Swinney v. Schneider National Carriers, Inc., et al
Filing
124
ORDER and OPINION granting in part and denying in part 111 Defendants' Renewed Motion for Summary Judgment 111 and sustains defendants' Objection to the Affidavit of Harry Edmondson 118 . Signed by Judge Julie E. Carnes on 11/7/11. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DEBORAH SWINNEY, as surviving
spouse and administrator of the
estate of MICHAEL ANDRE
SWINNEY,
Plaintiff,
CIVIL ACTION FILE NO:
1:09-CV-0585-JEC
v.
SCHNEIDER NATIONAL CARRIERS,
INC., and ALLEN DOUGLAS
LEDFORD,
Defendants.
ORDER and OPINION
This case is presently before the Court on defendants’ Renewed
Motion for Summary Judgment [111] and defendants’ Objection to the
Affidavit of Harry Edmondson [118].
The Court has reviewed the
record and the arguments of the parties and, for the reasons set out
below, concludes that defendants’ Renewed Motion for Summary Judgment
[111] should be GRANTED in part and DENIED in part and defendants’
Objection to the Affidavit of Harry Edmundson [118] should be
SUSTAINED.
AO 72A
(Rev.8/82)
BACKGROUND
This action arises from an accident that occurred on I-285 in
June of 2008.
Plaintiff is the surviving spouse of Michael Swinney,
who died in the accident.
Removal [1] as Ex. A.)
(Compl. at ¶¶ 1-2, attached to Notice of
Defendant Allen Ledford allegedly caused the
accident in the course of his employment as a truck driver for
defendant Schneider National Carriers, Inc. (“Schneider”).
¶¶ 3-4.)
(Id. at
The case was removed from Fulton County Superior Court on
the grounds of diversity jurisdiction.
(Notice of Removal [1].)
Many of the facts surrounding the accident are in dispute.
Construing the evidence in favor of plaintiff, Swinney’s car broke
down in the far right travel lane of I-285 East sometime before 4:00
a.m. on the morning of June 21, 2008.
(See Pl.’s Statement of
Material Facts (“PSMF”) [114] at ¶¶ 2, 12 and Stanley Dep. [111] at
22-39.)
Although the area was poorly lit, Swinney’s headlights were
on and his car was visible for at least 250 feet.
(PSMF [114] at ¶¶
3, 14-16.)
The accident occurred when Ledford’s Schneider truck collided
with Swinney’s stopped car.
(Defs.’ Statement of Material Facts
(“DSMF”) [111] at ¶ 10 and Pl.’s Initial Disclosures [65] at 5.)
As
a result of the collision, Swinney was struck either by Ledford’s
truck or by his own car, which had been set in motion by Ledford’s
truck.
(Harper
Dep.
[111]
at
30.)
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Following
the
collision,
Swinney’s body was thrown onto the roadway and run over by several
other vehicles.
(Stanley Dep. [111] at 42.)
The medical examiner
concluded that Swinney died on account of being “struck multiple
times by multiple objects.”
(Smith Dep. [111] at 17-18.)
During the subsequent investigation, Ledford initially told the
police that Swinney’s car “c[ame] around him on the right shoulder”
and “jump[ed] out in front of him, causing him to hit the vehicle.”
(Stanley Dep. [111] at Ex. 1.) After learning that Swinney’s car was
in fact stopped at the time of the collision, Ledford changed his
story.
(Ledford Dep. [116] at 73-75.)
At his deposition, Ledford
explained that he didn’t see Swinney’s car because he was looking in
his rearview mirror.
(Id. at 71-76.)
Witness LeeMurray White, who
had been driving behind Ledford for a few miles, offered another
explanation.
(PSMF [114] at ¶ 25.)
He testified that Ledford had
been weaving among lanes just before the accident, as if he was
dozing off.
(Id.)
In addition to Ledford’s culpability for the accident, a key
point of dispute between the parties is where Swinney was located at
the time of the collision.
Plaintiff, in reliance upon her expert
Harry Edmondson, contends that Swinney was standing in front of the
car when it was struck by Ledford’s truck.
8.)
(Pl.’s Resp. [113] at 7-
Based on the damage to Swinney’s car, and the fact that the car
did not hit any other object, Edmondson opines that “more likely than
3
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not, Mr. Swinney was standing in front of the [car] and . . . it was
his body that caused the damage to the [car].” (Edmondson Aff. [113]
at ¶¶ 16-17, 19.)
More specifically, Edmondson believes that upon
its impact with Ledford’s truck, the car was pushed into Swinney’s
body, forcing the hood of the car inward and causing Swinney to slam
into
the
windshield.
windshield,
Edmondson
(Id.
at
¶¶
theorizes
18,20.)
that
Swinney
After
“either
flipped onto the roadway or into [Ledford’s truck].”
Unfortunately,
corroborate
none
Edmondson’s
of
the
hitting
rolled
or
(Id. at ¶ 20.)
investigating
officers
(DSMF
at
opinions.
the
[111]
¶
could
16.)
Investigating Officer Harper stated that he believes the right side
of Ledford’s truck ran over Swinney’s body and “twisted him up pretty
badly.”
(Harper Dep. [111] at 30.)
However, even the Georgia State
Patrol’s special crash reconstruction team could not conclusively
determine where Swinney was located when the accident occurred or
whether he died as a result of an impact with his own car, Ledford’s
truck, or another vehicle.
(Barnes Dep. [116] at 16-18 and Smith
Dep. [111] at 17-18.)
An autopsy revealed the presence of both alcohol and cocaine in
Swinney’s system on the night of the accident.
32-34.)
Swinney’s blood alcohol concentration was 0.12 grams, above
the maximum legal level of .08 grams.
Disclosures
[45]
at
3.)
(Defs.’ Supplemental Initial
Swinney’s
4
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(Rev.8/82)
(DSMF [111] at ¶¶ 9,
wife
later
informed
the
investigating officers that Swinney had been at a party the previous
night and was running late for work on the morning of the accident.
(Id.)
Nevertheless, there is no evidence that the alcohol or drugs
in Swinney’s system contributed to the accident.
(PSMF [114] at ¶¶
8-9.)
Plaintiff
alleges
Swinney’s death.
that
Ledford’s
negligent
(Compl. [1] at ¶¶ 7-8.)
driving
caused
In her complaint,
plaintiff asserts a negligence claim against both Ledford and his
employer, Schneider, for Swinney’s wrongful death.
(Id.)
Assuming
that she prevails on her negligence claim, plaintiff seeks damages on
behalf of herself, for the value of Swinney’s life, and on behalf of
Swinney, for pain and suffering and pre-impact fright and shock.
(Id. at 3.)
Defendants have filed an objection to the expert opinion of
Harry Edmondson and a renewed motion for summary judgment.1
Obj. [118] and Renewed Mot. for Summ. J. [111].)
(Defs.’
Assuming that
Edmondson’s testimony is excluded, defendants argue that summary
judgment should be granted because there is no evidence to show
proximate
cause,
negligence claim.
which
is
an
essential
element
of
plaintiff’s
(Defs.’ Br. in Supp. of Summ. J. (“Defs.’ Br.”)
1
The Court denied defendants’ initial motion for summary
judgment without prejudice after both sides filed motions for leave
to supplement the record with additional argument and evidence.
(Order [110] at 1.)
5
AO 72A
(Rev.8/82)
[111] at 12-16.)
In addition, defendants contend that they are
entitled to partial summary judgment on the issues of (1) pre-impact
damages for Swinney’s fright, shock, pain and suffering and (2)
Swinney’s negligence per se.
(Id. at 16-22.)
DISCUSSION
I.
Defendants’ Objection To Edmondson’s Testimony
Defendants argue that Edmondson’s opinion should be excluded
under Rule 702 of the Federal Rules of Evidence.
[118].)
(Defs.’ Obj.
Rule 702 provides that:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge,
skill,
experience,
training,
or
education, may testify thereto in the form of an
opinion or otherwise.
FED. R. EVID. 702.
admissible if:
Pursuant to Rule 702, expert testimony is only
(1) the expert is qualified to testify competently,
(2) his methodology is reliable, and (3) the testimony will assist
the trier of fact to understand the evidence or determine a fact in
issue in the case.
Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309
(11th Cir. 1999).
The proponent of expert testimony has the burden of showing that
the testimony complies with Rule 702.
Cook ex rel. Estate of Tessier
v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1108 (11th Cir.
2005).
To
meet
that
burden,
plaintiff
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must
demonstrate
that
Edmondson’s proffered opinion satisfies each of the above prongs.
Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1194 (11th
Cir.
2010).
Assuming
the
basic
requirements
of
Rule
702
are
satisfied, “it is not the role of the district court to make ultimate
conclusions as to the persuasiveness” of plaintiff’s testimony.
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341
(11th
Cir.
2003).
Rather,
“‘[v]igorous
cross-examination,
presentation of contrary evidence, and careful instruction on the
burden
of
proof
are
the
traditional
and
appropriate
attacking shaky but admissible’” expert testimony.
A.
As
means
of
Edmondson
is
Id.
Edmondson’s Qualifications
an
initial
matter,
the
Court
finds
that
qualified by his education and experience to render an expert opinion
in this case.
Georgia Tech.
Edmondson has a degree in mechanical engineering from
(Edmondson Resume [65] at 14.)
He has worked as a
professional engineer for forty years and has extensive experience in
the fields of forensic engineering and accident reconstruction.
(Id.)
During his career, Edmondson has taken numerous courses in
accident reconstruction and conducted multiple computerized crash
simulations.
(Pl.’s Resp. to Defs.’ Obj. [120] at 2 and Edmondson
Aff. [113] at ¶¶ 3-4.)
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B.
Reliability
Nevertheless, the Court agrees with defendants that Edmondson’s
proffered opinions are unreliable.
In ascertaining the reliability
of an expert’s opinion, it is the district court’s role to act as a
“gatekeeper[]” to ensure that groundless or speculative testimony is
not admitted.
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253,
1256 (11th Cir. 2002). The Supreme Court has identified several nonexclusive factors as relevant to the inquiry, including: (1) whether
the expert’s methodology can be and has been tested, (2) whether the
methodology has been subjected to peer review and publication, (3)
the known or potential rate of error of the particular scientific
technique, and (4) whether the expert’s technique is generally
accepted in the scientific community. Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 593-94 (1993).
See also Quiet Tech., 326 F.3d at
1341 (applying the Daubert factors).
In this case, there is no rational basis upon which the Court
can
apply
the
above
factors
because
there
methodology underlying Edmondson’s opinions.
Edmondson
conclusively
avers
that
his
is
no
discernible
In his affidavit,
opinions
are
based
on
unspecified “actual testing” and his review of scene photographs,
video films, and depositions.
(Edmondson Aff. [113] at ¶ 5.)
But it
is not clear from the affidavit which, if any, of those aids were
employed in forming his opinions.
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(Rev.8/82)
(Id. at ¶¶ 16-20.)
Indeed,
Edmondson’s affidavit is little more than a summary of what he
presumes to have happened on the morning of the accident.
(Id.)
As
such, the affidavit clearly is insufficient to meet plaintiff’s
burden under Rule 702.
See Cook, 402 F.3d at 1113 (“Presenting a
summary of a proffered expert’s testimony in the form of conclusory
statements devoid of factual or analytical support is simply not
enough.”).
Neither does Edmondson’s engineering report supply the necessary
details.
(Engineering
Report
[65].)
Based
on
the
report,
Edmondson’s methodology appears to have consisted entirely of looking
at Swinney’s car and generally describing the damage to the car that
likely resulted from the accident.
(Id.)
There are no facts in the
report to suggest that Edmondson performed any test or reviewed any
objective data to verify that the damage to the car was caused by its
collision with Swinney, or even that the damage was consistent with
an impact on a human body.
(Id.)
evidence
Edmondson’s
or
explanation,
In the absence of any additional
report
does
not
reliably
establish Swinney’s location at the time of the accident or the
immediate cause of his death.
In response to defendants’ objection, plaintiff suggests that
Edmondson’s
general
experience
in
the
field
of
accident
reconstruction renders his opinion reliable.
(Pl.’s Resp. to Defs.’
Obj.
does
[120]
at
8-9.)
However,
plaintiff
9
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(Rev.8/82)
not
explain
why
Edmondson’s experience is a sufficient basis for his opinion, or how
his experience has been reliably applied to the facts of this
particular case.
See FED. R. EVID. 702, Advisory Committee Notes
(2000)(“If the witness is relying solely or primarily on experience,
then [he] must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion,
and how that experience is reliably applied to the facts.
The trial
court’s gatekeeping function requires more than simply ‘taking the
expert’s word for it.’”).
Nor does Edmondson provide any additional
details as to how his general experience in the field of accident
reconstruction supports his opinions in this case.
(Edmondson Aff.
[113] and Engineering Report [65].)
Alternatively, plaintiff attempts to bypass the reliability
question by suggesting that defendants are precluded from objecting
to Edmondson’s opinion because they failed to depose him during
discovery.
(Pl.’s Resp. to Obj. [120] at 10-11.)
meritless.
All
defendants
would
of
the
have
evidence
deposed
in
the
Edmondson
This argument is
record
if
they
suggests
that
had
been
not
frustrated by plaintiff in their attempts to schedule the deposition.
Plaintiff
cancelled
two
scheduled
depositions
for
Edmondson
in
December, 2009, and subsequently failed to provide an alternative
date.
(Dep. Notices [71] and [81] and Dixon Aff. [121] at ¶¶ 3-4.)
Defendants finally abandoned their effort to depose Edmondson after
10
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plaintiff indicated in the initial summary judgment briefing that she
did not intend to rely on Edmondson’s opinion.
(Dixon Aff. at ¶ 5.)
In any case, even assuming that defendants were somehow derelict
in their effort to depose Edmondson, their failure does not relieve
plaintiff
of
her
burden
of
establishing
Edmondson’s opinions under Rule 702.
the
reliability
of
See Hendrix, 609 F.3d at 1194
(the “proponent of . . . expert testimony bears the burden of
showing, by a preponderance of the evidence, that the testimony
satisfies each prong” of Rule 702) and Cook, 402 F.3d at 1108
(holding same).
Based on the materials that are in the record,
plaintiff clearly has failed to meet her burden as to reliability.
Accordingly, defendants’ objection [118] is SUSTAINED.
Edmondson’s
testimony will not be admitted into evidence in this case.
II.
Defendants’ Motion For Summary Judgment
A.
Standard
Summary
judgment
is
appropriate
when
the
pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law. FED. R. CIV. P.
56(c).
A fact’s materiality is determined by the controlling
substantive law.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
An issue is genuine when the evidence is such that a
reasonable jury could return a verdict for the nonmovant.
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Id.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits.
Instead, Rule 56 mandates the entry of summary judgment
against a party who fails to make a showing sufficient to establish
the existence of every element essential to that party’s case on
which that party will bear the burden of proof at trial.
Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); FED. R. CIV. P. 56(c).
In
such a situation, there can be “no genuine issue as to any material
fact,” as “a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other
facts immaterial.”
Celotex Corp., 477 U.S. at 323 (quoting FED. R.
CIV. P. 56(c)) (internal quotation marks omitted).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by merely “‘showing’--that is, pointing out to the
district court–-that there is an absence of evidence to support the
nonmoving party’s case.”
Id. at 325.
After the movant has carried
his burden, the nonmoving party is then required to “go beyond the
pleadings” and present competent evidence designating “specific facts
showing that there is a genuine issue for trial.”
Id. at 324
(quoting FED. R. CIV. P. 56(e)) (internal quotation marks omitted).
While the court is to view all evidence and factual inferences in a
12
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light most favorable to the nonmoving party, Samples, 846 F.2d at
1330, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue
of material fact.”
B.
Anderson, 477 U.S. at 247-48.
Plaintiff’s Negligence Claim
In order to prevail on her negligence claim, plaintiff must
show:
(1) that defendants had a legal duty to conform to a standard
of conduct raised by law for the protection of others against
unreasonable risks of harm, (2) a breach of that standard, and (3) a
causal connection between the breach and the resulting loss or damage
to plaintiff.
App.
321,
325
Shortnacy v. N. Atlanta Internal Med., P.C., 252 Ga.
(2001).
Causation,
and
the
related
issues
of
assumption of risk and comparative negligence, are generally matters
for the jury to determine, rather than the court. Atlanta Affordable
Hous. Fund Ltd. P’ship v. Brown, 253 Ga. App. 286, 288 (2002).
1.
Elements I & II:
Duty and Breach
A driver has a legal duty to exercise reasonable caution while
driving, which includes maintaining a diligent lookout to ensure that
the road ahead of him is clear of traffic and other obstructions.
Brown v. Shiver, 183 Ga. App. 207, 208 (1987).
Plaintiff has
presented evidence that Ledford breached this duty by (1) swerving
and possibly dozing while driving and/or (2) looking in his rearview
13
AO 72A
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mirror rather than at the road in front of him at the time of the
accident.
question
Defendants do not dispute that this evidence creates a
of
fact
negligence claim.
as
to
the
first
two
elements
of
plaintiff’s
See Banks v. Payne, 213 Ga. App. 783, 784 (1994)
(“the question as to the exercise of ordinary care is [generally] for
the jury”).
2.
Element III:
Causation
The Court likewise finds sufficient evidence in the record to
suggest
a
Swinney’s
causal
death,
connection
even
in
the
between
Ledford’s
absence
of
negligence
Edmondson’s
and
opinion.
Although the investigation revealed no blood or tissue on Ledford’s
truck, part of Swinney’s clothing was found lying near the truck
where it came to rest approximately 618 feet away from the site of
its initial impact with Swinney’s car.
(Stanley Dep. [111] at 31.)
Officer Harper concluded from this fact that Ledford’s truck likely
struck Swinney’s body.
(Harper Dep. [111] at 54-57.)
A reasonable
jury might agree with this conclusion, particularly as defendants
offer no credible alternative explanation for the presence of the
clothing near Ledford’s truck.
Furthermore, there is undisputed evidence that White, who was
driving directly behind Ledford, hit Swinney’s body.
¶¶ 38-40.)
(PSMF [114] at
Based on White’s location, a reasonable jury might infer
that Ledford’s truck must have previously made contact with Swinney’s
14
AO 72A
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body.
Again, defendants do not provide a persuasive explanation as
to how Ledford’s truck would have missed Swinney’s body when White,
who was driving directly behind Ledford, hit it.2
Given the evidence in the record, the two cases cited by
defendants in support of summary judgment are inapposite.
See Berry
v. Hamilton, 246 Ga. App. 608 (2000) and Dawkins v. Doe, 263 Ga. App.
737 (2003).
In Berry and Dawkins, the courts granted summary
judgment in wrongful death traffic collision cases because there was
no evidence of negligence on the part of the motorists involved and
barely enough evidence to raise a conjecture as to how the decedents
died.
Berry, 246 Ga. App. at 609 and Dawkins, 263 Ga. App. at 739.
In this case, defendants concede that there is an issue of fact as to
Ledford’s negligence, and there is sufficient evidence in the record
to support a reasonable inference that Swinney died either as a
result of being hit or thrown onto the roadway by Ledford’s truck.
(See PSMF [114] at ¶¶ 21-23, 30-31, 38-40 and Harper Dep. [111] at
30.)
As indicated above, questions regarding negligence in general,
and causation in particular, must be resolved by the jury except in
2
There is no evidence whatsoever to support defendants’ theory
that Swinney was hit and killed prior to the accident involving
Ledford’s truck. See Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005)(speculative theories are not relevant to summary
judgment).
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“palpable, clear, and indisputable cases.” Atlanta Affordable Hous.,
253 Ga. App. at 288.
See also Ontario Sewing Mach. Co., Ltd. v.
Smith, 275 Ga. 683, 687 (2002)(“it is axiomatic that questions
regarding proximate cause are ‘undeniably a jury question’ and may
only be determined by the courts ‘in plain and undisputed cases.’”)
(quoting Atlanta Obstetrics & Gynecology Grp., P.A. v. Coleman, 260
Ga. 569, 570 (1990)).
This case does not fall into that category.
Accordingly, the Court DENIES defendants’ motion for summary judgment
on plaintiff’s negligence claim.
C.
Damages For Swinney’s Pain And Suffering And Pre-Impact
Fright And Shock
In addition to their causation argument, defendants contend that
they are entitled to partial summary judgment on plaintiff’s claim
for damages on behalf of Swinney as a result of his pain and
suffering and pre-impact fright and shock.
17.)
(Defs.’ Br. [111] at 16-
According to defendants, such damages are unavailable because
there is no evidence that Swinney was either aware of the impending
collision or alive when the accident occurred. (Id.) Plaintiff does
not respond to defendants’ argument on this point.
summary judgment is warranted as to these damages.
Accordingly,
See Burnette v.
Northside Hosp., 342 F. Supp. 2d 1128, 1140 (N.D. Ga. 2004)(Duffey,
J.)(“Failure to respond to the opposing party’s summary judgment
arguments regarding a claim constitutes an abandonment of that claim
16
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and warrants the entry of summary judgment for the opposing party.”)
and LR 7.1(B), NDGa. (failure to respond to a motion indicates lack
of opposition).
Moreover, the Court finds that defendants’ argument as to this
particular
category
of
damages
is
meritorious.
Plaintiff
has
presented no evidence that Swinney was aware of the impending crash
or that he did not die instantly.
See Byrd v. Wal-Mart Transp., LLC,
2009 WL 3429562, at *5 (S.D. Ga. 2009) (Edenfield, J.) (“Georgia law
requires some evidence that the decedent[] actually anticipated the
collision before a recovery for pre-impact pain and suffering is
allowed.”). For this additional reason, the Court GRANTS defendants’
motion for partial summary judgment as to plaintiff’s claim for
damages arising from Swinney’s pain and suffering and pre-impact
fright and shock.
D.
Negligence Per Se
Defendants also seek partial summary judgment on their defense
of comparative negligence.
(Defs.’ Br. [111] at 17-22.)
Defendants
point out that Swinney’s conduct on the morning of the accident--in
particular
his
drug
statutes.
(Id.)
and
alcohol
use--violated
several
Georgia
As a result, defendants argue that they are
entitled to a ruling that Swinney is guilty of negligence per se.
(Id.)
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1.
Applicable Standard
The violation of a statute, ordinance or mandatory regulation
that imposes a legal duty for the protection of others constitutes
negligence per se.
349-50 (2002).
Hubbard v. Dep’t of Transp., 256 Ga. App. 342,
Assuming there is a statutory violation, negligence
per se arises when (1) a person injured as the result of the
violation falls within the class of persons the statute was intended
to protect, and (2) the harm complained of is the harm the statute
was intended to guard against.
Id.
In addition, in order to prevail
on a claim or defense of negligence per se, there must be a causal
connection between the negligence and the injury. Id. Even assuming
that an injured plaintiff or a decedent is guilty of negligence per
se, assessing the level of comparative negligence remains an issue
for the jury.
2.
Hill v. Copeland, 148 Ga. App. 232, 233 (1978).
O.C.G.A. § 40-6-391
In support of their negligence per se argument, defendants first
contend that Swinney’s intoxication and drug use on the morning of
the accident violated O.C.G.A. § 40-6-391.
18.)
(Defs.’ Br. [111] at 17-
That statute provides that:
a person shall not drive or be in actual physical control
of any moving vehicle while . . . [t]he person’s alcohol
concentration is [].08 grams or more at any time within
three hours after such driving or being in actual physical
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control from alcohol consumed before such driving or being
in actual physical control ended.
O.C.G.A. § 40-6-391(a)(5).
It further prohibits a person from
driving under the influence of “any amount of . . . a controlled
substance.”
O.C.G.A. § 40-6-391(a)(6).
The purpose of the above statute is to protect drivers and
pedestrians from motorists who are incapacitated by drugs or alcohol.
Love v. State, 271 Ga. 398, 401-02 (1999).
The Georgia legislature
has determined that any person who drives in violation of the statute
“constitutes a direct and immediate threat to the welfare and safety
of the general public.”
O.C.G.A. § 40-5-55.
Moreover,
the
legislature has concluded that “there is no level of illicit drug use
which can be acceptably combined with driving a vehicle” because “the
established potential for lethal consequences is too great.”
Love,
271 Ga. at 402.
Plaintiff does not contest the purpose of the statute, or that
its violation would amount to negligence per se.
Rather, plaintiff
argues that O.C.G.A. § 40-6-391 is not applicable because there is no
evidence that Swinney was “driv[ing] or . . . in actual physical
control of a[] moving vehicle” when the accident occurred.
§ 40-6-391(a).
O.C.G.A.
See also Carr v. State, 169 Ga. App. 679, 680 (1984)
(O.C.G.A. § 40-6-391(a) is only violated when a party is in control
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of a moving vehicle).
The Court agrees.
Although the parties
dispute Swinney’s exact location, they both contend that he was
outside of his vehicle at the time of the accident.
¶¶ 18-19 and PSMF [114] at ¶ 19.)
(DSMF [111] at
Thus, under any version of the
facts, Swinney could not have been driving or in “actual control” of
a moving vehicle when the accident occurred.
Accordingly, the Court
DENIES defendants’ motion for summary judgment as to negligence per
se under O.C.G.A. § 40-6-391.
3.
O.C.G.A. §§ 40-6-202 and 40-6-203(a)(1)(I)
Defendants next contend that Swinney was negligent per se for
parking his vehicle in the right travel lane of I-285 in violation of
O.C.G.A. §§ 40-6-202 and 40-6-203.
(Defs.’ Br. [111] at 18.)
Sections 40-6-202 and 40-6-203 generally prohibit parking or leaving
a standing vehicle on a roadway or highway. O.C.G.A. §§ 40-6-202 and
40-6-203(a)(1)(I).
However, both statutes are modified by O.C.G.A.
§ 40-6-204, which limits their application to situations where the
vehicle is not disabled “in such a manner and to such extent that it
is impossible to avoid stopping and temporarily leaving such disabled
vehicle in such position.”
O.C.G.A. § 40-6-204.
In this case, there is sufficient evidence to find that the
qualification in O.C.G.A. § 40-6-204 is controlling.
Construing the
facts most favorably to plaintiff, Swinney’s car broke down in the
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far right travel lane of I-285 and he was unable to move the car
prior to the accident.
(PSMF [114] at ¶¶ 2-4, 12.)
Under the
circumstances, it is for the jury to decide whether Swinney’s car was
disabled
“in
such
a
manner
and
to
such
extent
that
it
[wa]s
impossible to avoid stopping and temporarily leaving” the car in the
right travel lane of I-285.
O.C.G.A. § 40-6-204.
See also Smith v.
Nelson, 123 Ga. App. 712, 718 (1971)(finding a jury question as to
whether a disabled truck could have been driven off the road under
the circumstances).
Accordingly, the Court DENIES summary judgment
on defendants’ negligence per se claims under O.C.G.A. §§ 40-6-202
and 40-6-203(a)(1)(I).
4.
O.C.G.A. §§ 40-6-95-95, 40-6-96
Finally, defendants contend that Swinney was negligent per se
for violating two statutes that govern the conduct of pedestrians on
the roadways:
40-6-95
O.C.G.A. § 40-6-95 and O.C.G.A. § 40-6-96.
restricts
a
person
“who
is
under
the
Section
influence
of
intoxicating liquor or any drug to a degree which renders him a
hazard” from walking upon any roadway or shoulder.
95.
O.C.G.A. § 40-6-
Section 40-6-96 requires that “any pedestrian standing or
striding along and upon a highway shall stand or stride only on the
shoulder, as far as practicable from the edge of the roadway.”
O.C.G.A. § 40-6-96(c).
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The record does not support summary judgment on negligence per
se under either statute. Defendants have failed to show, as a matter
of law, that the alcohol and cocaine in Swinney’s system rendered him
a “hazard” in violation of Section 40-6-95.
Moreover, there is no
evidence to suggest that Swinney wandered onto the highway in
violation of Section 40-6-96. Based on the available evidence, it is
more likely that Swinney’s body was thrown onto the highway by
Ledford’s truck or another car. In addition, defendants have made no
attempt
whatsoever
to
show
that
Swinney
was
not
“as
far
as
practicable from the edge of the roadway” when he was struck and
flung onto the highway.
Accordingly, the Court DENIES summary
judgment on defendants’ negligence per se claims under O.C.G.A. §§
40-6-95-95 and 40-6-96.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES
in part defendants’ Renewed Motion for Summary Judgment [111] and
SUSTAINS defendants’ Objection to the Affidavit of Harry Edmondson
[118].
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So ORDERED this 7th day of November, 2011.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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