Cannon v. Barnes

357 Ga.App. 228

850 S.E.2d 436

CANNON

v.BARNES.

A20A1216

Court of Appeals of Georgia.

October 20, 2020

Drew Eckl & Farnham, Stevan A. Miller, Lisa R. Richardson, for appellant.

Savage Turner Durham Pinckney & Savage, Robert B. Turner ; Southeast Law, Ashleigh R. Madison, for appellee.

Mercier, Judge.

On February 22, 2013, Trevor Cannon was driving a pickup truck on Interstate 516 when he crossed the median and hit an oncoming vehicle being driven by Stephen Joyner. Stephen¹ and Camie Joyner, his wife who was a passenger in the vehicle, both died as a result of the collision. The Joyners’ three-year-old daughter, Dakota, who was a passenger in the vehicle, survived the collision.

Linda Barnes, Camie's mother, filed the underlying lawsuit against Cannon and John Doe,² another driver that Cannon claimed contributed to the collision, as administrator of Camie's estate and as next friend and joint temporary guardian of Dakota. A jury awarded Barnes, in her representative capacity, $3,000,000, with 55% of fault apportioned to Cannon and 45% to John Doe. Cannon appeals, arguing that the trial court erred by admitting certain evidence, in its jury charge, and by denying his motions for partial directed verdict, for mistrial, for judgment notwithstanding the verdict and for a new trial. Finding no error, we affirm.

1. Cannon argues that the trial court erred by admitting irrelevant and prejudicial evidence at trial. "[T]he admission of evidence is generally committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion." Cooper Tire & Rubber Co. v. Crosby , 273 Ga. 454, 456-457 (2), 543 S.E.2d 21 (2001) (citations and punctuation omitted).

Following rulings on a motion for partial summary judgment and a motion to dismiss, the only remaining claim at trial was for Camie's conscious pain and suffering.

For pre-impact pain and suffering to be awarded, the jury must have some evidence that the deceased at some point in time was conscious of her imminent death; the jury may infer such consciousness from evidence immediately prior to impact or following her injury .... The fright, shock, and mental suffering experienced by an individual due to wrongful acts of negligence will authorize a recovery where attended with physical injury.

Dept. of Transp. v. Dupree , 256 Ga. App. 668, 680 (4), 570 S.E.2d 1 (2002) (citation and punctuation omitted) (disapproved of on other grounds by Dept. of Transp. v. Thompson , 354 Ga. App. 200, 207 (1) n. 6, 840 S.E.2d 679 (2020) ). Cannon does not dispute that Barnes could recover for Camie's pre-impact pain and suffering. Instead, he argues that evidence presented at trial regarding Camie's life, including character evidence, two photographs of her with Stephen and Dakota, that Camie was pregnant at the time of the collision and that Stephen died due to the collision, was irrelevant and unfairly prejudicial.

On the date of the collision, Stephen, Camie and Dakota were returning from a visit to Camie's doctor where her pregnancy had been confirmed. Camie was on the telephone with Barnes, telling her about the appointment, when Barnes heard Camie scream "oh my god, look at that" and then scream Stephen's name; a few seconds later Barnes heard the crash.

Evidence regarding Camie's state of mind, including the fact that she was pregnant and that she was riding in the vehicle with her husband and daughter, had relevance to her fright, shock, and mental suffering prior to the collision. See generally Central of Georgia R. Co. v. Ross , 342 Ga. App. 27, 32 (2), 802 S.E.2d 336 (2017) ("Even evidence of doubtful relevancy should be admitted and its weight left to the jurors.") (citation and punctuation omitted); Blanton v. Marchbanks , 139 Ga. App. 158, 161 (3), 228 S.E.2d 285 (1976) (evidence offered to show the plaintiff's state of mind included "the mental fear, pain and suffering"). The evidence at trial suggested that Camie knew that the collision was imminent and, therefore, background evidence regarding Camie's situation in life and character had relevance to Camie's pain and suffering. See generally Walraven v. State , 250 Ga. 401, 407 (4) (b), 297 S.E.2d 278 (1982) ("Character is circumstantial evidence of conduct and state of mind[.]") (citation and punctuation omitted).

Furthermore, the balancing test of OCGA § 24-4-403 (‘‘Rule 403‘‘)

is a quintessentially fact-sensitive enterprise, and the trial judge is in the best position to make such factbound assessments. Recognizing that coign of vantage, we typically give the [trial] court wide latitude when evaluating the delicate balance that Rule 403 requires. Only rarely - and in extraordinarily compelling circumstances - will we, from the vista of a cold appellate record, reverse a [trial] court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect.

Rivers v. K-Mart Corp. , 329 Ga. App. 495, 497 (1), 765 S.E.2d 671 (2014) (citation and punctuation omitted). Cannon has failed to show that the trial court abused its discretion by ruling that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice. See OCGA § 24-4-403 ; Georgia Osteopathic Hosp. v. O'Neal , 198 Ga. App. 770, 779 (13), 403 S.E.2d 235 (1991) ("Photographs are ordinarily admissible unless they contain inflammatory depictions which might be prejudicial toward the objecting party.") (citation and punctuation omitted); Central Georgia Women's Health Center v. Dean , 342 Ga. App. 127, 141 (2), 800 S.E.2d 594 (2017) ("Rule 403 is an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility.") (citation and punctuation omitted). The trial court did not abuse its discretion in its evidentiary rulings.³

2. Cannon claims that the trial court erred by denying his motion for partial directed verdict regarding Camie's post-impact pain and suffering. "[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict."

St. Paul Mercury Ins. Co. v. Meeks , 270 Ga. 136, 137 (1), 508 S.E.2d 646 (1998).

[O]n appeal from the denial of a motion for a directed verdict or for [judgment notwithstanding the verdict], we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict. However, we review questions of law de novo, applying the plain legal error standard of review.

Southland Propane v. McWhorter , 312 Ga. App. 812, 813, 720 S.E.2d 270 (2011) (citations and punctuation omitted).

Cannon initially moved for a partial directed verdict at the close of plaintiff's evidence. The trial court withheld ruling on the motion, stating that as long as plaintiff's counsel did not argue that Camie might have been alive following the impact "for a few minutes or seconds and she suffered ... it's moot." Cannon renewed his motion for directed verdict at the close of evidence and filed a written motion, which the trial court denied.

Cannon does not point to any evidence or argument at trial that Camie survived the impact or that she was entitled to damages for post-impact pain and suffering. Instead he claims that the trial court improperly permitted Barnes "to place an uncertain timeline on Camie Joyner's death in closing arguments." A review of Barnes's closing argument reveals that she did not claim that Camie survived the impact. Further, Cannon stated in his closing argument that no evidence was presented that Camie survived the impact. Cannon fails to show any harm by the trial court's denial of his motion for directed verdict regarding post-impact pain and suffering. See Carter v. Smith , 294 Ga. App. 590, 595 (3), 669 S.E.2d 425 (2008). As such, this enumeration is without merit.

3. Cannon claims that the trial court erred by giving a jury charge regarding fault and apportionment to nonparty Georgia Department of Transportation, over his objection. "When we review an allegedly erroneous jury charge, we apply a plain legal error standard of review." Eagle Jets v. Atlanta Jet, 321 Ga. App. 386, 398 (6), 740 S.E.2d 439 (2013) (citation and punctuation omitted).

The jury charge in question stated:

Georgia law provides the state has no liability for losses resulting from the plan or design for construction of or improvements to highways where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design. Not only does this provision exempt the Department of Transportation from liability for highway design deficiencies where the highway was initially designed in substantial compliance with existing design standards, it exempts the department of transportation from liability for failure to upgrade a highway to meet current design standards.

For you to apportion damages to Georgia Department of Transportation there must be adequate expert evidence in the form of a registered engineer who has testified that one, Georgia Department of Transportation breached the standard of care which was applicable at the time the roadway was originally designed. And two, that said breach proximately caused the plaintiff's injury.

The jury charge arises from Dept. of Transp. v. Cox , 246 Ga. App. 221, 222-223, 540 S.E.2d 218 (2000).

Cannon argues that because he was seeking to apportion fault and not to hold the Department of Transportation liable, the given jury charge placed a higher burden of proof on him as to the Department of Transportation's fault than necessary regarding apportionment. However, the fault of the Department of Transportation, a nonparty, "cannot be considered for the purposes of apportioning damages without some...