Spires v. Thomas

SPIRES v. THOMAS

No. A21A1299

Court of Appeals of Georgia, Third Division

December 6, 2021

DOYLE P. J., REESE and BROWN, JJ.

BROWN JUDGE.

Jess Freeman Spires sued Raven Damone Thomas seeking to recover for injuries he sustained when he was struck by a vehicle driven by Thomas. The trial court granted summary judgment to Thomas, and this appeal followed. For the reasons set forth below, we reverse.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). This [C]ourt applies a de novo standard of review to an appeal from a grant of summary judgment and we view the evidence in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Kelly v. Fann, 343 Ga.App. 351 (807 S.E.2d 98) (2017). So viewed, the evidence shows that at approximately 5:30 a.m. on March 19 2017, Spires was walking south on State Road 87 on his way to work at the Huddle House in Eastman when he was struck by Thomas' vehicle, which was traveling north on the same road. Spires was thrown through the air and landed in a ditch 20 feet from the edge of the roadway. He broke his nose, his right forearm (compound fracture), his right knee, his pelvis, and his back. The impact tore his urethra off his bladder and caused a possible concussion. Spires never saw Thomas' vehicle and had no recollection of the actual impact; he did not know he had been hit until he woke up in the hospital at least a week or two later.

According to Thomas, she was traveling north on a straight part of State Road 87 when she hit Spires. She had on her high beams was looking straight ahead; and believes she was traveling 45 to 50 miles per hour. Thomas deposed that she did not see Spires and thought that she had hit a deer.^[1] After the impact, Thomas stopped her vehicle, called her mother, and then called police.

The "Georgia Traffic Crash Report" notes that Spires was "walking southbound, in the roadway, in the northbound lane [and that he] came to rest 20 feet east of the east roadway edge"; that "[t]here was no roadway evidence to support the exact area of impact, however there [were] no tire marks/skid marks on the shoulder of the roadway that would indicate [Thomas'] vehicle . . . traveled off the road"; that "[a] bottle of Michelob Ultra beer was lying beside the pedestrian at final rest"; and that "[t]he initial responding deputy, Allen Hammock, described the pedestrian as being intoxicated." (Emphasis supplied.) The report also noted that after the impact, Thomas traveled 567 feet before bringing her vehicle to a stop, and that law enforcement suspected alcohol use (but not drug use) by Spires, but that an alcohol "TEST [WAS] NOT GIVEN" to Spires.^[2]

According to Spires, he had walked this route "a million times," and was walking on the side of the grass, about a foot-and-a-half from the white "fog line" and off the pavement. As to his location, Spires deposed as follows: "I know I was off the road. I was not pas[t] that white line on the highway. I was not on the pavement. . . . I know I got good enough sense not to walk down the middle of the highway." Spires had no recollection of the actual impact and did not know what happened until he woke up in the hospital. When asked if he ever stepped onto the pavement, Spires deposed, "No, not that I can remember. . . . I mean, I'm pretty smart about staying out of traffic." According to Spires, he has no idea what Thomas was doing "or how [the accident] happened or why it happened[.]" Spires denied that he was intoxicated at the time of the accident or that he was drinking that morning on his way to work, but testified that after being thrown through the air and into a ditch, he supposedly landed on a beer bottle.^[3] Spires did not believe he had been drinking the night before, but testified that he may have had "a drink or two." Spires swore that he had not consumed any alcohol after midnight on March 19, 2017.

Thomas filed a motion to enforce settlement or in the alternative motion for summary judgment, alleging that the accident occurred when Spires stepped off the shoulder and into the roadway, directly into the path of Thomas' vehicle, and that Spires cannot provide any evidence to show that Thomas negligently operated her vehicle at the time of the accident.^[4] Spires responded, attaching the affidavit of accident reconstructionist/investigator Pete Jones, in which he concluded that a person operating a vehicle similar to the one operated by Thomas at the time of the accident, during similar conditions, with its headlights on and traveling at or within the speed limit of 55 miles per hour, would be able to view a pedestrian on the shoulder of the road from 185 feet away and would have sufficient time and distance to avoid hitting the pedestrian, and that even though the roadway has a slow curve, it "generally offers a clear, unobstructed view and field of vision of things in the roadway and off to the side of the roadway." Jones also averred that Thomas had a duty to stop as close to the scene as possible and her failure to do so "may have undermined the scene evidence and investigation" as "investigating officers need to see where vehicles are stopped and often speak to drivers about where certain events occurred, but leaving the scene can affect location of marks on and off the roadway and the collection of other physical evidence."

The trial court granted Thomas' motion for summary judgment, finding that Spires presented no evidence of a specific act of negligence by Thomas that proximately caused his injuries. Specifically, the record contains no evidence that Thomas left her lane of travel and hit Spires off the roadway and no evidence as to Spires' location at the time of impact; "[t]o the contrary, the Crash Report provides there were no tire marks/skid marks on the shoulder of the roadway that would indicate [Thomas'] vehicle traveled off the road." The trial court also noted that Thomas amended her interrogatory response and that there is no contradictory testimony to be construed against her and that the record establishes that Thomas did not see Spires and that Spires did not see Thomas' vehicle or recollect the impact. Finally, relying on Ireland v. Williams, 351 Ga.App. 124 (830 S.E.2d 538) (2019), the trial court concluded that Jones' expert affidavit contains speculation and conjecture which is insufficient to defeat summary judgment. Spires appeals this ruling.

1. As a preliminary matter, we must determine whether the trial court properly rejected the expert's affidavit and whether it properly relied on the crash report.

(a) Expert's Affidavit.

The trial court erred in rejecting the expert's affidavit. OCGA § 24-7-702 (b) provides that

[i]f 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, if: (1) [t]he testimony is based upon sufficient facts or data; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case.^[5]

See also Wilson v. Redmond Constr., 359 Ga.App. 814, 819 (860 S.E.2d 118) (2021). It has long been recognized that an expert's opinion based upon inadequate knowledge, conjecture, or speculation "does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion." Layfield v. Dept. of Transp., 280 Ga. 848, 851 (1) (632 S.E.2d 135) (2006) (reversing affirmance of trial court's grant of summary judgment to defendant predicated solely upon speculative nature of expert's opinion as to reason for crash). Indeed, "the appropriate standard for assessing the admissibility of [an expert's opinion] is not whether it is speculative or conjectural to some degree, but whether it is wholly so." Id. at 850 (1). See also Ga. Dept. of Transp. v. Miller, 300 Ga.App. 857, 862 (2) (b) (686 S.E.2d 455) (2009); Eastern Dehydrating Co. v. Brown, 112 Ga.App. 349, 351-352 (4) (145 S.E.2d 274) (1965) ("[i]t is not error to allow witnesses to testify to their opinions of the speed of an automobile, whether they be expert or lay witnesses, where they have properly stated the facts upon which their opinions are based") (citation and punctuation omitted). Cf. Fouts v. Builders Transport, 222 Ga.App. 568, 575 (1) (474 S.E.2d 746) (1996) (trial court did not err in permitting an eyewitness to express her opinion as to whether a truck could have stopped if its brakes were working properly, where she testified to the reasons for her opinion, including her observations of the accident and her experience and knowledge of the intersection). Moreover, "[e]xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the layman." (Citation and punctuation omitted.) Fortner v. Town of Register, 289 Ga.App. 543, 546 (1) (657 S.E.2d 620) (2008).^[6]

(b) Crash Report.

Under OCGA § 24-8-803 (8) (C), "factual findings resulting from an investigation made pursuant to authority granted by law" are admissible in civil proceedings "unless the sources of information or other circumstances indicate a lack of trustworthiness." In Professor Paul S. Milich's view, "[t]he kind of agency investigation contemplated by the exception is one with a high degree of competence, fairness, and comprehensiveness. ...