Estate of Jesus Serrano v. New Prime, Inc.
Filing
34
ORDER AND OPINION denying 22 Defendant's Motion for Summary Judgment. Signed by Judge Julie E. Carnes on 6/12/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ESTATE OF JESUS SERRANO,
Plaintiff,
CIVIL ACTION NO.
v.
1:11-cv-01250-JEC
NEW PRIME, INC., d/b/a/
PRIME, INC.,
Defendants.
OPINION & ORDER
This case is before the Court on defendant’s Motion for Summary
Judgment [22].
The Court has reviewed the record and the arguments
of the parties and, for the reasons set out below, concludes that
defendant’s Motion for Summary Judgment [22] should be DENIED.
BACKGROUND
Plaintiff represents the estate of Jesus Serrano, who died on
the early morning of August 22, 2010 while walking on I-75 North near
Cartersville, Georgia.
(Compl. [1].)
Serrano spent the evening
before the accident drinking beer with his friends Andres Cruz and
Richard Spooner at a car shop located directly adjacent to I-75.
(Cruz Dep. [24] at 10-13.)
He left the shop some time between 1:00
and 3:00 in the morning, having consumed between 10 and 15 beers.
(Id. at 13, 16-18 and Spooner Dep. [25] at 8, 10-11.)
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At the time,
Serrano appeared to be intoxicated and was slurring his words. (Cruz
Dep. at 16-18 and Spooner Dep. at 8, 11.)
No one knows where Serrano
was going or what he intended to do when he left the shop, but he
appears to have spent the next several hours walking aimlessly around
and on I-75.
(Spooner Dep. at 11 and Alberto Jose Serrano Vera Dep.
[28] at 21.)
Around 5:45 that morning, Larry Hendrix was traveling on I-75
North near Cartersville when his vehicle collided with Serrano.
(Hendrix Dep. [23] at 14-15.)
On this part of I-75, the interstate
had three lanes and a shoulder on the right side.
21.)
(Id. at 12-13,
Hendrix was driving approximately 65 miles per hour in the far
right lane when he hit Serrano.
(Id. at 12-13, 15)
occurred in the middle of the far right lane.
The collision
(Id. at 14-15.)
Although Hendrix pressed his brakes the moment he saw Serrano, it was
too late to avoid hitting him.
(Id. at 15.)
Following the collision, Hendrix pulled to the right shoulder of
the interstate and activated his hazard lights.
at 16.)
(Hendrix Dep. [23]
He got a flashlight and a cell phone from his car and rushed
back to the site of the collision, where he saw Serrano lying in the
center lane of I-75 moaning and gesturing with his arm.
17, 44.)
(Id. at 16-
Hendrix grabbed Serrano’s hand and tried to drag him out of
the road and onto the shoulder.
(Id. at 17, 23.)
While Hendrix was
struggling with Serrano, a truck approached that appeared to be
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heading right for Hendrix and Serrano. (Id. at 17.) Hendrix dropped
Serrano’s hand and used his flashlight to signal the truck to avoid
the center lane.
(Id. at 17.)
His effort was successful, and the
truck moved into the left lane and continued past without harming
Hendrix or Serrano.
(Hendrix Dep. [23] at 17.)
Shortly thereafter, Hendrix was again interrupted in his effort
to move Serrano when a truck operated by defendant (the “Prime
truck”) approached.
(Id. at 18.)
Hendrix attempted to use his
flashlight to divert the oncoming Prime truck, but the truck did not
move into the left lane.
(Id. at 18.)
Ultimately Hendrix was forced
to abandon Serrano and flee to the shoulder, leaving Serrano near the
divide between the middle and right hand lanes.
(Id. at 23-24.)
Despite his evasive maneuver, the Prime truck hit Hendrix, knocking
him into a grassy area near the shoulder and seriously injuring both
of his knees.
(Id. at 18, 27, 31.)
Serrano showed no further signs
of life after the Prime truck passed.
(Hendrix Dep. [23] at 18.)
Plaintiff has brought this action to recover for Serrano’s
alleged wrongful death.
(Compl. [1] at ¶¶ 1, 3.)
The complaint
asserts a claim for common law negligence and a claim for negligence
per se under O.C.G.A. § 40-6-93, which is a statute defining the duty
of care that drivers owe to pedestrians on the highway.
13-23.)
Defendant has filed a motion for summary judgment on both
claims, which is now before the Court.
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(Id. at ¶¶
(Def.’s Mot. for Summ. J.
[22].)
DISCUSSION
I.
SUMMARY JUDGMENT 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 judgment as a matter of law.
56(c).
A fact’s materiality is determined by the controlling
substantive law.
(1986).
FED. R. CIV. P.
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.
249-50.
Id. at
An issue is not genuine if it is unsupported by evidence, or
if it is supported by evidence that is “merely colorable” or “not
significantly probative.”
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 of the Federal Rules of Civil Procedure
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.
322 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
In such a situation, there can be no genuine issue as to
any material fact, as a complete failure of proof concerning an
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essential element of the non-moving party’s case necessarily renders
all other facts immaterial.
Id. at 322-23 (quoting FED. R. CIV. P.
56(c)).
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
non[-]moving party’s case.”
Id. at 325.
After the movant has
carried his burden, the non-moving 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.
While the court is to view all evidence and factual
inferences in a light most favorable to the non-moving party, “the
mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary
judgment.
Anderson, 477 U.S. at 247-48 (1986).
The requirement is
that there be “no genuine issue of material fact.”
II.
Id.
COMMON LAW NEGLIGENCE
Georgia law applies to this diversity action.
See Grupo
Televisa, S.A. v. Telemundo Commc’n Grp., Inc., 485 F.3d 1233, 1240
(11th Cir. 2007)(a federal court sitting in diversity applies the
conflicts rules of its forum state to determine which state law
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applies) and Bagnell v. Ford Motor Co., 297 Ga. App. 835, 836
(2009)(“Under lex loci delicti, tort cases are governed by the
substantive law of the state where the tort or wrong occurred”).
Under Georgia law, the essential elements of a claim for common law
negligence are:
(1) the existence of a legal duty, (2) breach of
that duty, (3) a causal connection between defendant’s conduct and
plaintiff’s
injury,
and
(4)
damages.
Seymour
Elec.
&
Air
Conditioning Serv., Inc. v. Statom, 309 Ga. App. 677, 679 (2011).
Defendant does not dispute that its driver owed a duty of ordinary
care to Serrano, whether under the common law duty of all drivers to
other users of the road or under O.C.G.A. § 40-6-93.
[33] at 6.)
(Def.’s Reply
However, defendant argues that there is insufficient
evidence of either a breach of duty or of causation to send the case
to a jury.
(Def.’s Br. [22] at 1-2.)
Defendant further contends
that the avoidable consequences doctrine shields it from liability.
(Id. at 2.)
A.
Evidence of a Breach
To survive defendant’s summary judgment motion, plaintiff must
put forward some evidence of defendant’s negligence.
See Hunsucker
v. Belford, 304 Ga. App. 200, 202 (2010) (“‘Negligence is not to be
presumed, but is a matter for affirmative proof.’”)(quoting Purvis v.
Steve, 284 Ga. App. 116, 118 (2007)).
Contrary to defendant’s
argument, plaintiff in this case has satisfied that requirement.
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Hendrix’s testimony shows that he successfully diverted a prior
truck, supporting an inference that the Prime driver could and should
have similarly avoided hitting Hendrix and Serrano.
[23] at 17.)
(Hendrix Dep.
Additionally, it is undisputed that Hendrix’s car was
parked on the shoulder of the road with its hazard lights on and that
Hendrix flashed a light in the direction of the Prime truck, both of
which should have warned the Prime driver that a dangerous condition
existed on the road.
(Id. at 16, 25.)
That the Prime truck
ultimately collided not only with Hendrix, but also with Hendrix’s
stationary car, suggests the driver may have been negligent in its
response to the warning.
(Id. at 28.)
To be sure, there also is evidence that the Prime driver was not
negligent.
The road was dark at the time of the collision, which
might have made it difficult to see Serrano and Hendrix.
30.)
(Id. at 29-
Also, Hendrix acknowledged that after he waved the flashlight,
the Prime truck began heading toward the right side of the highway
and might have been heeding Hendrix’s warnings, albeit too late and
in the wrong direction.
(Id. at 19, 26-27.)
Given these facts, the
evidence is simply not sufficiently clear for the Court to summarily
decide that there was no breach of duty in this case.
See Baker v.
Harcon, Inc., 303 Ga. App. 749, 752 (2010)(a summary decision on the
issue of negligence is only appropriate when the evidence is “plain,
palpable, and undisputable.”).
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B.
Causation
To establish causation, plaintiff must prove that defendant’s
negligence was “both the ‘cause in fact’ and the ‘proximate cause’ of
[Serrano’s] injury.”
Atlanta Obstetrics & Gynecology Grp., P.A. v.
Coleman, 260 Ga. 569, 569 (1990).
Defendant has two theories as to
why plaintiff has failed to raise a genuine issue of material fact
regarding the cause of Serrano’s death, both of which address the
“cause in fact” requirement.
at 4-6.)
(Def.’s Br. [22] at 14 and Reply [33]
Defendant’s first theory is that plaintiff has failed to
present any evidence that defendant’s truck hit Serrano.
(Id.)
Its
second theory is that even if defendant’s truck hit Serrano, Serrano
would have likely died anyway.
1.
(Id.)
Neither theory is persuasive.
Whether Defendant’s Truck Hit Plaintiff
To withstand defendant’s motion, plaintiff need not produce
evidence definitively showing that defendant’s truck hit Serrano.
Pafford v. Biomet, 264 Ga. 540, 543 (1994) (the “appellant did not
have to produce specific conclusive evidence that a particular
defendant
produced
the
plate”
judgment)(emphasis in original).
in
order
to
avoid
summary
Rather, plaintiff must simply
produce evidence that can support a “reasonable inference” of that
fact.
Patrick v. Macon Hous. Auth., 250 Ga. App. 806, 809 (2001) (a
reasonable
inference
cannot
be
conjecture, or speculation”).
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based
on
“mere
possibility,
Again, the evidence produced by plaintiff in this case meets the
above requirement.
Hendrix testified that the short amount of time
between when Serrano was moaning and gesturing with his arm and when
he exhibited no signs of life coincided precisely with the Prime
truck’s arrival on the scene.
(Hendrix Dep. [23] at 18.)
While this
evidence is circumstantial, it is adequate to support a reasonable
inference
that
the
Prime
truck
hit
Serrano,
defendant has provided no conflicting evidence.
especially
where
See Dawkins v. Doe,
263 Ga. App. 737, 739 (2003) (circumstantial evidence is acceptable
but “must be sufficient to raise a reasonable inference” as to
causation) and Shepherd v. Holmes, 184 Ga. App. 648, 649 (1987)
(circumstantial evidence may raise a reasonable inference where it is
“unrebutted by positive evidence”).
2.
Serrano’s Condition at the Time of Impact
Assuming the Prime truck hit Serrano, defendant theorizes that
Serrano’s
previous
impact
with
Hendrix’s
car,
as
much
as
any
negligence on the part of the Prime driver, caused Serrano’s death.
(Def.’s
Reply
[33]
at
5.)
In
addition,
defendant
points
to
statements from Hendrix’s 911 call referencing a third, unaccountedfor vehicle that might have struck Serrano and indicating that
Hendrix feared Serrano was dead prior to the Prime truck’s arrival.
(Hendrix Dep. [23] at 38 and Ex. 3.)
evidence
suggests
that
Serrano
might
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According to defendant, this
have
died
from
injuries
inflicted
by
Hendrix
or
by
another
vehicle,
and
so
precludes
plaintiff from showing that the Prime truck was the cause-in-fact of
Serrano’s death.
(Defs.’ Reply [33] at 4-5.)
Of course, defendant is correct that it cannot be held liable
for Serrano’s death if he was already dead when the Prime truck
arrived at the scene or if his death can be attributed to Hendrix or
another unidentified driver.
See Burnett v. Stagner Hotel Courts,
Inc., 821 F. Supp. 678, 684 (N.D. Ga. 1993)(“Under Georgia law, ‘[i]f
an injury would have occurred notwithstanding the alleged acts of
negligence
on
the
part
of
the
defendant,
there
could
be
no
recovery...’”)(quoting Housing Auth. of Atlanta v. Famble, 170 Ga.
App. 509, 523 (1984)). However, Hendrix unequivocally testified that
Serrano moaned and raised his arm when he first encountered him, but
that
he
made
no
more
movements
(Hendrix Dep. [23] at 17-18.)
after
the
Prime
truck
passed.
Hendrix’s testimony suggests that
Serrano was alive prior to the alleged collision with Prime truck,
and that the truck’s impact delivered the decisive, lethal blow.
That Prime’s truck hastened what might have happened anyway does not
mean that it was not a cause-in-fact of Serrano’s death.
See
Delson
v. Georgia Dep’t of Transp., 295 Ga. App. 84, 89 (2008)(explaining
that concurrent acts of negligence can combine to produce a single
injury).
Neither do Hendrix’s statements to the 911 operator negate the
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clear import of his deposition testimony.
Regardless of whether a
third unaccounted for vehicle struck Serrano at some point, Hendrix’s
recollection of the accident suggests that Serrano’s impact with the
Prime truck is what caused his death.
(Hendrix Dep. [23] at 16-17.)
As to his statement that he feared Serrano was dead, Hendrix might
have made this comment in haste and only realized Serrano’s true
condition
upon
seeing
him
up
close.
(Id.
at
3.)
Hendrix
specifically stated in his deposition that Serrano showed signs of
life immediately prior to the Prime’s truck’s arrival.
C.
(Id. at 17.)
Avoidable Consequences and Comparative Negligence
Finally,
defendant
argues
that
Serrano’s
own
negligence
precludes liability whether or not Prime’s driver was negligent.
(Def.’s Br. [22] at 16.)
In support of this argument, defendant
cites the avoidable consequences doctrine.
(Id.)
That doctrine is
codified in O.C.G.A. § 51-11-7, which provides:
If the plaintiff by ordinary care could have avoided the
consequences to himself caused by the defendant’s
negligence, he is not entitled to recover. In other cases
the defendant is not relieved, although the plaintiff may
in some way have contributed to the injury sustained.
O.C.G.A. § 51-11-7.
See also Weston v. Dun Transp. & Stringer, Inc.,
304 Ga. App. 84, 87 (2010)(“Under this doctrine, the plaintiff’s
negligence in failing to avoid the consequences of the defendant’s
negligence is deemed the sole proximate cause of the injuries
sustained and, therefore, is a complete bar to recovery, unless the
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defendant wilfully and wantonly inflicted the injuries.”).
Georgia law classifies the avoidable consequences doctrine as an
affirmative defense to a tort action.
“Defenses to Tort Actions”).
See O.C.G.A. § 51-11 (titled
“As with other affirmative defenses,
the defendant has the burden of proving . . . that the plaintiff by
ordinary care could have avoided the consequences to himself or
herself caused by the defendant’s negligence.”
at 87-88.
jury,
Application of the doctrine is usually reserved for the
unless
palpable.”
Weston, 304 Ga. App.
plaintiff’s
“knowledge
of
the
risk
is
clear
and
Id. at 88 (quoting Lowery's Tavern, Inc. v. Dudukovich,
234 Ga. App. 687, 690 (1998)).
Based on the plain language of O.C.G.A. § 51-11-7 and case law
interpreting it, the avoidable consequences doctrine applies only
where a defendant’s negligence becomes or should have become apparent
to the plaintiff.
See O.C.G.A. § 51-11-7 and Weston, 304 Ga. App. at
88 (emphasizing plaintiff’s “knowledge” of the risk in the avoidable
consequences analysis).
Stated another way, a
plaintiff’s duty to
avoid the consequences of a defendant’s negligence “does not arise
until the defendant’s negligence exists, and the plaintiff knew, or
in
the
exercise
of
ordinary
care
should
have
known
of
such
negligence.” Newman v. Collins, 186 Ga. App. 595, 596-97 (1988)(“the
‘should have known’ aspect of plaintiff’s knowledge does not embrace
a duty to anticipate that some unspecified member of the general
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public will or may be negligent”).
Serrano’s alleged negligence, which consisted of drinking in
excess and then walking on or near I-75, preceded the alleged
negligence of the Prime driver.
Although Serrano should have
perceived a general danger from walking on the interstate at night,
he had no way to perceive any specific negligence of the Prime
driver.
Compare Holcomb v. Norfolk S. Ry. Co., 295 Ga. App. 821, 824
(2009)(applying
the
avoidable
consequences
doctrine
where
the
plaintiff was hit by a train while attempting to cross railroad
tracks although she had an unobstructed view of an approaching train)
and Fountain v. Thompson, 252 Ga. 256, 257 (1984)(“While [the victim]
may have originally been negligent in falling drunkenly into the
highway, such negligence is no bar to recovery where the defendant’s
negligence in failing to discover the victim’s peril and avoid injury
to him was greater.”).
defendant’s
alleged
Because Serrano could not have discerned
negligence
ahead
of
time
and
adjusted
his
behavior accordingly, the avoidable consequences doctrine does not
apply.
Fountain, 252 Ga. at 257.
That is not to say that Serrano’s negligence is irrelevant.
It
is highly relevant, but more appropriately considered within the
framework of the comparative negligence rather than the avoidable
consequences doctrine. See Weston, 304 Ga. App. at 87-88 (explaining
the
difference
between
the
two
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doctrines).
Under
Georgia’s
comparative negligence doctrine, a plaintiff’s recovery of damages is
reduced in proportion to his share of the negligence that caused his
injury.
Id.
Recovery is precluded entirely if the plaintiff’s
negligence is equal to or greater than that of the defendant.
The
jury
will
likely
find
that
Serrano’s
negligent
Id.
conduct
contributed to his death, and it certainly would be authorized to
find that Serrano’s negligence was at least equal to that of the
Prime driver.
However, the evidence is not sufficiently “clear and
palpable” for the Court to make that determination summarily.
Id.
(whether there is and the proportion of comparative negligence is
ordinarily a jury question).
See also Mayo v. Old Dominion Freight
Line, Inc., 302 Ga. App. 19, 22-23 (2009)(“even presuming the
decedent’s
original
negligence”
in
walking
along
the
highway
intoxicated, “we cannot say as a matter of law that his negligence
precludes the [plaintiff’s] recovery, because a question of fact
remains as to whether [the defendant’s] negligence was greater”).
III. PLAINTIFF’S NEGLIGENCE PER SE CLAIM
In addition to the common law negligence claim, plaintiff
asserts a claim for negligence per se citing O.C.G.A. § 40-6-93.
That statute states that:
Notwithstanding other provisions of this chapter, every
driver of a vehicle shall exercise due care to avoid
colliding with any pedestrian upon any roadway, shall give
warning by sounding his horn when necessary, and shall
exercise proper precautions upon observing any child or any
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obviously confused, incapacitated, or intoxicated person.
O.C.G.A. § 40-6-93. This statute imposes on drivers the same duty of
ordinary care toward pedestrians on the roadway that is owed to other
drivers under the common law.
See Reed v. Dixon, 153 Ga. App. 604,
604-05 (1980)(“‘The legal requisite of the motorist as to parties on
the street or highway, whether in other vehicles or as pedestrians,
and whether child or adult, is the exercise of ordinary care.’”) and
Hughes v. Brown, 111 Ga. App. 676, 682 (1965) (the statute “imposes
no greater duty on the defendant than does the common law”).
For the
reasons discussed above, there is a genuine issue of fact as to
whether defendant breached the duty to Serrano that is applicable
under O.C.G.A. § 40-6-93.
CONCLUSION
For the foregoing reasons, the Court DENIES defendant’s Motion
for Summary Judgment [22].
SO ORDERED, this 12th day of JUNE, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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