Layfield v. Department of Transportation , 280 Ga. 848 ( 2006 )

SEARS, Chief Justice,

dissenting.

Under the majority opinion, summary judgment will never be appropriate so long as a party can find an expert to make a statement supporting that party’s case, even if that statement is nothing more than an unsupported conclusion. Because Layfield failed to put forth any evidence supporting her claim that the accident was caused by the defective condition of the road, other than the purely speculative and conclusory statement of an expert, the Court of Appeals correctly affirmed the trial court’s grant of summary judgment to the defendants in this case. Accordingly, I dissent.

As the Court of Appeals accurately stated:

The plaintiff has the burden of proof on [the essential element of causation], and when challenged on summary judgment, the plaintiff must point to specific evidence giving rise to a reasonable conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.”¹

Through her expert, the plaintiff put forth evidence that because of an improper design, water could accumulate on a certain part of the road in question during periods of rain. The expert then stated that, in his opinion, the “ ‘loss of control of (the) vehicle was caused by encountering the accumulated water on the road.’ ”² That opinion, however, was based on nothing more than speculation and conjecture, and thus contained no probative value sufficient to create a question of fact to survive summary judgment.³ “[Wjhere the only evidence of the cause of an accident is expert testimony based on conjecture and speculation, summary judgment in favor of the defendant is mandated.”⁴

The expert did not conduct an accident reconstruction to make any determination as to how the crash occurred in this case. He did not use the evidence at the scene to determine the path or trajectory of the accident. He did not investigate the accident to determine the speed Michael Layfield may have been driving, the amount of water that may have accumulated on the road, or the effect of Michael’s bald tires. The expert admitted that he did not determine where Michael lost control of his car within a 300-foot stretch of road. Thus, the expert offered nothing to connect the accident to the part of the road that he believed to be defective, and certainly nothing to support his bald conclusion that the accident must have been caused by the road defect.

The majority does not provide any basis for the expert’s causation statement, as the expert himself offered none. The expert merely opined that because water may have accumulated on the road, that water must have caused the accident. As the Court of Appeals noted, that statement is “nothing more than an impermissible ‘res ispa loquitor’ approach: a short circuited analysis requiring quantum leaps of faith and logic and smacking of rank speculation.”⁵ “The mere fact that an accident happened and a plaintiff was injured affords no basis for recovery unless the plaintiff carries her burden of proof and shows that the accident was caused by specific acts of negligence of the defendant.”⁶

Evidence supporting the existence of a defect near the accident site is not evidence that the defect caused the accident. “ ‘[Wjhether there were [defects] in the road at the site where the vehicle left the road is not material. The material inquiry is whether there were [defects] in the road at the point where the vehicle first went out of control.’ ”⁷ The plaintiff never offered any evidence connecting the alleged defects in the road to Michael’s accident.

As in Johnson, no expert in this case “stated the necessary facts or had the required expertise to determine the manner in which the incident occurred, its cause, or whether that cause was attributable to a breach of duty on the part of the DOT.”⁸ Even under the lenient standard necessary to survive summary judgment, the plaintiff simply failed to meet her burden of showing any causal connection between the defect and the accident in this case.

It is not sufficient to meet the burden on summary judgment merely for an expert to state a conclusion without any basis. The plaintiff in this case established the existence of a defect in the road sufficient to survive summary judgment, but failed to establish by any probative evidence that the defect was the proximate cause of the injury. Accordingly, summary judgment for the defendants was appropriate.

Decided July 6, 2006 Reconsideration denied July 28, 2006. Vansant & Corriere, Alfred N. Corriere, for appellant. Thurbert E. Baker, Attorney General, KathleenM. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Reagan W. Dean, Claude M. Sitton, Assistant Attorneys General, Finley & Buckley, Timothy J. Buckley III, Kelly R. Castellow, for appellees. I am authorized to state that Justice Hines and Justice Melton join in this dissent.

1 Layfield v. Dept. of Transp., 271 Ga. App. 806, 808 (611 SE2d 56) (2005), quoting Head v. Sears Roebuck & Co., 233 Ga. App. 344, 345 (503 SE2d 354) (1998).

2 Majority opinion, p. 851.

3 Bankers Health & Life Ins. Co. v. Fryhofer, 114 Ga. App. 107, 111 (150 SE2d 365) (1966) (if the basis for an expert’s opinion is “wholly speculative or conjectural, it must follow that his opinion is without foundation and has no probative value.”).

4 Layfield, 271 Ga. App. at 809; see also Drawdy v. Dept. of Transp., 228 Ga. App. 338, 341 (491 SE2d 521) (1997) (summary judgment proper where expert witness’s opinion that water caused plaintiffs vehicle to hydroplane was based on pure speculation).

5 Layfield, 271 Ga. App. at 809.

6 Berry v. Hamilton, 246 Ga. App. 608, 609 (541 SE2d 428) (2000).

7 Johnson v. Dept. of Transp., 245 Ga. App. 839, 840 (538 SE2d 879) (2000); see also Wright Contracting Co. v. Davis, 90 Ga. App. 585 (83 SE2d 567) (1954) (existence of a defect is not sufficient - plaintiff must also show that defect caused the accident).

8 245 Ga. App. at 840.