Hiring a really good Atlanta motorcycle accident lawyer Atlanta residents trust can make a monumental difference in the outcome of a case. In this post we will look at a plaintiff who appealed from the grant of partial summary judgment to Domino’s Pizza and its driver in her personal injury action arising from an automobile collision caused by the driver during his employment with Domino’s. The plaintiff contended that the trial court erred by ruling that there was no genuine issue of material fact as to whether injuries to her left foot and ankle were causally related to her injuries from the collision.
Background
On April 20, 2016, the plaintiff was the passenger on a motorcycle operated by her boyfriend. While they were stopped on a two-lane road waiting in a line of other vehicles, they were hit from behind by a vehicle driven by the pizza delivery driver as he reached for some cigarettes that had fallen onto the floor of his car. The plaintiff and her boyfriend were launched into the air, with the plaintiff tumbling head over heels several times before coming to a stop. They both sustained several injuries. The plaintiff broke multiple bones in her right foot and ankle. She was taken to Grady Hospital, and discharged with instructions to see a specialist for her right foot and ankle injuries.
The plaintiff’s primary care physician referred her to another doctor who recommended an MRI. Based on that, the plaintiff was referred to an orthopedic foot and ankle surgeon, who first saw the plaintiff in June 2016. The surgeon recommended stabilization with an Aircast boot and treatment without surgery. In a follow-up visit in August 2016, an x-ray showed that the bone healing was progressing, but the plaintiff continued to have pain in her foot and ankle. By October 2016, she was prescribed an orthotic insert and shoe, her healing was progressing, and she was expected to resume at least partial duties at work as a mail carrier by early December 2016.
On December 6, 2016, the plaintiff went to the surgeon’s office with an injury to her left ankle, due to a fall on the staircase at home. Her left ankle hadn’t been significantly injured in the motorcycle accident. The doctor’s notes from the visit indicated that the bones in her right foot and ankle would have healed by that time, but she consistently reported continued pain and decreased range of motion in her right ankle. In her deposition, the plaintiff said that she fell on a staircase at home because she was favoring her right ankle at the time.
The next month, the plaintiff continued to report ankle pain and tenderness in her right ankle ligaments. Her pain continued in the ensuing months, but an MRI taken in early 2017 showed no ligaments that could be surgically repaired by the surgeon. At a visit in April 2017, he told the plaintiff that her chronic right ankle pain was “likely going to be her new normal.” As far as her left ankle, the plaintiff continued to have pain and in 2021, had surgery to repair a torn tendon in her left ankle due to the fall.
The plaintiff sued Domino’s and the pizza delivery driver to recover damages based on her injuries. After discovery, the defendants moved for partial summary judgment as to any injuries to the plaintiff’s left ankle (arguing that they were caused by the fall and not the motorcycle accident) and her back (arguing that any back-related symptoms were due to an unrelated accident in 2011). The trial court granted the motion, but the order didn’t address any injuries to the plaintiff’s back; with respect to her left ankle injury, the trial court ruled that the undisputed evidence showed that it wasn’t caused by the motorcycle wreck because her right ankle “bones were completely healed” by the time of her fall on the staircase.
The plaintiff appealed, arguing that the trial court erred by granting partial summary judgment to the defendants as to her left ankle injury because issues of fact remained as to whether her right ankle had healed, and because the causation question was appropriately left for the jury based on this record.
The Court of Appeals Reverses
Presiding Judge Sara L. Doyle wrote that ordinary questions of negligence and causation are questions for the jury except in “clear, plain, palpable, and undisputed cases.”
Here, the trial court focused on two pieces of evidence: (i) the plaintiff’s account of her fall (and description of the status of her right ankle); and (ii) the orthopedic surgeon’s deposition and notes from his treatment of the plaintiff in December 2016. First, concerning the orthopedic surgeon’s testimony, the trial court’s order stated, “Her treating physician stated in his notes and deposition her bones were completely healed at the last appointment in October 2016.” Based on this, “the court finds during the time of healing, approximately six months, the plaintiff had the ability of traversing the stairs of her home … without injury.”
However, the judge found that the surgeon’s deposition testimony stated that in October 2016, he expected the plaintiff to be able to return to some form of work duties in December. If anything, this was evidence that she wasn’t “completely healed in October,” as found by the trial court.
Further, and more importantly, Judge Doyle reasoned that the surgeon’s deposition testimony repeatedly clarified that the healing referred to by the trial court and defendants was “the bones,” “from the bones,” and “bone-wise.” Thus, the healing addressed in this testimony was limited explicitly to the bones in the plaintiff’s right ankle, and the orthopedic surgeon never stated that the right ankle joint function or soft tissue such as ligaments and tendons were back to normal in December 2016. This was consistent with his testimony that in January 2017, the plaintiff continued to have right ankle pain, and by April 2017, her chronic pain and inflammation in the right ankle were “likely going to be her new normal.” This testimony supported an inference that the plaintiff didn’t have full function of the right ankle when she fell and that the plaintiff would have been favoring her right ankle as stated, the judge said. Thus, rather than construing the surgeon’s deposition testimony in favor of the plaintiff, the trial court construed it against her, ignored the evidence of persistent soft tissue injury and chronic pain, and deemed her right ankle completely healed based on the orthopedic surgeon’s narrow reference to the healing in the plaintiff’s bones.
Similarly, with respect to the plaintiff’s description of her fall and right ankle condition, the trial court focused on what it deemed to be inconsistencies between her December 2018 deposition and June 2022 affidavit. In the 2022 affidavit, she stated that the December 2016 fall was caused “when my right foot gave way. I lost my balance. …” In her 2018 deposition, the plaintiff gave the following description:
Dealing with my [right] ankle, I tried to shift my weight to keep it off the bad ankle. And as I was walking, I don’t know whether I tripped trying to keep the weight [sic] because I try not to put a lot of weight on my right side. And all of a sudden I just start, I kind of fell over because when I was shifting to the, my weight to the left side, I just lost my balance, and I fell; and I hurt my left ankle… Because of this ankle I guess I’m, I wasn’t trying to put all the weight on the right ankle all the time. And I shift my weight to keep the weight off my right ankle a lot, and that’s when I had the fall.
The plaintiff explained in her 2022 affidavit that she was only able to go up or down the stairs one step at a time, standing sideways, and that this was what she was doing when she fell.
The trial court deemed the deposition’s vagueness and uncertainty to be inconsistent with the assertion in the affidavit that her “right foot gave way. I lost my balance. …” Accordingly, the court construed the evidence against her and concluded that her right foot and ankle were completely healed and therefore could not have caused the fall injuring her left ankle. The plaintiff’s deposition testimony was unequivocal that she was favoring her right ankle, and that this hampered the process of traversing stairs.
Judge Doyle acknowledged that while the plaintiff’s description of the moment she fell was somewhat vague (“I don’t know whether I tripped trying to keep the weight off the right side … when I was shifting … my weight to the left side … I just lost my balance, and I fell…”), nothing in the later affidavit contradicted the basic premise of the fall — that she was favoring the right ankle to accommodate the chronic pain and lack of function in her right ankle. Stating that “my right foot gave way. I lost my balance. …” wasn’t inconsistent with her description of losing balance when shifting weight off of the compromised right ankle. The affidavit wasn’t a denial or the opposite of her prior testimony such that it warranted being construed against her. Instead, the appellate judge found that the affidavit and deposition, taken with evidence from the orthopedic surgeon that the plaintiff hadn’t “completely healed,” supported an inference that favoring her right ankle caused her to fall and injure her left.
Finally, Judge Doyle and the Court of Appeals note that the time between the April 2016 wreck, which caused the right ankle injury, and the December 2016 fall, resulting in the left ankle injury, wasn’t so long as to sever the causal relationship as a matter of law. And there was evidence that the plaintiff was using her right ankle as recommended by her treating physicians, who’d advised her to slowly progress from crutches and a stabilizing boot to walking unaided. Thus, her decision to walk unaided wasn’t in violation of medical recommendations nor was it conclusive, as a matter of law, that the plaintiff failed to care for her own safety.
Judge Doyle concluded that at this stage in the proceeding, there were “bits of evidence” that created genuine issues of material fact that summary judgment wasn’t appropriate. It’s the role of a jury to sort through the evidence, resolve conflicts, and make findings of fact based on the evidence it finds credible, she explained. Further, the concept of proximate cause includes all of the natural and probable consequences of the tortfeasor’s negligence unless there’s a sufficient and independent intervening cause.
Because a rational trier of fact could conclude that it was foreseeable that favoring an injured foot could lead to instability and subsequent falls, and in light of the evidence that the plaintiff hadn’t regained the normal use of her right foot and ankle at the time of the injury, the record presented a jury question as to the proximate cause of the left ankle injury.
As a result, the Court of Appeals held that the trial court erred by construing the evidence against the plaintiff and granting partial summary judgment to the defendants as to her left ankle injury. The judgment was reversed. Willis v. Cowabunga, Inc., 2024 Ga. App. LEXIS 412 ( Ga. App. October 23, 2024).
Contact Us
You can contact an Atlanta motorcycle accident attorney 24 hours a day, 7 days a week by calling 404-JUSTICE (404-587-8423) or using our online contact form. We offer free consultations, and we’ll be happy to answer your questions.