Question of Fact for the Jury to Decide: Expert and all

Posted in Car Accidents,expert testimony,Georgia Court of Appeals on December 13, 2021

Does It Matter if a Pedestrian was Walking in the Road or on the Side when He’s Hit by a Vehicle?

Jess Spires sued Raven Thomas for injuries he sustained when he was struck by Thomas’ vehicle. According to Thomas, she was traveling north on a straight part of State Road 87 when she hit Spires. She said she had on her high beams; was looking straight ahead; and thinks she was traveling about 45 to 50 miles per hour. She said she didn’t see Spires and thought that she’d hit a deer. She stated that she didn’t see Spires until he “unexpectedly stepped into the roadway immediately in front of her oncoming vehicle… and she unavoidably collided with him.”

Background

During her deposition, Thomas said she didn’t see Spires at all and was “assuming that’s what had to happen.” She also said that Spires “probably darted in front of [her] car” because he was drunk and that she “didn’t see [Spires] at all” until he was placed in the ambulance.

During her deposition, Thomas explained that the police officer told her that Spires was “really drunk,” but that she wasn’t sure if Spires had stepped in front of her vehicle because she didn’t see him at all. She couldn’t recall if she told someone that Spires was standing in the middle of the road, but she assumed that was the case because she was traveling in a straight line.

After the impact, Thomas stopped, called her mother, and then called the police.

The “Georgia Traffic Crash Report” noted 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.”

The Georgia Traffic Crash Report also said that after the impact, Thomas traveled more than 500 feet before bringing her vehicle to a stop, and that law enforcement suspected alcohol use by Spires, but that an alcohol test wasn’t given to Spires. There was also no evidence in the record that Spires’ treating physicians ordered a toxicology screen.

Pedestrian had Walked the Route “a Million Times”

According to Spires, he’d 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 road. He testified: “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 accident and didn’t know what happened until he woke up in the hospital. When asked if he ever stepped onto the pavement, Spires said, “No, not that I can remember. … I mean, I’m pretty smart about staying out of traffic.”

He said he had no idea what Thomas was doing “or how [the accident] happened or why it happened[.]”

Spires denied that he was drunk at the time of the accident or that he’d been drinking that morning. However, he testified that after being thrown through the air and into a ditch, he supposedly landed on a beer bottle. Spires didn’t think he’d 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 the day of the accident.

Spires’ Accident Expert at Trial

Thomas filed a motion to enforce settlement or to dismiss the case. She said that the accident happened when Spires stepped off the shoulder and into the road, directly into the path of her vehicle, and that Spires couldn’t provide any evidence to show that Thomas operated her vehicle negligently at the time of the accident.

Spires responded with the affidavit of an accident reconstructionist who opined 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. The expert concluded that a motorist would have enough time and distance to avoid hitting the pedestrian and that even though the roadway had 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.”

The expert also said 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’s Decision

The trial court granted Thomas’ motion for summary judgment and to end the case. The court found that Spires presented no evidence of a specific act of negligence by Thomas that proximately caused his injuries. Specifically, there was no evidence that Thomas left her lane and hit the pedestrian off the roadway, and no evidence as to Spires’ location at the time of impact. The Crash Report instead said that there were no tire marks or 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 was no contradictory testimony to be construed against her and that the record established that Thomas didn’t see Spires and that Spires didn’t see Thomas’ vehicle or recollect the impact.

Finally, the trial court didn’t think much of the expert’s affidavit, finding that it contained speculation and conjecture.

The Court Of Appeals’ Opinion

A panel of Judges E. Trenton Brown III and Clyde L. Reese, and Presiding Judge Sara L. Doyle reversed the decision of the trial court. Judge Brown wrote that as a preliminary matter, the appellate court must determine whether the trial court properly rejected the expert’s affidavit and whether it properly relied on the crash report.

The Court of Appeals held that 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, [*7]  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.

The appropriate standard for assessing the admissibility of an expert’s opinion isn’t whether it is speculative or conjectural to some degree, but whether it’s wholly so, Judge Brown wrote. 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,’ he opined, quoted a 2008 decision.

The 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.”

While the Court of Appeals questioned whether the trial court properly relied on the crash report, Judge Brown said it need not make that determination because pretermitting the admissibility of the report means that an issue of fact existed. As a result, this precluded dismissing the case in favor of Thomas.

Spires argued that the trial court erred in granting Thomas’ motion for summary judgment because there was conflicting evidence as to Spires’ location at the time of the collision. The Court of Appeals agreed, noting the questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury. Here, the evidence wasn’t “plain, palpable, and undisputed.” Instead, the basic question of where Spires was walking when the accident occurred was disputed.

There was an issue of fact as to where Spires was walking when he was struck by Thomas’ vehicle and, therefore, whether Thomas left her lane of travel and hit Spires off the roadway. Accordingly, the Court concluded that the trial court erred in granting summary judgment to Thomas.

The judgment was reversed. Spires v. Thomas, 2021 Ga. App. LEXIS 574 (Ga. Appellant. December 6, 2021).

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