Pizza Driver Runs Over Pedestrian
In a wrongful death action, the plaintiffs argued that a pizza delivery driver was negligent in striking a pedestrian. On appeal, they argued that issues of material fact precluded the award of summary judgment.
Here’s what happened with the pizza driver and the pedestrian
At 8:30PM on August 30, 2019, a pizza delivery driver was traveling southbound on Georgia Highway 7 on a part of the roadway where there are two lanes of traffic, one lane for each direction of travel.
He testified that it was already dark outside and that he had his lights on. As he was driving, he saw a man, later identified as the pedestrian victim, standing still near the middle of the northbound lane approximately one car length in front of his vehicle. There’s no pedestrian crosswalk in this area. Because the man was standing still and didn’t appear to be trying to cross into the southbound lane, the pizza delivery driver returned his attention to the road and continued to drive. Within seconds, he saw a figure enter the southbound lane directly in front of the left hand side of his vehicle. Although he slammed on his brakes, his vehicle didn’t have time to come to a stop, and he struck the pedestrian.
The pizza delivery driver testified that, prior to impact he didn’t see the pedestrian make any movement or other indication that he’d try to enter the southbound lane or otherwise leave his standing position in the northbound lane of the highway. The responding state trooper testified that although he couldn’t tell where the victim’s body hit the vehicle, it came to rest on the far right-hand side of the road after impact. The pedestrian died, at least in part, as a result of his injuries. The delivery driver wasn’t cited for a traffic violation or criminal charges stemming from the accident.
At his deposition, the pizza delivery driver said he was familiar with that stretch of the highway because he traveled it frequently delivering pizzas and that he’d previously seen pedestrians crossing the highway in the area. He also explained that while making deliveries, he sometimes referenced the directions provided by the restaurant’s mobile app by looking at his cellphone that was mounted in a cradle on his dashboard. He also testified that although he periodically glanced at the app to verify his delivery directions, he denied looking at his phone between the time he saw the pedestrian in the northbound lane and the moment of impact.
Another motorist was driving behind the pizza delivery driver when the accident occurred. She testified that she’d seen the pedestrian walking along the adjacent sidewalk about three to four minutes before the collision and noticed that he was “walking just like he was in a daze or something.” She also said that the pedestrian was wearing “dark” clothing. It was dusk at the time of the collision, and it was still dim outside even though there were streetlights. Finally, the witness explained that he “just stepped out in front of the pizza delivery driver’s car. He couldn’t stop—he was too close to him.”
A Georgia State Patrolman was dispatched to the scene of the accident, arriving 20 minutes after the collision. The trooper interviewed the pizza delivery driver and the witness. His accident report noted that “pedestrian in the roadway” and “crossing not at a crosswalk” were contributing factors.
The plaintiffs sued the delivery driver and the pizza restaurant for negligence, negligence per se, and respondeat superior arising from the collision. The driver and the restaurant filed a motion for summary judgment, which the trial court granted, finding that the plaintiffs hadn’t proved that the delivery driver was the proximate cause of the accident.
The mere fact that an accident happened, and the plaintiff may have sustained injuries or damages affords no basis for recovery without a showing of negligence
Judge Benjamin A. Land of the Georgia Court of Appeals wrote that the plaintiffs contended that the trial court erred by granting summary judgment to the pizza delivery driver and the pizza restaurant, arguing that genuine issues of material fact remained regarding the pizza delivery driver’s negligence. Specifically, they argued that summary judgment was inappropriate because it was for the jury to decide whether the delivery driver was negligent in failing to take precautions, such as slowing down or honking his horn, after seeing a pedestrian in an area of the highway that he should’ve known was prone to pedestrian foot-traffic. The plaintiffs also argued that there was an issue of material fact as to whether the delivery driver was looking at his cell phone prior to the collision.
Judge Land said that to prove a cause of action for negligence, a plaintiff must show:
- A legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm;
- A breach of this standard;
- A legally attributable causal connection between the conduct and the resulting injury; and
- Loss or damage to plaintiff’s legally protected interest resulting from the breach.
The mere fact that an accident happened, and the plaintiff may have sustained injuries or damages affords no basis for recovery against a particular defendant unless the plaintiff carries the burden of proof and shows that such accident and damages were caused by specific acts of negligence on the part of that defendant, Judge Land explained. And while questions of negligence are generally left to the jury, in cases where the alleged negligent conduct is susceptible to only one inference, the question becomes a matter of law for the court to determine.
Here, there was no evidence that the delivery driver was driving in an unsafe manner. Undisputed testimony showed that he was driving the speed limit with his headlights on in the southbound lane of the highway when he noticed the pedestrian standing still near the middle of the opposite lane of travel approximately a car-length in front and to the left of his vehicle. There was no crosswalk. Seeing that the pedestrian was standing still, he refocused his eyes on the road and continued traveling south. A few seconds later, the pedestrian moved from his position and walked into the southbound lane directly in front of the pizza delivery driver’s vehicle. The driver couldn’t avoid hitting him when he suddenly stepped out in front of his car. Although the plaintiffs argued that the pizza delivery driver should’ve honked his horn or slowed down when he saw the pedestrian standing still in the adjacent roadway, there was no evidence that the pedestrian indicated that he was going to walk into the southbound lane at that moment. Thus, the plaintiffs’ suggestion that the delivery driver must have failed to exercise due diligence to avoid striking the victim wasn’t supported by the evidence.
Was the Driver Distracted by His Cellphone?
The plaintiffs also argued that the jury could have presumed that the pizza delivery driver had taken his eyes off the roadway to look at directions on the cell phone mounted in his car. However, he testified that he wasn’t looking at his cell phone prior to the collision, and there was no other evidence indicating that he did.
The accident eyewitness testified that the delivery driver was obeying the rules of the roadway and couldn’t have avoided impact with the pedestrian. Under these circumstances, the plaintiffs provided no evidence that any specific negligent act or omission by the pizza delivery driver was the proximate cause of the collision. Negligence isn’t to be presumed, but is a matter for affirmative proof. In the absence of proof of negligence, the court must presume performance of duty without negligence. As such, a jury wouldn’t be authorized to infer negligence because an inference can’t be based on evidence that’s too uncertain or speculative, or that raises merely a conjecture or possibility. The mere possibility of such causation isn’t enough, the judge wrote. As a result, the judgment was affirmed. Glover v. Moore, 2025 Ga. App. LEXIS 82 (Ga. App. February 26, 2025).
Our Atlanta personal injury lawyer are here to help
Contact experienced Atlanta truck accident lawyers at Tobin Injury Law. Our personal injury trial firm is exclusively dedicated to representing individuals who have been seriously injured and families dealing with loss. We are committed to doing everything possible to help our clients focus on recovery and rebuilding after a major motor vehicle accident.