FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
July 28, 2015
In the Court of Appeals of Georgia
A15A0265. BROWN v. DEKALB COUNTY et al. BO-012
A15A0267. LITTLE et al. v. DEKALB COUNTY et al. BO-013
BOGGS, Judge.
Quintez Brown and Kimberly Little, individually, and as legal guardian and
natural parent of her four minor children, filed personal injury actions against DeKalb
County (“the County”) and others as a result of a collision involving a DeKalb
County fire truck. On appeal, they contend that the trial court erred by granting
summary judgment in favor of the County. For the reasons explained below, we
disagree and affirm.
“On appeal from the denial of summary judgment the appellate court is to
conduct a de novo review of the evidence to determine whether there exists a genuine
issue of material fact, and whether the undisputed facts, viewed in the light most
favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation and
punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see
OCGA § 9-11-56 (c).
So viewed, the evidence shows that on May 3, 2011, Brown was driving a car
in which Little and her three children were passengers when it collided with a DeKalb
County Fire Department truck. Brown and Little testified that they never saw or heard
the fire truck before the collision. The driver of the fire truck never saw Brown’s car
before the collision, while two fire truck passengers saw it just before the impact and
had no time to give a warning.
The testimony conflicts as to whether the car driven by Brown struck the fire
truck as Brown entered the intersection with a green light or whether the fire truck
struck Brown as it entered the intersection against a red light. Brown and Little claim
the fire truck struck them, while all other witnesses stated that the car driven by
Brown struck the fire truck. Little testified that the car was at a standstill immediately
before the impact, while Brown testified that he had just started to proceed when the
fire truck struck his car. According to the driver and two passengers of the fire truck,
the fire truck entered the intersection with its lights and siren activated when all
traffic was stopped and the intersection was clear. An accident reconstruction expert
2
averred in an affidavit that, based upon data retrieved from Brown’s car, it traveled
at a constant speed of 29 mph for 213 feet without any braking immediately prior to
impact.
It is undisputed that at the time of the accident, the fire truck was responding
to an emergency call and was blowing an air horn at the time it entered the
intersection. Two firefighters averred in an affidavit that the flashing red emergency
lights on the fire truck “were visible from a much greater distance than 500 feet” at
the time of the accident. Witnesses disagreed about how hard it was raining at the
time of the accident. Brown and Little both testified that it was “pouring down
raining,” while the fire truck driver testified that it was “slightly raining.”
Evidence regarding the speed of the fire truck at the time of the impact also
conflicts. Occupants of the fire truck and an independent witness testified that the fire
truck was moving at a slow rate of speed at the time of the impact. While Little did
not see the fire truck before the impact, she testified that she was “guesstimating” that
it was traveling 60 to 70 mph based upon how the impact felt and the fact that the
car’s air bag deployed. She did not see the damage to the fire truck after the collision
and acknowledged that she did not have any training in engineering or accident
reconstruction and had never before been hit by a vehicle traveling 60 to 70 mph.
3
Brown and Little contend on appeal that a jury should be allowed to decide the
following issues: (1) “whether it was reasonable for the emergency vehicle to have
entered the intersection when the light was red when there was a torrential rain at the
time of the collision”; (2) “whether the DeKalb County fire truck entered the
intersection with their audible signal and flashing red lights”; and (3) whether the
“fire truck was authorized to enter[] the intersection when the light was red based
upon the exception provided under Code section OCGA § 40-6-6.” We disagree.
We start our analysis with a well-established principle: “That an accident
occurred and a plaintiff suffered injury establishes no basis for recovery unless the
plaintiff comes forward with evidence showing that the accident was caused by the
defendant’s negligence.” (Citations and punctuation omitted.) Morton v. Horace
Mann Ins. Co., 282 Ga. App. 734, 736 (1) (639 SE2d 352) (2006). In order to
examine whether appellants presented evidence that the driver of the fire truck was
negligent, we must examine the following provisions of OCGA § 40-6-6:
(a) The driver of an authorized emergency vehicle or law enforcement
vehicle, when responding to an emergency call, when in the pursuit of
an actual or suspected violator of the law, or when responding to but not
upon returning from a fire alarm, may exercise the privileges set forth
in this Code section.
4
(b) The driver of an authorized emergency vehicle or law enforcement
vehicle may: . . . (2) Proceed past a red or stop signal or stop sign, but
only after slowing down as may be necessary for safe operation; . . .
(c) The exceptions granted by this Code section to an authorized
emergency vehicle shall apply only when such vehicle is making use of
an audible signal and use of a flashing or revolving red light visible
under normal atmospheric conditions from a distance of 500 feet to the
front of such vehicle. . . .
(d)(1) The foregoing provisions shall not relieve the driver of an
authorized emergency vehicle from the duty to drive with due regard for
the safety of all persons. . . .
(3) The provisions of this subsection shall apply only to issues of
causation and duty and shall not affect the existence or absence of
immunity which shall be determined as otherwise provided by law.
The direct evidence before the trial court shows that the fire truck was
responding to an emergency call while using an audible signal and flashing red
emergency lights visible from a distance of 500 feet at the time of the accident.
Brown and Little assert that their testimony that it was “pouring down raining” and
that they failed to see or hear the fire truck before the collision creates genuine issues
5
of material fact regarding whether the privilege afforded by OCGA § 40-6-6 could
be exercised. Again, we disagree.
In ruling on a motion for summary judgment, a finding of fact that may
be inferred from, but is not demanded by, circumstantial evidence has
no probative value against positive and uncontradicted evidence that no
such fact exists, provided that the circumstantial evidence may be
construed consistently with the direct evidence.
(Citation and punctuation omitted.) Brown v. GeorgiaCarry.Org, Inc., 331 Ga. App.
890, 894 (770 SE2d 56) (2015). The fact that Brown and Little did not see or hear the
fire truck before the collision and that it was raining provides circumstantial evidence
to support an inference that the fire truck may not have been using an audible signal
and flashing red lights, but this inference is not demanded from their testimony.
Because Brown and Little’s testimony can be construed consistently with the direct
evidence that the fire truck was using an audible signal and flashing red lights visible
from a distance of 500 feet, it is insufficient to create a genuine issue of material fact
on the applicability of OCGA § 40-6-6. See id. at 895. Moreover, “[n]egligence is not
to be presumed, but is a matter for affirmative proof. In the absence of some
affirmative proof of negligence, we must presume performance of duty and freedom
6
from negligence.” (Citation and punctuation omitted.) Purvis v. Steve, 284 Ga. App.
116, 118 (1) (643 SE2d 380) (2007).
Little’s testimony that the fire truck was traveling 60 to 70 mph at the time of
impact also fails to create a genuine issue of material fact as to negligence on the part
of the County. Lay opinion lacking a proper foundation cannot be considered when
ruling upon a summary judgment motion. Jordan v. Atlanta Replex Corp., 228 Ga.
App. 670, 674 (a) (492 SE2d 536) (1997) (physical precedent only). OCGA § 24-7-
701 (a) (1) provides that a lay “witness’s testimony in the form of opinions or
inferences shall be limited to those opinions or inferences which are [] [r]ationally
based on the perception of the witness.” Here, Little’s testimony that the car was
traveling 60 to 70 mph could not be rationally based on her perception of how the
impact felt. She acknowledged that she had never before been hit by a car traveling
at that speed and that she was not an expert in accident reconstruction.
In a case decided under Ga. Code §38-1708, recodified in 1980 as OCGA § 24-
9-65,1 this court noted that “[e]vidence as to speed based only on the feeling of impact
has been held inadmissible. [Cit.]” Boatner v. Sims, 115 Ga. App. 284, 286 (5) (154
1
This former Code section provided: “Where the question under examination,
and to be decided by the jury, shall be one of opinion, any witness may swear to his
opinion or belief, giving his reasons therefor.”
7
SE2d 282) (1967). We therefore held that a plaintiff’s testimony about speed formed
solely from the force of the impact lacked a proper foundation and could not be
considered. Id.
While lay opinion testimony about the speed of a vehicle is generally
“quintessential Rule 701 opinion testimony,” Asplundh Mfg. Div. v. Benton Harbor
Eng., 57 F. 3d 1190, 1197 (II) (A) (3rd Cir. 1995), superseded on other grounds,
Estate of Knoster, 200 Fed. Appx. 106, 111 n. 3 (3rd Cir. 2006), such testimony is
nonetheless “inadmissible absent an adequate factual foundation demonstrating a
rational link between the witness’ observations and her ultimate testimonial
conclusions.” Felton v. Felton, 1999 U.S. App. LEXIS 12081 at *7 (II) (4th Cir.
1999). Here, no rational link exists between Little’s perception of the force of the
impact and her testimony about a particular speed for a fire truck that she never saw
in motion.2
2
Our opinions in Western & Atlantic R. v. Thompson, 38 Ga. App. 599 (144
SE 831) (1928), and Rentz v. Collins, 51 Ga. App. 783 (3) (181 SE 678) (1935) do not
mandate a different result as they are factually distinguishable. In Western & Atlantic
R., the lay witness saw the train after it struck him and observed “the distance the
train ran after striking him before stopping.” 38 Ga. App. at 599. In Rentz, the
witness’s testimony was based upon more than just how the force of the impact felt.
Specifically, that the witness’s estimate of speed was based upon his familiarity with
the speed of automobiles when he saw them running, the weight of his car which was
struck by the defendant’s car, and the way the defendant’s car “dragged” his car after
8
Based upon the direct evidence that the fire truck was authorized under OCGA
§ 40-6-6 to enter the intersection against the red light and the absence of any evidence
showing negligence on the part of the fire truck operator, we affirm the trial court’s
grant of summary judgment to the County.
Judgment affirmed. Doyle, C. J. and Phipps, P. J., concur.
the collision. 51 Ga. App. at 783. In contrast, here, Little’s testimony was based solely
upon how the collision felt in her chest.
9