McKissick, supra at 501.
Even construed in the estate’s favor, Eatmon’s testimony shows that she did not
see his truck until it was six feet or less from her. Eatmon testified that as a result of
Weeks’s truck coming towards her, she was forced to move to her right, thereby
hitting another car, which was forced to its right onto the sidewalk. The driver of the
3 second car testified that she did not see Weeks’s truck until after Eatmon had been hit
and that Eatmon could not have taken any action to avoid a collision: “I don’t see
where she could have done anything. She was in her lane.”
We are mindful that “questions of negligence and diligence and of cause and
proximate cause and whose negligence constituted the proximate cause of the
plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the
jury, and [that] the courts will decline to decide such questions unless reasonable
minds cannot differ as to the conclusions to be reached.” Hayes, supra at 79 (citation
and punctuation omitted). As we have often held, however, “‘negligence cannot be
presumed; on the contrary, performance of duty and freedom from negligence is
presumed.’” McKissick, supra at 501, quoting Johnson v. Ellis, 179 Ga. App. 343, 345
(346 SE2d 119) (1986).
“A defendant moving for summary judgment may point out that there is an
absence of evidence to support an element of the plaintiff’s case. The plaintiff cannot
then rest on her pleadings, but rather must point to specific evidence giving rise to a
triable issue on that element.” McKissick at 500, citing Lau’s, supra. Given the
undisputed evidence that Eatmon was driving within her lane on the proper side of the
road before she saw and was unable to avoid being hit by Weeks’s truck, the estate has
4 failed to create an issue of fact on the question whether Eatmon operated her car in a
negligent way. Because Eatmon has thus pointed to an absence of evidence as to
whether she breached her duty of ordinary care, the trial court erred when it denied her
motion for summary judgment. McKisson, supra at 501 (reversing denial of summary
judgment on motorcyclist’s claim that a truck driver proceeding in the opposite
direction failed to exercise ordinary care when the driver produced evidence that
motorcyclist had wobbled as she went into the curve where she struck the truck’s
trailer); McQuaig v. Tarrant, 269 Ga. App. 236, 239 (603 SE2d 751) (2004)
(affirming grant of summary judgment to defendant driver when “uncontradicted
evidence” showed that plaintiff “drove into [defendant’s] path” and when there was
“no evidence of anything [defendant] could have done to avoid the collision”);
Johnson, supra at 345 (affirming defendant driver’s grant of motion for directed
verdict in pedestrian’s negligence suit when there was no evidence that the driver
could have or should have seen the pedestrian walking into a collision path with the
driver’s car).
Case No. A13A0693
For its part, W eeks’s estate argues that uncontradicted evidence established that
Weeks suffered a stroke before the accident such that he cannot be held liable for it.
We agree.
5 “[W]here the driver of an automobile suffers an unforeseeable illness which
causes him to suddenly lose consciousness and control of the automobile, the driver’s
loss of control is not negligent[,] and he is not liable for any damage caused by the
out-of-control automobile.” Lewis v. Smith, 238 Ga. App. 6, 7 (517 SE2d 538) (1999).
See also OCGA § 1-3-3 (3) (including “sudden death” and “illness” as among those
“physical causes” producing accidents properly described as “acts of God”). “[T]o
Free access — add to your briefcase to read the full text and ask questions with AI
FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and BRANCH, J.
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. http://www.gaappeals.us/rules/
July 16, 2013
In the Court of Appeals of Georgia A13A0692, A13A0693. EATMON v. WEEKS et al.; and vice versa.
B RANCH, Judge.
On the early afternoon of June 29, 2010, Princess Eatmon was driving her car
in the left northbound lane of Dawson Road toward Albany when a pickup truck
traveling in the opposite direction and driven by Flaval Weeks veered across the
turning lane separating the road’s two northbound and two southbound lanes and hit
Eatmon’s car. Eatmon sustained a broken leg and other injuries. Weeks, who suffered
a head wound in the crash, could not tell a responding police officer anything about
the accident, was diagnosed as having suffered a stroke on the day in question, and
died a few weeks later. Eatmon brought a negligence action against Weeks’s estate,
which counterclaimed for the same. After the trial court denied cross-motions for
summary judgment, this Court granted both parties’ applications for interlocutory review. We reverse the trial court’s denial of summary judgment in both cases because
there is no evidence showing that either Eatmon or Weeks was responsible for the
accident.
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. . . . [T]he 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. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
(Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In
Eatmon’s appeal from the denial of her motion for summary judgment (Case No.
A13A0692), we view the evidence in the light most favorable to Weeks’s estate as the
non-movant; in the estate’s appeal from the denial of its motion for summary
judgment (Case No. A13A0693), we view the evidence in the light most favorable to
Eatmon as the non-movant.
2 Case No. A13A0692
Eatmon argues that the undisputed evidence shows that she had no opportunity
to avoid Weeks’s truck as it veered into her lane, and that the estate therefore cannot
show that she drove negligently in the moments before the accident. We agree.
Georgia law “imposes a duty on all drivers to exercise ordinary care with regard
to other drivers on or users of the highway.” McKissick v. Giroux, 272 Ga. App. 499,
501 (612 SE2d 827) (2005). Specifically, “[e]very driver is under a duty to keep a
proper lookout for potential hazards. A driver has no right to assume that the road
ahead of him is clear of traffic, and it is his duty to maintain a diligent outlook ahead.”
(Citation and punctuation omitted.) Hayes v. Crawford, 317 Ga. App. 75, 78 (730
SE2d 26) (2012). A driver breaches this duty, however, only where she “is reasonably
able to ascertain that she is about to collide with another driver and nevertheless takes
no reasonable evasive action where possible.” (Citation and footnote omitted.)
McKissick, supra at 501.
Even construed in the estate’s favor, Eatmon’s testimony shows that she did not
see his truck until it was six feet or less from her. Eatmon testified that as a result of
Weeks’s truck coming towards her, she was forced to move to her right, thereby
hitting another car, which was forced to its right onto the sidewalk. The driver of the
3 second car testified that she did not see Weeks’s truck until after Eatmon had been hit
and that Eatmon could not have taken any action to avoid a collision: “I don’t see
where she could have done anything. She was in her lane.”
We are mindful that “questions of negligence and diligence and of cause and
proximate cause and whose negligence constituted the proximate cause of the
plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the
jury, and [that] the courts will decline to decide such questions unless reasonable
minds cannot differ as to the conclusions to be reached.” Hayes, supra at 79 (citation
and punctuation omitted). As we have often held, however, “‘negligence cannot be
presumed; on the contrary, performance of duty and freedom from negligence is
presumed.’” McKissick, supra at 501, quoting Johnson v. Ellis, 179 Ga. App. 343, 345
(346 SE2d 119) (1986).
“A defendant moving for summary judgment may point out that there is an
absence of evidence to support an element of the plaintiff’s case. The plaintiff cannot
then rest on her pleadings, but rather must point to specific evidence giving rise to a
triable issue on that element.” McKissick at 500, citing Lau’s, supra. Given the
undisputed evidence that Eatmon was driving within her lane on the proper side of the
road before she saw and was unable to avoid being hit by Weeks’s truck, the estate has
4 failed to create an issue of fact on the question whether Eatmon operated her car in a
negligent way. Because Eatmon has thus pointed to an absence of evidence as to
whether she breached her duty of ordinary care, the trial court erred when it denied her
motion for summary judgment. McKisson, supra at 501 (reversing denial of summary
judgment on motorcyclist’s claim that a truck driver proceeding in the opposite
direction failed to exercise ordinary care when the driver produced evidence that
motorcyclist had wobbled as she went into the curve where she struck the truck’s
trailer); McQuaig v. Tarrant, 269 Ga. App. 236, 239 (603 SE2d 751) (2004)
(affirming grant of summary judgment to defendant driver when “uncontradicted
evidence” showed that plaintiff “drove into [defendant’s] path” and when there was
“no evidence of anything [defendant] could have done to avoid the collision”);
Johnson, supra at 345 (affirming defendant driver’s grant of motion for directed
verdict in pedestrian’s negligence suit when there was no evidence that the driver
could have or should have seen the pedestrian walking into a collision path with the
driver’s car).
Case No. A13A0693
For its part, W eeks’s estate argues that uncontradicted evidence established that
Weeks suffered a stroke before the accident such that he cannot be held liable for it.
We agree.
5 “[W]here the driver of an automobile suffers an unforeseeable illness which
causes him to suddenly lose consciousness and control of the automobile, the driver’s
loss of control is not negligent[,] and he is not liable for any damage caused by the
out-of-control automobile.” Lewis v. Smith, 238 Ga. App. 6, 7 (517 SE2d 538) (1999).
See also OCGA § 1-3-3 (3) (including “sudden death” and “illness” as among those
“physical causes” producing accidents properly described as “acts of God”). “[T]o
establish an act of God defense based on illness producing a loss of consciousness, the
driver must show that the loss of consciousness produced the accident without any
contributing negligence on the part of the driver.” Lewis, supra at 7. Because an act
of God is an affirmative defense, “a defendant moving for summary judgment on this
basis may not rely upon an absence of evidence in the record disproving the
affirmative defense but must carry the burden of affirmatively proving the defense.”
(Citation omitted.) Id.
The estate produced affidavits from the Albany police officer called to the scene
of the accident and the physician who treated her husband after the accident. Based
on his conversation with the decedent at the scene, the officer averred that Weeks
“was not conscious” at the time of the accident and could not say what had happened
before or during it; that W eeks’s car left no skid marks or other indication that he had
6 “applied the brakes or was otherwise in control of the vehicle”; and that Weeks had
“experienced a medical emergency before and during the accident” which “caused
him to lose control of his vehicle.” The physician, an emergency doctor at the hospital
to which W eeks was admitted immediately after the accident, averred that Weeks
complained of weakness in his left face and extremities, that he was diagnosed as
having suffered a stroke, and that he would have had no warning of the stroke prior
to its onset. The physician also averred that CT scan results showing no evidence of
a stroke on the day of the accident, but some evidence of the same a few days later,
were consistent with the original diagnosis because evidence of a stroke “do[es] not
normally appear on CT scans performed shortly after a stroke.” Finally, the physician
stated that it was “more probable than not” that Weeks suffered a stroke at the time
of the accident and that the stroke could have rendered him “unable to control a motor
vehicle.”
When the estate of a decedent has provided evidence that the decedent suffered
“a sudden and unforeseeable loss of consciousness just prior to the accident” giving
rise to a negligence action, the estate has established a prima facie case “in support of
his affirmative defense of an ‘act of God.’” Halligan v. Broun, 285 Ga. App. 226, 227
(645 SE2d 581) (2007). Under such circumstances, the non-movant must provide
7 “specific facts rebutting this affirmative defense and showing that there was a genuine
issue for trial.” Id.
Here, Eatmon has not refuted the estate’s evidence that Weeks suffered an
unforeseeable loss of consciousness just prior to losing control of his car, crossing the
highway, and striking Eatmon’s car. Although Eatmon argues that Weeks should have
foreseen that he might lose consciousness while driving because he felt “hot” the day
before, the record shows that he spent all that June day working on a construction site,
and Weeks’s doctor specifically testified that Weeks had no prior warning that he
might experience a stroke. Because no question of fact remains as to whether W eeks’s
loss of consciousness was reasonably foreseeable, the trial court erred when it denied
the estate’s motion for summary judgment. Lewis, supra at 9-10 (affirming grant of
summary judgment when plaintiff failed to produce any specific facts rebutting
defendant’s affirmative defense that he unforeseeably lost consciousness “so suddenly
that he could not reasonably have taken any action to avoid the accident”); Halligan,
supra at 227 (affirming grant of summary judgment to decedent’s estate when plaintiff
had failed to create a genuine issue concerning decedent’s loss of consciousness
before accident giving rise to plaintiff’s suit).
Judgment reversed in both cases. Phipps, C. J., concurs. Ellington, P. J.,
concurs in judgment only.