Tallman Pools of Georgia, Inc. v. James ( 1986 )

On Motion for Rehearing.

On motion for rehearing appellees argue that construing the evidence in a light most favorable to them, this court should have based its opinion on the testimony of Webster, the driver of the truck, that he was traveling at approximately 15 to 20 miles per hour at the time of the collision. At the outset we note that appellees presently assume a factual stance contrary to the stance which was taken in their brief on appeal. Appellees now argue that “construing the evidence in a light most favorable to them” should be interpreted to place on this court the duty to utilize the lowest possible speed which Webster could have been driving as opposed to the highest. However, even if this court were to adopt appellees’ new position, our holding would be the same.

If Webster were traveling at 15 miles per hour (22 feet per second), the gap between Webster and the deceased would have been closed in less than two seconds. This evidence is still inadequate, under the facts in this case, to show that Webster could have avoided the collision or so significantly lessened the impact of the collision that death or serious bodily injury would not have ensued. Appellees offer no proof that the difference of two or three seconds in time was sufficient in which to avoid the collision. In view of the lack of this evidence, we adhere to our conclusion that appellees have failed to meet their burden of proof in response to appellants’ motion for summary judgment.

Rehearing denied.