Stephen G. Maloof, Administrator of the Estate of Lorraine Maloof v. Metropolitan Atlanta Rapid Transit Authority

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, 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/
February 24, 2015
In the Court of Appeals of Georgia
A14A2233. MALOOF v. METROPOLITAN ATLANTA RAPID
TRANSIT AUTHORITY.
RAY, Judge.
Stephen Gerard Maloof, as administrator of Lorraine Maloof’s estate, (the
“Estate”), sued Metropolitan Atlanta Rapid Transit Authority (“MARTA”) for
injuries sustained by Lorraine while she was riding as a wheelchair bound-passenger
on a MARTA para-transit van that collided with another vehicle. MARTA filed a
motion for summary judgment as to the Estate’s remaining claims for negligence in
failing to properly secure her wheelchair and failure to maintain a lane,1 which the
trial court granted. The Estate appeals from this order. For the following reasons, we
1
In MARTA v. Maloof, 304 Ga. App. 824 (698 SE2d 1) (2010), this Court
reversed, upon interlocutory appeal, the trial court’s denial of MARTA’s motion for
summary judgment on Maloof’s claims for wrongful death.
affirm the trial court’s grant of summary judgment as it relates to claims of MARTA’s
negligence for failing to properly secure Lorraine’s wheelchair, we vacate the trial
court’s grant of summary judgment as it relates to claims of MARTA’s negligence for
failure to maintain a lane, and we remand the case to the trial court for further
proceedings.
“On appeal from the trial court’s grant of summary judgment, we conduct a de
novo review of the record to determine whether the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates a genuine issue of material fact.”
(Citation and punctuation omitted.) Bennett v. MARTA, 316 Ga. App. 565, 566 (730
SE2d 52) (2012). Summary judgment is appropriate only where there is no genuine
issue of material fact and the moving party demonstrates that it is entitled to judgment
as a matter of law. Id.
The record shows that on April 13, 2005, Lorraine was a passenger on a
MARTA para-transit van. After Lorraine got on the bus, she backed her powered
wheelchair into position on the van, and the driver secured the wheelchair to the floor
in four places and placed a lap belt on her. On the day of the accident, Lorraine
refused to wear the shoulder harness. Lorraine had ridden the van at least a “couple
2
dozen” times before and always declined use of the shoulder harness. Once Lorraine
was secured, the van continued along its normal route.
As the van began traveling west on Ponce de Leon Avenue, William
Cleveland’s vehicle was also traveling west in the lane to the left of the MARTA van,
closest to oncoming traffic. The MARTA van slowed down to make a wide right turn
onto Piedmont Avenue and, in doing so, veered into the other west bound lane. As
the MARTA van turned, Cleveland’s right mirror struck and broke the left mirror of
the MARTA van. The impact simply pushed Cleveland’s vehicle’s mirror inward, but
did not damage it. Anticipating the impact, the MARTA van’s driver stepped on the
brakes, and Lorraine fell to the ground and fractured her leg. The wheelchair
remained secured to the floor of the van. Police were summoned to the scene, and
neither driver was issued a citation as a result of the incident. Lorraine was treated for
her injuries and was immobile for several months before passing away on August 23,
2005.
As a result of Lorraine’s injuries, the Estate filed suit against MARTA alleging
that “MARTA’s van driver was negligent in failing to secure the wheelchair properly
and in failing to maintain her lane.” The Estate appeals from the trial court’s grant of
summary judgment to MARTA.
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1. The Estate contends that the trial court erred in failing to give evidentiary
weight to the transcribed and recorded, but unsworn, statement given by Lorraine (the
“Statement”) to an insurance agent acting on behalf of MARTA after the accident on
the grounds that it constituted hearsay. Lorraine’s Statement was provided to the
Estate by MARTA in its response to a request for production of documents, and the
Estate relied upon the statement in its response brief to MARTA’s motion for
summary judgment. MARTA objected to the admission of the Statement as hearsay,
and the trial court agreed.
“Admissibility of evidence on motion for summary judgment is governed by
the rules relating to form and admissibility of evidence generally.” (Punctuation and
footnote omitted.) Capital City Developers, LLC v. Bank of N. Ga., 316 Ga. App. 624,
625-626 (1) (730 SE2d 99) (2012). This Court will not disturb a trial court’s ruling
on whether to admit evidence as an exception to the hearsay rule absence an abuse
of discretion. Id.
For the first time on appeal, and without providing substantive argument or
citations to the record, the Estate contends that Lorraine’s Statement is subject to
4
several exceptions from the hearsay rule under Georgia’s new Evidence Code.2 We
examine each in turn.
(a) Then existing mental, emotional, or physical condition. OCGA 24-8-803
(3) provides an exception from the hearsay rule for statements “of the declarant’s then
existing state of mind, emotion, sensation, or physical condition. . . but not including
a statement of memory or belief to prove the fact remembered or believed[.]”
However, before a statement can be admitted under this exception, “the declarant’s
state of mind must be a relevant issue.” (Citation omitted.) T. Harris Young &
Assocs., Inc. v. Marquette Electronics, Inc., 931 F.2d 816, 828 (III) (B) (11th Cir.
1991).3 Here, Lorraine’s state of mind, emotional or physical condition is not is at
issue regarding MARTA’s alleged negligence in failing to secure her shoulder
2
Specifically, the Estate contends that the Statement falls under the following
exceptions to the hearsay rule under Georgia’s new Evidence Code: OCGA § 24-8-
803 (3) (“Then existing mental, emotional, or physical condition”); OCGA § 24-8-
803 (6) (“Records of regularly conducted activity”); OCGA § 24-8-803 (8) (“Public
records and reports”) and OCGA § 24-8-807 (“Residual exception”).
3
“Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of
Evidence, we will look to case law from federal courts within the Eleventh Circuit for
guidance in interpreting that statute.” (Citations omitted.) Ware v. Multibank 2009-1
RES-ADC Venture, LLC, 327 Ga. App. 245, 249 (2), n. 11 (758 SE2d 145) (2014).
5
harness. Accordingly, we cannot conclude that this hearsay exception applies to
Lorraine’s Statement. See Id.4
(b) Records of regularly conducted activity. OCGA § 24-8-803 (6) provides
that the following is not excluded by the hearsay rule:
a memorandum, report, record, or data compilation . . . if (A) made at or
near the time of the described acts, events, conditions, opinions or
diagnoses; (B) made by, or from information transmitted by, a person
with personal knowledge and a business duty to report; (C) kept in the
course of a regularly conducted business activity; and (D) it was the
regular practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the testimony of the
custodian or other qualified witness or by certification that complies
with [relevant code sections]. . . .
Here, Lorraine’s Statement does not fall under this exception of the hearsay rule as
the Estate did not attempt to comply with the foundational requirements set forth in
OCGA § 24-8-803 (6) when relying upon the documents. See Noble v. Alabama Dept.
of Environmental Mgt., 872 F.2d 361, 366-367 (III) (11th Cir. 1989) (district court
erred in admitting evidence under Fed.R.Evid. 803 (6) when party seeking admission
4
Lorraine’s Statement does not reveal whether she wanted MARTA to secure
the shoulder harness upon her. Had such statement included this information, our
decision on this issue may very well have been different.
6
of document did not lay adequate foundation for its admission under the business
records exception to the hearsay rule).
(c) Public Records and Reports. Lorraine’s Statement does not fall under
OCGA § 24-8-803 (8) as it is not a public record or report.
(d) Residual Exception. Further, the Estate’s argument that her Statement falls
under the residual exception found in OCGA § 24-8-807 is without merit. That code
section provides that
[a] statement not specifically covered by any law but having equivalent
circumstantial guarantees of trustworthiness shall not be excluded by the
hearsay rule, if the court determines that: (1) The statement is offered as
evidence of material fact; (2) The statement is more probative on the
point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (3) The general
purposes of the rules of evidence and the interests of justice will best be
served by admission of the statement into evidence.
We find no abuse of discretion in the trial court’s conclusion that the Statement
was not admissible. The trial court, in its order, clearly noted that the Statement was
not more probative on the point for which it was offered than any other evidence
which could be provided. The Estate sought to introduce the Statement for the
purpose of showing that MARTA did not provide Lorraine with a shoulder harness
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on the day of the incident. The trial court correctly noted that this evidence was not
inconsistent with the testimony provided by the van’s driver that Lorraine declined
to wear a shoulder harness that day and that the shoulder harness was optional on the
part of the passenger. Further, the Statement lacks the “equivalent circumstantial
guarantees of trustworthiness” that Rule 807 requires as Lorraine provided the
Statement to MARTA as part of an ongoing insurance investigation that she hoped
to glean benefit from. United Technologies Corp. v. Mazer, 556 F.3d 1260, 1279 (III)
(b) (11th Cir. 2009).
(e) Based upon our conclusion that Lorraine’s Statement did not fall under any
of the hearsay exceptions enumerated by the Estate, we need not address whether the
admission of Lorraine’s Statement would create an issue of material fact as to the
Estate’s claim that MARTA was negligent in failing to properly secure her
wheelchair. Accordingly, we affirm the trial court’s grant of summary judgment to
MARTA on the issue of whether MARTA negligently secured Lorraine’s wheelchair
to the van.
2. The Estate next contends that the trial court erred in finding that the police
report prepared by the officer responding to the scene constituted inadmissible
8
hearsay because it was unsworn. Because we find that the report fell under the public
records exception to the hearsay rule, OCGA § 24-8-803 (8), we agree.
OCGA § 24-8-803 (8) provides an exception to the hearsay rule for
public records, reports, statements, or data compilations, in any form, of
public offices, setting forth: . . . (B) Matters observed pursuant to duty
imposed by law as to which matters there was a duty to report. . . or (C)
In civil proceedings. . . factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of trustworthiness.
It has been held that, in civil cases, when a police officer personally observed the
matter described in a police report, that officer’s report is admissible. See Jonas v.
Isuzu Motors Ltd., 210 F. Supp. 2d 1373, 1378 (III) (A) (M.D. Ga. 2002) (in a lawsuit
arising from an automobile accident, police report containing diagram of the accident
admissible under Fed.R.Evid. 803 (8) because it was prepared from the officer’s own
personal observation of the scene).
Accordingly, to the extent the police report references observations made by
the officer himself, the content of the police report is admissible, and the trial court
9
erred in finding that such constituted hearsay.5 Further, we cannot find that such error
was harmless where the trial court expressly noted in its order that “were [the
information contained in the police report] admissible, the [trial court] would find a
question of fact on the issue of negligence for causing the accident because the
officer’s depiction of the accident and the location of the debris describe one thing,
and the driver’s depiction of the accident describes another.” Accordingly, we vacate
the order as it relates to the issue of MARTA’s negligence for causing the accident
and remand for further proceedings.
Judgment affirmed in part, reversed in part, and remanded. Andrews, P. J., and
McFadden, J., concur.
5
We note that the police report contains out-of-court statements from third
parties made to the police officer during the investigation. As such out-of-court
statements have not been challenged, we express no opinion herein whether they
would be admissible through the police report at trial.
10