Marshall v. Penland

Filing 16

ORDER granting 11 Motion for Summary Judgment. The Clerk is directed enter judgment in favor of defendant and close this case. Signed by Judge J. Randal Hall on 04/27/2015. (thb)

IN THE UNITED

STATES DISTRICT

COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

THOMAS MARSHALL,

*

Plaintiff,

*
*

TIFFANY ANN PENLAND,

CV

114-138

*
*

Defendant.

*

ORDER

Before

judgment.
motion

is

the

Court

is

Defendant's

motion

for

summary

(Doc. no. 11.) For the reasons stated herein,

the

GRANTED.

I.

BACKGROUND

This diversity suit arises out of a collision between an
automobile and a bicycle in Augusta, Georgia.
A. The Intersection of 13th Street and D'Antignac Street

At

approximately

8:00

a.m.

on

November

3,

2012,

Defendant, a resident of South Carolina, drove her car out of

the University Hospital parking deck in Augusta, Georgia, then
turned left onto 13th Street.

(Def. Dep. at 31.) That portion

of 13th Street has two northbound lanes, two southbound lanes,

and a speed limit of thirty-five miles per hour.

(Id.)

As

Defendant turned left out of the parking deck and onto 13th

Street, she entered the right, northbound lane.

(Id.) Weather

conditions were clear and the road surface was dry.

(Id. ; King

Decl. 17.) The parking deck is located one block south of the

intersection of 13th Street and D'Antignac Street.

(Id.)

At

that intersection, traffic on 13th Street has the right of way
and proceeds under a flashing yellow light.
Traffic on D'Antignac Street is

pursuant

to

a

flashing

red

(King Decl. 18.)

required to come to a stop

light

and

a

stop

sign

before

crossing the intersection, thus yielding the right of way to
thru-traffic on 13th Street.

(Id.;

see Id. , Exs.

1 & 2.)

Defendant approached the intersection at a lawful speed,
was not using her telephone nor was she otherwise distracted.

(Def.

Dep.

at

34.)

She then saw

Plaintiff standing on

the

sidewalk straddling a bicycle near the curb on the far side of
the

intersection.

entered

the

(Id.

at

35.)

intersection.

She

(Id.)

slowed

Plaintiff

her

vehicle

then

left

and
the

sidewalk, entered Defendant's lane, and attempted to cross the

street.

(Id. ; King

intersection,

he

Decl.

was

not

1
in

10.) Although he
or

near

a

was

crosswalk

near
when

the
he

proceeded without a helmet into the right of way of oncoming
traffic.

(King Decl. 1 10.)

B. Whether Plaintiff Was Walking or Riding a Bicycle
Plaintiff has been inconsistent on whether he was walking

across the street, pushing his bicycle across the street, or

riding his bicycle across the street. His medical records show

that

he

informed

numerous

times

emergency

after

the

personnel

accident

and

that

he

bicycle when Defendant's vehicle struck him.

However,

Plaintiff

pedestrian,

alleges

asserts

attempting

to

in

his

in

bicycle

was

riding

that

responses
across

staff

(Doc. no.

complaint

discovery

his

walk

medical

11-5.)

he

that

his

was

a

was

street,

the

he

and

testifies in his deposition that he recalls only standing on

the sidewalk then waking up in a hospital recovery room later
that day.

(Compl. SI 4; doc.

no.

11-4; PI. Dep. at 26,

30.)

In

response to Defendant's motion for summary judgment, Plaintiff

acknowledges

that

he

has

no

recollection

of

the

events

surrounding the collision and concedes that he was riding his

bicycle across 13th Street.

(Doc. no. 13.)

Defendant's position on this factual issue has been the
same from the outset and is consistent with other evidence.

her

deposition,

she

testifies

that

she

saw

In

Plaintiff

straddling his bicycle on the sidewalk as she approached, then

saw him ride his bicycle from the sidewalk into the street.

(Def.

County

Dep.

at

39.)

Sheriff's

Corporal

Office,

Thomas

who

King

responded

from the

to

the

Richmond

accident,

concluded that Plaintiff was attempting to ride his bicycle

westward across 13th Street.

(King Decl.

SI 5.)

C.

The Collision

Defendant swerved from the right outside lane to the left

inside lane to avoid hitting Plaintiff, but nonetheless struck
and injured him.
was

at

fault

(Id.) Corporal King determined that Plaintiff

for

failure

to

yield

the

right

of

way

to

Defendant's vehicle and is unaware of any actions or omissions
by Defendant which were contributing factors to the accident.
(Id.

f

11

&

Ex.

3.)

Other

than

Plaintiff

and

Corporal King was unable to locate any witnesses.

Defendant,

1 9.)

(Id.

Plaintiff, a seventy-eight year old male resident of Georgia,
incurred approximately $88,000.00
result of the collision.
D.

(Compl.

in

M

medical

expenses

as

a

4-6.)

Procedural History

On April 29,

2014,

Plaintiff filed a tort claim against

Defendant in the state court of Richmond County,

Georgia.

June

this

20,

2014,

Defendant

removed the

action

to

On

Court,

then filed a motion for summary judgment on December 12, 2014.
(Doc.

no.

11.)

II.

A.

DISCUSSION

Summary Judgment Standard

Summary judgment is appropriate
genuine dispute as to any material

only if

is

no

fact and the movant

is

entitled to judgment as a matter of law."

"there

Fed.

R.

Civ.

P.

56(a).

Facts are "material" if they could affect the outcome

of the suit under the governing substantive law. Anderson v.
Liberty Lobby,

Inc., 477 U.S. 242, 248

(1986). The Court must

view the facts in the light most favorable to the non-moving
party, Matsushita Elec. Indus. Co.

U.S.

574,

inferences

587
in

(1986),
[its]

and

v. Zenith Radio Corp.,

must

favor."

U.S.

draw
v.

"all

Four

Prop. , 941 F.2d 1428, 1437 (11th Cir. 1991)

475

justifiable

Parcels

of

Real

(en banc) (internal

punctuation and citations omitted).

The moving party has the initial burden of showing the
Court,

by reference to materials on file,

motion.

Celotex Corp.

v.

Catrett,

477 U.S.

the basis for the
317,

323

(1986).

How to carry this burden depends on who bears the burden of
proof at trial.

Fitzpatrick v. City of Atlanta,

1115

1993). When the non-movant has the burden of

(11th Cir.

2 F.3d 1112,

proof at trial, the movant may carry the initial burden in one
of two ways — by negating an essential element of the nonmovant 's case or by showing that there is no evidence to prove

a fact necessary to the non-movant's case. See Clark v. Coats
& Clark,

the

Inc.,

Court

929 F.2d 604,

can

evaluate

606-08

the

(11th Cir.

non-movant's

1991). Before

response

in

opposition, it must first consider whether the movant has met
its initial burden of showing that there are no genuine issues
of material

fact

and that

it

is

entitled to

judgment as

a

matter of law.

Jones v. City of Columbus,

120 F.3d 248,

254

(11th Cir. 1997) (per curiam) . A mere conclusory statement that
the

non-movant

insufficient.

cannot

Clark,

meet

929

the

F.2d at

burden

at

trial

is

608.

If — and only if — the movant carries its initial burden,

the

non-movant

may

avoid

summary

judgment

only

by

"demonstrat[ing] that there is indeed a material issue of fact

that

precludes

summary

judgment."

Id.

When

the

non-movant

bears the burden of proof at trial, the non-movant must tailor
its

response to the method by which the movant

carried its

initial burden. If the movant presents evidence affirmatively
negating a material fact,

the non-movant "must respond with

evidence sufficient to withstand a

directed verdict motion at

trial on the material fact sought to be negated." Fitzpatrick,
2

F.3d at

1116.

a

material

If the movant shows an absence of evidence on

fact,

the

non-movant

must

either

show

that

the

record contains evidence that was "overlooked or ignored" by
the

movant

sufficient

or
to

"come

forward

withstand

a

with

directed

additional

verdict

motion

based on the alleged evidentiary deficiency."
The

non-movant

cannot

carry

its

burden

by

evidence
at

trial

Id. at 1117.

relying

on

the

pleadings or by repeating conclusory allegations contained in
the

complaint.

(11th Cir.

See Morris

1981) . Rather,

v.

Ross,

663

F.2d 1032,

the non-movant must

1033-34

respond with

affidavits or as otherwise provided by Federal Rule of Civil
Procedure

56.

The Clerk has given the non-moving party notice of the

motion for summary judgment and the summary judgment rules, of
the right to file affidavits or other materials in opposition,
and of the consequences of default.

(Doc.

no.

12.) Therefore,

the notice requirements of Griffith v. Wainwright,

772 F.2d

822, 825 (11th Cir. 1985) (per curiam) , are satisfied. The time

for filing materials in opposition has expired, and the motion
is ripe for consideration.

B. Plaintiff's Negligence Claim
Plaintiff alleges that Defendant failed to keep a proper
lookout

and

caused

her

motor

vehicle

to

strike

and

run

over

Plaintiff as he was lawfully crossing 13th Street. Defendant
argues that she is entitled to judgment as a matter of law
because Plaintiff presents no evidence of negligence. To prove
a

negligence

cause

of

action

in

Georgia

a

plaintiff

establish:

(1) a legal duty to conform to a standard
conduct raised by the law for the protection
others against unreasonable risk of harm;
(2)

(3)

of
of

a breach of this standard;

a

legally

attributable

causal

connection

between the conduct and the resulting injury; and

(4)

some loss or damage flowing to the plaintiff's

legally

protected

interest

as

alleged breach of the legal duty.
7

a

result

of

the

must

Pavement Techniques,

Inc.

v.

Myrick,

27 8 Ga.

App.

50 6,

508

(2006) .

Defendant

intersection

testified

under

slowed her vehicle.

the

that,

as

speed limit,

she

she

approached

saw

Plaintiff

the

and

When he entered her lane and violated her

right of way, she swerved to avoid hitting him. Defendant was
not using her telephone nor was she otherwise distracted. This
evidence

shows

negligence,
watchful

that,

contrary to

Defendant

lookout

for

was

in

Plaintiff's

fact

hazards

as

keeping

she

a

traveled

allegation of

diligent

and

north

13th

on

Street.

The Court finds that Defendant has carried her initial

burden

by

affirmatively

negating

an

essential

element

of

Plaintiff's case - namely, breach. Thus, the burden shifts to

Plaintiff to respond with evidence sufficient to withstand a
directed verdict motion at

trial

on this

issue.

Plaintiff urges that the occurrence of a collision at an

intersection equipped with a flashing yellow caution light
creates a jury question as to whether Defendant exercised the
requisite

caution

under

O.C.G.A.

§

40-6-23.

That

statute

provides that

[w]hen

a

yellow

intermittent

proceed

lens

flashes,

through

the

is

illuminated

drivers

of

intersection

with

vehicles

or

past

rapid
may

such

signal only with caution.

O.C.G.A.

§ 40-6-23(2).

However,

the fact of a collision and

the fact of a flashing yellow light do not show that Defendant
8

breached her duty of care nor do they create a presumption of

negligence.
principles,

Plaintiff,

relying

on

res

ipsa

loquitur

fails to remedy this evidentiary deficiency.

Plaintiff also argues that there is a genuine issue of
material fact as to whether Plaintiff acquired the right of

way to cross 13th Street. He insists that a reasonable jury
could find that he properly came to a complete stop,
diligently for oncoming traffic,
the

right

automobile.

complete

of

First,

stop

roadway as

way

prior

to

because

he

and thus momentarily gained

being

Plaintiff

did

was

on

required by Georgia

struck

not

the

law,

by

Defendant's

properly

sidewalk,

prior

to

come

not

§ 40-6-291

laws apply to persons riding bicycles).

Second,

Plaintiff looked for traffic

to

on

a

the

entering the

northbound lanes of 13th Street. O.C.G.A.

evidence that

looked

(traffic

there is no

- diligently or

otherwise - before crossing the street. Third, Corporal King
concluded that Plaintiff violated Defendant's right of way and

Plaintiff fails to present evidence that would permit a jury
to reach a contrary conclusion.

III.

Upon the

genuine

foregoing,

dispute

as

CONCLUSION

the

Court

to any material

finds that

fact

entitled to judgment as a matter of law.

and

there

is no

Defendant

is

IT

IS

ORDERED

judgment (doc.

no.

that

11)

Defendant's

is GRANTED.

motion

for

summary

The Clerk is DIRECTED to

enter judgment in favor of Defendant and CLOSE this case.

ORDER ENTERED at Augusta, Georgia, this <^5r /^day of
, 2015.

Honof^airfTe

J.

Randal Hall

United/states District Judge
*rn District of Georgia

10