Ken Thomas of Georgia, Inc. v. Halim

ADAMS, Judge,

dissenting.

Although the majority correctly concludes that a jury should determine whether the accident in this case was caused by a steering or other malfunction, I disagree that the evidence of negligent repair or maintenance was insufficient to withstand summary judgment and that, therefore, the trial court’s order denying Ken Thomas’s motion for summary judgment should be reversed.

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the trial court should give the party opposing the motion the benefit of all reasonable doubt and should construe the evidence and all inferences and conclusions therefrom most favorably toward that party. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). When appellate courts review the grant or denial of a motion for summary judgment, we conduct a de novo review *576of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

Keller v. Henderson, 248 Ga. App. 526, 527 (1) (545 SE2d 705) (2001).

Giving the benefit of all reasonable doubt to Halim and construing the evidence and all reasonable inferences and conclusions drawn from it in his favor, the evidence shows that there had been problems with the car prior to the accident. According to the evidence, the car was wrecked and extensively damaged when it was new and before it was ever sold off the lot. The car was repaired, and evidence was presented that the left rear knuckle was replaced, although there is some discrepancy in the record about whether this repair was actually completed. Ken Thomas then sold the car without telling the buyer that it had been previously wrecked, but bought the car back because the buyer was “not happy” with it. After the car was returned, Ken Thomas used it as a loaner car for its customers and employees. As the trial court noted, the record contains at least two subsequent complaints by different customers about problems with the car, specifically about a noise coming from the tires. The wheels were replaced after the first complaint and the left wheel bearing was replaced after the second.

Ken Thomas presented several affidavits in support of its motion for summary judgment. AKen Thomas mechanic averred that the car had been properly maintained and that it “appeared” that the left rear knuckle had been replaced after the first accident and the left rear wheel bearing had been replaced in response to a customer complaint. The mechanic averred that although the wheel bearing and knuckle allow the wheel to turn, a malfunction with those parts would not cause the steering to be uncontrollable.

Although Ken Thomas argues that this affidavit demands the conclusion that summary judgment should be granted in its favor, the trial court found that this and the other expert affidavit Ken Thomas submitted in support of its motion for summary judgment merely set forth the opinion of the affiants, and that the following issues should be resolved by a jury: (1) was the wreck caused by Campbell’s negligence or mechanical failure; (2) in light of the various mechanical problems with the loaner car in the past, was Ken Thomas negligent in loaning the car to Campbell, failing to warn Campbell of its condition and failing to maintain, inspect and repair the vehicle; (3) did Ken Thomas fail to use ordinary care. I agree that these issues should be resolved by a jury.

The car was declared a total loss by Ken Thomas’s insurer after the accident, and although the car was apparently examined by the insurer, it does not appear that either party conducted a post-accident *577examination that would conclusively establish or conclusively disprove whether a mechanical defect caused the accident. Cf. Aldridge v. King’s Colonial Ford, 250 Ga. App. 236, 237 (550 SE2d 439) (2001) (post accident inspection revealed that nothing was wrong with the brakes, although driver of vehicle had testified that the accident occurred because of brake failure). As the trial court found, the evidence concerning the cause of the accident was conflicting. Campbell testified that the accident occurred because the steering became uncontrollable, and he denied that anything he did while driving the vehicle caused the accident. Ken Thomas submitted an affidavit containing the opinion that the accident occurred due to Campbell’s carelessness and fast driving. As the majority correctly concludes, summary judgment on this issue was properly denied. Morris v. Pulliam, 168 Ga. App. 442, 445-446 (2) (309 SE2d 423) (1983); Griffin v. Bremen Steel Co., 161 Ga. App. 768, 772 (288 SE2d 874) (1982).

Moreover, I do not think the evidence Ken Thomas submitted from its mechanic concerning the maintenance and repair history of the car demanded that summary judgment be granted. See Lockhart v. Beaird, 128 Ga. App. 7, 9 (195 SE2d 292) (1973). Evidence was presented that the car had been extensively damaged in a previous accident, that it had been returned after being sold because the buyer was “not happy” with the car, and that other customers who had used the car complained about wheel noise when the car turned. “Summary judgment is improper when circumstantial evidence is inconsistent with the direct evidence; in such a case, a jury question is created.” Dial v. Natalizi, 246 Ga. App. 97, 99 (539 SE2d 617) (2000). This car was at all times under the control of Ken Thomas, and the question of whether the car was properly repaired and maintained and should have been loaned out was, as the trial court held, for the jury to determine.

“It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. The situation is best summed up by the language of Justice Bleckley speaking for the court, in Brown v. Matthews, 79 Ga. 1 (4 SE 13) [(1887)]: Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.” (Citations and punctuation omitted.) McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 183 (2) (129 SE2d 408) [(1962)]. From this *578perspective, it is preferable not to have a single trial judge stand in the shoes of the several men and women of various backgrounds who make up a jury and determine what inferences they may draw from the evidence. It is for this reason that trial judges should grant a motion for summary judgment ... only where the evidence is truly clear, palpable and undisputed. Pique v. Lee, 218 Ga. App. 357, 359 (461 SE2d 302) [(1995)].
Decided March 25, 2004 Swift, Currie, McGhee & Pliers, Charles B. Marsh, Anandhi S. Rajan, for appellant. Slater & King, Cary S. King, for appellee.

Service Merchandise v. Jackson, 221 Ga. App. 897, 898-899 (1) (473 SE2d 209) (1996). The trial court’s order denying Ken Thomas’s motion for summary judgment should be affirmed, and a jury allowed to resolve the issues presented in this case.

I am authorized to state that Judge Barnes and Judge Eldridge join in this dissent.