Katherine Glynn Head v. Jadilson Silva De Souse ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 18, 2019
In the Court of Appeals of Georgia
A19A2284. HEAD v. DE SOUSE.
BARNES, Presiding Judge.
This personal injury case arises out of an automobile accident in which
Katherine Glynn Head struck Jadilson Silva de Souse and his dog as they were
walking across a parking lot entrance. De Souse sued Head for negligence and sought
compensatory and punitive damages. Head answered, denying liability, and asserted
an act of God defense. Following discovery, the trial court entered an order denying
Head’s motion for summary judgment as to de Souse’s punitive damages claim and
granting de Souse’s motion for summary judgment as to Head’s act of God defense.
Head appeals these summary judgment rulings. For the reasons discussed below, we
reverse the trial court’s denial of Head’s motion for summary judgment on de Souse’s
punitive damages claim, and we affirm the court’s grant of de Souse’s motion for
summary judgment on Head’s act of God defense.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” OCGA § 9-11-56 (c). “Summary judgments enjoy
no presumption of correctness on appeal, and an appellate court must satisfy itself de
novo that the requirements of OCGA § 9-11-56 (c) have been met.” Cowart v.
Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). In reviewing the grant or
denial of summary judgment, we “view the evidence, and all reasonable inferences
drawn therefrom, in the light most favorable to the nonmovant.” (Citation and
punctuation omitted.) Id.So viewed, the record reflects that on the afternoon of February 4, 2016, Head,
who was then 16 years old, was driving from her high school to the Costco on
Windsor Parkway. De Souse was walking his dog on the sidewalk near the Costco.
As Head made a right turn into the Costco parking lot, she struck de Souse and his
dog as they were walking across the parking lot entrance. The police arrived on the
scene, and Head was issued a citation for failure to yield to a pedestrian. As a result
of his injuries, de Souse was transported to the hospital by ambulance. De Souse
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subsequently had surgery on his knee and was unable to work after the accident. His
dog also sustained injuries.
After de Souse sued Head for negligence, discovery ensued. In her deposition,
Head testified there were trees on both sides of the street leading up to the entrance
of the Costco parking lot that obscured her view as she was driving. Head further
testified that when she made the right turn into the Costco parking lot, the sun
temporarily blinded her from seeing de Souse and his dog in the crosswalk. However,
Head acknowledged that she had been to the same Costco approximately 15 times
before the accident, had used the same entrance on those prior occasions, and had
previously driven to Costco “on sunny days.” Head testified that before the accident,
she had been driving for about 25 minutes, and the sun had been bothering her during
the trip. Head admitted that she owned three pairs of sunglasses and had used them
in the past when driving during sunny weather conditions, but she did not have them
with her that day. Head also testified that she had failed to use her sun visor during
the trip, which would have helped block the sun.
Also during her deposition, Head admitted to calling her father and texting on
her cell phone during her trip to Costco, and she acknowledged that it was illegal
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under Georgia law for her to do so.1 But Head testified that her father did not answer
the phone call, that she only texted while stopped at red lights, and that she was not
using her phone at the time of the accident. Head testified that her driver’s license had
never been suspended or revoked, she had never been arrested, she had never been
in a prior motor vehicle accident, and she had no prior traffic citations other than the
one she received in this case.
Among other claims and defenses in the litigation, de Souse sought punitive
damages based on Head’s texting and driving, and Head asserted as an affirmative
defense that the accident was the result of an act of God. De Souse moved for
summary judgment as to Head’s act of God defense,2 and Head moved for summary
1
See former OCGA § 40-6-241.1 (b) (“Except in a driver emergency and as
provided in subsection (c) of this Code section, no person who has an instruction
permit or a Class D license and is under 18 years of age shall operate a motor vehicle
on any public road or highway of this state while engaging in a wireless
communication using a wireless telecommunications device.”). See also former
OCGA § 40-6-241.1 (a) (1) (defining “engage in a wireless communication” to mean
“talking, writing, sending, or reading a text-based communication, or listening on a
wireless telecommunication device”). The General Assembly repealed OCGA § 40-6-
241.1 as part of the Hands-Free Georgia Act, effective July 1, 2018. See Ga. L. 2019,
p. 127, § 5. See also OCGA § 40-6-241 (c) (restricting use of wireless
telecommunications devices and stand-alone electronic devices by motor vehicle
drivers).
2
De Souse also sought spoliation sanctions against Head and attorney fees
pursuant to OCGA § 9-15-14. The trial court denied spoliation sanctions and attorney
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judgment as to de Souse’s punitive damages claim. The trial court granted summary
judgment to de Souse on Head’s act of God defense, concluding that the bright
sunlight encountered by Head when turning into the parking lot was not an
unpredictable natural catastrophe. The trial court denied summary judgment to Head
on de Souse’s punitive damages claim, stating that the issue of punitive damages is
normally for the jury and that “[t]here exists no guaranty that the jury would not be
able to grant such damages based on whatever facts are presented at trial.”
1. Head contends that the trial court erred in denying her motion for summary
judgment on de Souse’s punitive damages claim. We agree.
To prevail on summary judgment, “a defendant who will not bear the burden
of proof at trial need not affirmatively disprove the [plaintiff’s] case, but may point
out by reference to the evidence in the record that there is an absence of evidence to
support any essential element of the [plaintiff’s] case.” Cox Enterprises v. Nix, 274
Ga. 801, 804 (2) (560 SE2d 650) (2002). “Where a defendant moving for summary
judgment discharges this burden, the [plaintiff] cannot rest on [his] pleadings, but
rather must point to specific evidence giving rise to a triable issue.” (Citation and
punctuation omitted.) Cowart, 287 Ga. at 623 (1) (a).
fees, and de Souse has not appealed those rulings.
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Guided by these principles, we turn to our law concerning punitive damages
and its particular application in automobile accident cases. Punitive damages are
authorized “only in such tort actions in which it is proven by clear and convincing
evidence that the defendant’s actions showed willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would raise the
presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).
And it is well settled that negligence, even gross negligence, is
inadequate to support a punitive damages award. Something more than
the mere commission of a tort is always required for punitive damages.
There must be circumstances of aggravation or outrage. In cases
involving automobile collisions, punitive damages are authorized when
the accident results from a pattern or policy of dangerous driving, such
as excessive speeding or driving while intoxicated, but not when a
driver simply violates a rule of the road.
(Citations and punctuation omitted.) Lindsey v. Clinch County Glass, 312 Ga. App.
534, 535 (718 SE2d 806) (2011). See Brooks v. Gray, 262 Ga. App. 232, 233 (1) (585
SE2d 188) (2003).
In his brief opposing Head’s motion for summary judgment, de Souse argued
that the evidence that Head was talking and texting on her cell phone in violation of
Georgia law during her trip leading up to when she struck him and his dog would
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support an award of punitive damages.3 But motor vehicle and traffic-related
violations that are not the proximate cause of the automobile accident in question
generally will not support an award of punitive damages.4 See Doctoroff v. Perez, 273
Ga. App. 560, 561-562 (615 SE2d 623) (2005) (defendant’s action of driving without
a valid license was not proximate cause of accident and therefore did not support
punitive damages claim); Brooks, 262 Ga. App. at 233 (2) (fact that 16-year-old
defendant was driving in early morning hours, even though his license did not permit
him to drive between the hours of 1:00 a.m. and 5:00 a.m., could not support punitive
damages award, given that his “driving after 1:00 a.m. was not the proximate cause
of the accident; rather, it was his crossing the centerline that caused the accident”).
3
De Sousa also argued that Head’s failure to take precautionary measures, such
as wearing sunglasses or using the car’s sun visor, to ensure that she was driving
safely in the sun would support an award of punitive damages. However, as noted
above, negligence, even gross negligence, is insufficient to support a punitive
damages award. Lindsey, 312 Ga. App. at 535.
4
It is true that a defendant driver’s conduct of leaving the scene of an accident
may support an award of punitive damages. See Langlois v. Wolford, 246 Ga. App.
209, 210-211 (1) (539 SE2d 565) (2000); Battle v. Kilcrease, 54 Ga. App. 808, 809-
810 (189 SE 573) (1936). “[Those] cases are distinguishable from the present one,
however, because the act of leaving the scene of the collision creates a risk of further
harm to an injured party who may not be able to contact authorities for help.” Benton
v. Anderson, 295 Ga. App. 190, 191 (671 SE2d 238) (2008). In the present case, Head
stayed at the scene of the accident.
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And, here, Head testified that she was not using her phone at the time of the accident,
and de Souse did not offer any witness testimony, cell phone records, or other
evidence to rebut Head’s testimony in this regard. While de Souse argued that Head’s
testimony was self-serving and that a jury should determine her credibility,
a witness’s uncontradicted testimony cannot simply be disbelieved in
order to eliminate the evidence it provides. Rather, on summary
judgment, what one witness says on a material point must be genuinely
contradicted by some other evidence – what another witness says, a prior
statement by the witness, or a document or other piece of physical
evidence. Once the pleadings are pierced with actual evidence, the
plaintiff must point to admissible evidence showing a genuine issue of
fact as summary judgment cannot be avoided based on mere speculation
or conjecture.
(Citations and punctuation omitted.) Elder v. Hayes, 337 Ga. App. 826, 831 (1) (788
SE2d 915) (2016). See Cowart, 287 Ga. at 633-634 (3) (c). Accordingly, given the
uncontroverted evidence that Head was not using her cell phone at the time of the
accident, her phone-related conduct was not the proximate cause of the accident and
could not support a punitive damages claim. See Doctoroff, 273 Ga. App. at 561-562;
Brooks, 262 Ga. App. at 233 (1).
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Furthermore, separate and apart from the proximate cause issue related to
Head’s use of her cell phone, “[i]n this case, there [was] no evidence that [Head] was
speeding, driving while under the influence, or that [she] had a history of
distraction-related accidents, traffic violations, or other evidence that would show a
pattern of dangerous driving or other aggravating circumstances so as to authorize an
award of punitive damages.” Lindsey, 312 Ga. App. at 536. For this additional reason,
the evidence fell short of providing a basis for an award of punitive damages. See
Archer Forestry v. Dolatowski, 331 Ga. App. 676, 678 (1) (771 SE2d 378) (2015)
(reversing trial court’s denial of defendant’s motion for summary judgment on
punitive damages claim, where there was evidence that the defendant driver was
traveling slightly over the speed limit and was talking on his cell phone when the
collision occurred, but no evidence of a pattern or practice of dangerous driving by
the defendant, such as excessive speeding or driving while intoxicated); Mastec North
America v. Wilson, 325 Ga. App. 863, 867-868 (755 SE2d 257) (2014) (reversing trial
court’s denial of defendant’s motion for summary judgment on punitive damages
claim, where defendant driver was talking on his cell phone at the time of the accident
and pled guilty to the misdemeanor traffic violation of “too fast for conditions,” but
there was no evidence that he was violating the posted speed limit, and he had no
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history of any prior accidents resulting from traffic violations or of other conduct
showing a pattern or policy of dangerous driving); Lindsey, 312 Ga. App. at 535-536
(affirming trial court’s grant of defendant’s motion for summary judgment on punitive
damages claim, where there was evidence that defendant driver frequently used his
cell phone while driving and was distracted by looking up a number on his phone
when the accident occurred, but no evidence that he had a history of
distraction-related accidents, traffic violations, or other conduct showing a pattern of
dangerous driving or other aggravating circumstances). Compare Langlois, 246 Ga.
App. at 210-212 (1) (punitive damages authorized where defendant driver left the
scene of the accident, was intoxicated, and had a history of DUIs and moving traffic
violations).
Because the facts in this case could not support an award of punitive damages
against Head as a matter of law, the trial court erred in denying Head’s motion for
summary judgment on de Souse’s punitive damages claim.
2. Head also contends that the trial court erred in granting de Souse’s motion
for summary judgment on Head’s act of God defense. We disagree.
A plaintiff who moves for summary judgment on an affirmative defense has the
burden of piercing that defense. Clay v. Oxendine, 285 Ga. App. 50, 56 (1) (645 SE2d
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553) (2007). If the plaintiff meets that burden, the burden then shifts to the defendant
to point to evidence showing a genuine issue of material fact for trial. Id.A claim that an automobile accident was caused by an act of God rather than
the fault of the defendant is an affirmative defense. See Lewis v. Smith, 238 Ga. App.
6, 7 (517 SE2d 538) (1999).
By definition, the legislature constricted an “act of God” to mean “an
accident produced by physical causes which are irresistible or inevitable,
such as lightning, storms, perils of the sea, earthquakes, inundations,
sudden death or illness. This expression excludes all idea of human
agency.” OCGA § 1-3-3 (3). Plainly, the statutory definition
incorporates three basic elements: (1) an accident produced by (2) an
irresistible or inevitable force of nature or God, (3) which excludes all
idea of human agency or conduct. OCGA § 1-3-3 (3). In other words, an
“act of God,” not an act of man, must solely cause the accident.
(Emphasis omitted.) Strange v. Bartlett, 236 Ga. App. 686, 687 (1) (513 SE2d 246)
(1999). “The term ‘act of God’ in its legal sense applies only to events in nature so
extraordinary that the history of climatic variations and other conditions in the
particular locality affords no reasonable warning of them.” (Citation and punctuation
omitted.) Sampson v. General Elec. Supply Corp., 78 Ga. App. 2, 8 (3) (50 SE2d 169)
(1948). An act of God refers to an occurrence that is “totally unexpected in the natural
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world,” such as a lightning strike in a location where a strike normally does not occur,
an earthquake, a meteor, or a tidal wave. (Citation and punctuation omitted.) Strange,
236 Ga. App. at 688 (1).
Here, de Souse pierced Head’s act of God defense by pointing to evidence that
the automobile accident was caused all or in part by the fault of Head rather than a
force of nature, given that Head testified that she failed to wear her sunglasses or put
down the sun visor on her car despite the sunny weather conditions. See Strange, 236
Ga. App. at 687 (1) (act of God defense not viable where the plaintiff’s injuries were
caused all or in part by the fault of the defendant). The burden then shifted to Head
to point to evidence showing a genuine issue of material fact with respect to her
defense, see Clay, 285 Ga. App. at 56 (1), but she failed to point to any evidence that
the sunlight she encountered was so extraordinary and unexpected as to render the
accident that occurred inevitable.
As previously noted, Head acknowledged in her deposition that while sunlight
obscured her vision when she turned into the Costco parking lot, she had previously
driven the same route on multiple occasions under sunny weather conditions. Head
further admitted that she had been driving for approximately 25 minutes before the
accident, that it had been “sunny the entire drive,” and that the sun had been
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bothering her prior to the accident. In light of her testimony, Head failed to point to
any evidence that encountering bright sunlight while driving was an unexpected
natural occurrence or that she had no reasonable warning that it might obscure her
vision.5 It follows that the trial court committed no error in granting summary
judgment to de Souse on Head’s act of God defense. See Sampson, 78 Ga. App. at 8
(3) (concluding that evidence of heavy rain did not support an act of God defense,
where there had previously been other heavy rains in the area). Compare Western &
Atlantic R. v. Hassler, 92 Ga. App. 278, 281 (88 SE2d 559) (1955) (concluding that
there was a jury issue as to whether the damage to the plaintiff’s property was caused
by an act of God or the fault of the defendant, where there was evidence that
“extraordinary and unprecedented” rainfall in an amount greater than could be
remembered “by the oldest citizens who testified as witnesses” had inundated the
property).
Judgment affirmed in part and reversed in part. Mercier and Brown, JJ.,
concur.
5
Head also testified that the trees lining the road leading to the parking lot
entrance obscured her vision, but, as noted above, she admitted that she had driven
that same route multiple times. As with the sunlight, the trees lining the roadway were
not an unexpected natural occurrence.
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