Holley v. Smallwood

Carley, Judge.

On October 23, 1980, a truck owned by appellee-defendant Apac-Georgia, Inc. and being operated by its employee, appellee-defendant Smallwood, collided with a truck being driven by appellant-plaintiff Holley. Appellant’s vehicle was overturned, and he was treated at a hospital emergency room and released. About three weeks after the collision, appellant began to experience seizures which continued for the next year and one-half. In May of 1982, appellant was diagnosed as having astrocytoma brain tumor, a malignant cancer. The tumor was surgically removed and, since then, he has had no seizures.

Appellant filed the instant action alleging that appellee Smallwood’s negligence had caused the collision. Appellant further alleged that he had incurred trauma to his head during the collision, and that he suffered epileptic seizures and depression as a result. Ap-pellees moved for summary judgment. The trial court granted the motion, concluding that there was insufficient evidence upon which a jury could find a causal relation between the collision and appellant’s alleged injuries and that, even if such evidence existed, there was no evidence of any damage to appellant. It is from this order that appellant brings the instant appeal.

On motion for summary judgment, the evidence is to be construed most strongly in favor of the non-moving party and most strongly against the movant. When this is done in the instant case, the record clearly demonstrates sufficient expert testimony as to the probability of the effect of the collision on the condition exhibited by appellant. See Nat. Dairy Prods. Corp. v. Durham, 115 Ga. App. 420, 422-423 (154 SE2d 752) (1967) (discussing the distinction between “probability” and “possibility”). Dr. Reitt, an expert witness for appellant, testified that “in some way the trauma made him more disposed to have seizures at the time,” and that the collision “probably did have some effect [on the tumor].” Dr. Davis, another expert witness for appellant, stated that “the accident was one of the ‘mul-tifactoral’ causes of plaintiff’s dépression.”

Moreover, Dr. Davis was specifically asked the following *366question:

“Q: Okay. So are you saying it is possible that he had the post traumatic neurosis aside from the tumor and the medication for the tumor and the surgery, or that it’s probable?
A: I think it’s probable, and mixed with all those other factors.” (Emphasis supplied.)

In his deposition, Dr. Reitt responded to a question with regard to possibilities versus probabilities as follows:

“Now, the only thing is one cannot dismiss the fact that he had an abnormal symptom develop three weeks after an automobile accident and had had no apparent trouble prior to that time. And I don’t think no matter what we do we can throw that away. It is common sense to therefore assume in some way the seizure threshold of his neurons was affected by the trauma, albeit it may have injured the tumor that may have been there . . . .” Dr. Reitt also testified that he thought “it is likely that the trauma aggravated a pre-existing condition to some degree.” (Emphasis supplied.) Finally, Dr. Reitt testified that he “would really think it probably did have some effect, simply because of the fact that you have three weeks and something changed in this boy. He was doing fine until he had this wreck, and three weeks later he had a seizure.” (Emphasis supplied.)

Only if the expert evidence produced by appellant is ignored totally or if that evidence is unfavorably weighed as against the expert evidence produced by appellees would the trial court’s order be correct. On summary judgment, neither can be done. See generally Griffin v. Bremen Steel Co., 161 Ga. App. 768, 770 (2) (288 SE2d 874) (1982). Summary judgment was improperly granted.

Judgment reversed.

Banke, C. J., Deen, P. J., McMurray, P. J., Birdsong. P. J., Sognier, Pope, and Benham, J. J., concur. Beasley, J., dissents.