FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, 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
October 17, 2016
In the Court of Appeals of Georgia
A16A1441. RICHARDS v. ROBINSON.
MERCIER, Judge.
David Richards, the plaintiff in the underlying case, appeals the grant of
summary judgment to the defendant/appellee, Errol Robinson. Richards sued
Robinson (and other parties not involved in this appeal) in the State Court of
Gwinnett County, asserting a claim for negligence as a result of a traffic accident in
which the school bus being driven by Robinson collided with the vehicle being driven
by Richards. On appeal, Richards argues that the trial court erred by 1) finding that
Robinson demonstrated the absence of evidence to support an essential element of
Richards’s claim; 2) finding that Robinson presented evidence that negated an
essential element of Richards’s claim; 3) finding that vehicles traveling in Robinson’s
lane could lawfully proceed straight through the intersection in question rather than
turn right; 4) finding that Richards could not have relied on Robinson’s lane position
and turn signal; 5) reaching conclusions based on a particularly narrow and selective
reading of the depositions and a strict construction of the available evidence against
Richards as the non-moving party; and 6) not giving Richards notice or an
opportunity to respond to issues raised sua sponte by the trial court. For the reasons
that follow, we reverse the trial court’s order.
“A de novo standard of review applies to an appeal from a grant of summary
judgment, and we view the evidence, and all reasonable conclusions and inferences
drawn from it, in the light most favorable to the nonmovant.” McKissick v. Giroux,
272 Ga. App. 499 (612 SE2d 827) (2005) (citations and footnotes omitted). See
OCGA § 9-11-56 (c). “To prevail at summary judgment . . . the moving party must
demonstrate that there is no genuine issue of material fact and that the undisputed
facts, viewed in the light most favorable to the nonmoving party, warrant judgment
as a matter of law.” Lau’s Corp., Inc. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
“[S]ummary judgment is appropriate when the court, viewing all the facts and
reasonable inferences from those facts in a light most favorable to the non-moving
party, concludes that the evidence does not create a triable issue as to each essential
element of the case.” Id. at 495 (4).
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To state a cause of action for negligence in Georgia, the following
elements are essential: (1) A legal duty to conform to a standard of
conduct raised by the law for the protection of others against
unreasonable risks of harm; (2) a breach of this standard; (3) a legally
attributable causal connection between the conduct and the resulting
injury; and, (4) some loss or damage flowing to the plaintiff’s legally
protected interest as a result of the alleged breach of the legal duty.
Booth v. Quality Carriers, Inc., 276 Ga. App. 406, 408 (623 SE2d 244) (2005)
(citation and footnote omitted).
Viewed in the light most favorable to Richards, the record shows the following.
On the date in question, Richards was driving his vehicle westbound on Five Forks
Trickum Road, approaching the intersection with Ronald Reagan Parkway. He
intended to turn left onto southbound Ronald Reagan Parkway. Before turning he did
not see any oncoming traffic, but after he began turning left, he saw a school bus
(driven by Robinson) coming over a hill toward him, driving eastbound on Five Forks
Trickum Road.
The school bus was in the far right eastbound lane, which was marked “right
turn only.” That lane contained two right-hand turns; the first (the “first right turn”)
led to southbound Ronald Reagan Parkway, and the second (the “second right turn”)
led to northbound Ronald Reagan Parkway. That lane, in which the bus was traveling,
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was bordered on the left by a solid white line before its intersection with Ronald
Reagan Parkway at the first right turn. Between that intersection and the next
intersection at the second right turn, the lane was bordered on the left by intermittent
white lines. Richards deposed that he was unsure whether the traffic signal governing
his left-turn lane was a green arrow or a circular green light, but knew that his signal
was green; according to Robinson, the traffic signal governing the lane in which the
school bus was traveling was also green. It is undisputed that a sign located before
the first right turn indicated that vehicles in the right lane must turn right, and that
there was also a directional sign located before the first right turn depicting the
various lanes at the intersection.
Robinson was already in the far right lane before the first right turn, and his
right turn indicator was blinking. However, he intended to turn at the second right
turn and therefore go straight through the intersection past the first right turn.
Richards assumed that Robinson intended to turn right at the first right turn, where
Richards was starting to turn left. The ramps from their opposing directions formed
a “Y” as they merged onto southbound Ronald Reagan Parkway, and Richards paused
as he was turning left to allow the school bus to go ahead of him in the “Y” onto
Ronald Reagan Parkway. Robinson instead went straight, and he saw Richards’s
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vehicle in front of him when he was approximately 20 feet away. Robinson tried to
stop the school bus, but the bus struck Richards’s vehicle. Prior to the collision
Robinson was traveling approximately 30 miles per hour, and the speed limit was 45
miles per hour. None of the facts listed above are disputed.
The parties dispute, among other things, whether drivers in the far right lane
before the first right turn were required to turn at the first right turn, or were permitted
to continue straight through the intersection in that lane and then turn right at the
second right turn, and whether Robinson’s use of his right turn signal before the first
right turn when he was traveling straight through the intersection contributed to the
accident. Richards alleged in his complaint that Robinson was negligent when he
disregarded traffic signs and devices, failed to maintain a proper look-out, failed to
exercise due care, and traveled too fast for conditions. Robinson moved for summary
judgment, arguing that there was an absence of evidence to create a triable issue as
to the elements of a duty on his part and a breach of that duty. The trial court granted
summary judgment to Robinson, finding that he demonstrated that there was no
genuine issue of material fact as to any essential element of Richards’s claim, and that
Richards failed to point to specific evidence giving rise to a triable issue. The trial
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court further found that even if Robinson was negligent in engaging his turn signal
too soon, it could not have contributed to the collision.
We agree with Richards that the trial court erred in finding that Robinson
demonstrated the absence of evidence to support an essential element of Richards’s
claim, in finding that Robinson presented evidence that negated an essential element
of Richards’s claim, and in finding as a matter of law that a vehicle traveling in
Robinson’s lane could lawfully proceed straight through the intersection rather than
turn right. Robinson argued to the trial court, and argues to this Court, that he was
permitted to turn right at either the first right turn or the second right turn, and in
support of this argument he has argued that the road signs permitted drivers to turn
right at the first right turn or the second right turn; that the word “only” in the
crosswalk at the first right turn did not indicate that drivers were required to turn right
at the first right turn, but instead indicated that drivers must turn right at either of the
right turns, because it was part of a larger pattern applicable to the lane in question,
and it was located beyond the first right turn; that the solid white line on the left
border of the far right lane prohibited drivers from changing lanes, rather than
required them to make the first right turn, pursuant to OCGA § 40-6-48 (5); and that
contrary to Richards’s assertion, there were no “hatch marks” in the crosswalk that
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would have required drivers to turn at the first right turn. Robinson has also argued
that pursuant to OCGA § 40-6-21 (a) (1) (A), because the traffic signal applicable to
his lane was green, he was permitted to travel straight through the intersection and
had the right of way to do so. However, Robinson’s arguments are not sufficient to
pierce Richards’s pleadings.
Piercing a plaintiff’s pleadings on a motion for summary judgment, “i.e.,
demonstrating that plaintiff will be unable to prevail at trial, even when all doubts are
resolved in favor of the plaintiff, because there is no issue of material fact as to at
least one essential element of the plaintiff’s prima facie case,” can be accomplished
by one of two means. Garrett v. Nationsbank, N.A. (South), 228 Ga. App. 114, 115
(491 SE2d 158) (1997). The defendant may
1) . . . [present] evidence which negates an essential element of
plaintiff’s claim, i.e., affirmatively disproving the element with evidence
which makes it impossible for the plaintiff to prove the element at trial,
or 2) . . . [show] an absence of evidence to support the plaintiff’s case as
to an essential element. . . . However, a defendant may not prevail
simply by presenting contradictory evidence, as such evidence serves
only to create an issue for jury resolution.
Id. (citations and punctuation omitted). See also Davis v. Piedmont Hosp., 222 Ga.
App. 97 (473 SE2d 531) (1996).
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Here, Richards has presented evidence as to the elements of breach and duty,
including, most notably, the existence of a road sign before the first right turn
indicating that vehicles in the right lane must turn right. While Robinson presented
his interpretation of the signs and the markings on the roadway, Richards argues that
those signs and markings give rise to other reasonable interpretations as well.
Specifically, he argues that the directional sign relied on by Robinson merely
indicates in which direction each lane leads; that drivers who intend to turn onto
Ronald Reagan Parkway at the second right turn must enter the right turn lane after
the intersection at the first right turn; that the intermittently-bordered area of the lane
beyond the first right turn is the appropriate area to enter the lane to turn at the second
right turn; and that the word “only” in the crosswalk at the first right turn indicates
that drivers must turn right at that intersection.
Robinson has pointed to no law demanding judgment in his favor as to duty,
and has merely presented contradictory evidence, which gives rise to a jury issue.
There is sufficient evidence such that it is not impossible for Richards to prove
Robinson’s duty and breach of that duty at trial, and Robinson has not shown an
absence of evidence to support Richards’s case as to these elements. See Garrett,
supra. Because there is a triable issue as to those elements, and Robinson has not
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shown that he is entitled to judgment as a matter of law, the grant of summary
judgment to Robinson was error. See Lau’s Corp., Inc., supra.
The trial court’s order granting summary judgment to Robinson in this case is
therefore reversed. Because we reverse on this basis, we need not address Richards’s
remaining enumerations of error.
Judgment reversed. Ellington, P. J., and Branch, J., concur.
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