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Marshall v. Penland

United States District Court, S.D. Georgia, Augusta Division

April 27, 2015

THOMAS MARSHALL, Plaintiff,
v.
TIFFANY ANN PENLAND, Defendant.

ORDER

J. RANDAL HALL, District Judge.

Before the Court is Defendant's motion for summary judgment. (Doc. no. 11.) For the reasons stated herein, the motion is GRANTED.

I. BACKGROUND

This diversity suit arises out of a collision between an automobile and a bicycle in Augusta, Georgia.

A. The Intersection of 13th Street and D'Antignac Street

At approximately 8:00 a.m. on November 3, 2012, Defendant, a resident of South Carolina, drove her car out of the University Hospital parking deck in Augusta, Georgia, then turned left onto 13th Street. (Def. Dep. at 31.) That portion of 13th Street has two northbound lanes, two southbound lanes, and a speed limit of thirty-five miles per hour. (Id.) As Defendant turned left out of the parking deck and onto 13th Street, she entered the right, northbound lane. (Id.) Weather conditions were clear and the road surface was dry. (Id.; King Decl. 17.) The parking deck is located one block south of the intersection of 13th Street and D'Antignac Street. (Id.) At that intersection, traffic on 13th Street has the right of way and proceeds under a flashing yellow light. (King Decl. ¶ 8.) Traffic on D'Antignac Street is required to come to a stop pursuant to a flashing red light and a stop sign before crossing the intersection, thus yielding the right of way to thru-traffic on 13th Street. (Id.; see Id., Exs. 1 & 2.)

Defendant approached the intersection at a lawful speed, was not using her telephone nor was she otherwise distracted. (Def. Dep. at 34.) She then saw Plaintiff standing on the sidewalk straddling a bicycle near the curb on the far side of the intersection. (Id. at 35.) She slowed her vehicle and entered the intersection. (Id.) Plaintiff then left the sidewalk, entered Defendant's lane, and attempted to cross the street. (Id.; King Decl. ¶ 10.) Although he was near the intersection, he was not in or near a crosswalk when he proceeded without a helmet into the right of way of oncoming traffic. (King Decl. ¶ 10.)

B. Whether Plaintiff Was Walking or Riding a Bicycle

Plaintiff has been inconsistent on whether he was walking across the street, pushing his bicycle across the street, or riding his bicycle across the street. His medical records show that he informed emergency personnel and medical staff numerous times after the accident that he was riding his bicycle when Defendant's vehicle struck him. (Doc. no. 11-5.) However, Plaintiff alleges in his complaint that he was a pedestrian, asserts in discovery responses that he was attempting to walk his bicycle across the street, and testifies in his deposition that he recalls only standing on the sidewalk then waking up in a hospital recovery room later that day. (Compl. ¶ 4; doc. no. 11-4; Pl. Dep. at 26, 30.) In response to Defendant's motion for summary judgment, Plaintiff acknowledges that he has no recollection of the events surrounding the collision and concedes that he was riding his bicycle across 13th Street. (Doc. no. 13.)

Defendant's position on this factual issue has been the same from the outset and is consistent with other evidence. In her deposition, she testifies that she saw Plaintiff straddling his bicycle on the sidewalk as she approached, then saw him ride his bicycle from the sidewalk into the street. (Def. Dep. at 39.) Corporal Thomas King from the Richmond County Sheriff's Office, who responded to the accident, concluded that Plaintiff was attempting to ride his bicycle westward across 13th Street. (King Decl. ¶ 5.)

C. The Collision

Defendant swerved from the right outside lane to the left inside lane to avoid hitting Plaintiff, but nonetheless struck and injured him. (Id.) Corporal King determined that Plaintiff was at fault for failure to yield the right of way to Defendant's vehicle and is unaware of any actions or omissions by Defendant which were contributing factors to the accident. (Id. ¶ 11 & Ex. 3.) Other than Plaintiff and Defendant, Corporal King was unable to locate any witnesses. (Id. ¶ 9.) Plaintiff, a seventy-eight year old male resident of Georgia, incurred approximately $88, 000.00 in medical expenses as a result of the collision. (Compl. ¶¶ 4-6.)

D. Procedural History

On April 29, 2014, Plaintiff filed a tort claim against Defendant in the state court of Richmond County, Georgia. On June 20, 2014, Defendant removed the action to this Court, then filed a motion for ...


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