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Whole Foods Mkt. Group, Inc. v. Shepard

Court of Appeals of Georgia

July 14, 2015

WHOLE FOODS MARKET GROUP, INC. et al.
v.
SHEPARD

Negligence. Fulton State Court. Before Judge Porter.

Swift, Currie, McGhee & Hiers, Terry O. Brantley, Alicia A. Timm, for appellants.

Goldstein & Hayes, James A. Goldstein, Jared M. Lina; Christopher J. Adams, for appellee.

MCFADDEN, Judge. Barnes, P. J., Ellington, P. J., and Phipps, P. J., concur in the judgment only; Dillard, Ray, and McMillian, JJ., dissent.

OPINION

Page 617

McFadden, Judge.

On January 30, 2010, a truck driven by Whole Foods Market Group, Inc. employee Kevin Hulsey struck a car driven by Richard Shepard as Hulsey was attempting to change lanes on Interstate 75. Shepard brought a personal injury action against Whole Foods and Hulsey alleging that Hulsey was negligent per se for violating the provision of the Uniform Rules of the Road requiring that a " vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety[.]" OCGA § 40-6-48 (1). The trial court granted Shepard's motion for partial summary judgment on issues of negligence, proximate cause, and liability, and Whole Foods and Hulsey appeal. They argue that the trial court misapplied the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 S.E.2d 680) (1986), to disregard some of Hulsey's sworn testimony, and that genuine issues of material fact preclude summary judgment. We find no error in the trial court's application of the Prophecy rule, and we find that, disregarding the conflicting

Page 618

portions of Hulsey's testimony, the evidence authorized the trial court's grant of summary judgment to Shepard. Accordingly, we affirm.

1. Facts.

On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is a genuine issue of material facts and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Dogan v. Buff, 329 Ga.App. 499 (765 S.E.2d 674) (2014) (citation omitted).

So viewed, the evidence showed that both Hulsey and Shepard were traveling south on the interstate when the front right wheel of Hulsey's truck struck the rear left wheel of Shepard's car, causing the car to spin out of control and collide twice more with the truck. Neither driver saw the other before the collision occurred. Shepard testified that immediately before the collision he was driving completely within his lane of travel with no intention of changing lanes. Hulsey testified that he had just begun to change lanes when he felt the impact of the collision, and that before changing lanes he had checked his mirrors and seen no vehicles.

[333 Ga.App. 138] 2. Application of Prophecy rule.

In an affidavit filed in opposition to summary judgment, Hulsey testified that, although he was beginning to change lanes, he had not yet moved out of his own lane of travel at the time of the collision. Shepard argued to the trial court that she should disregard this testimony under the Prophecy rule, see Prophecy Corp. v. Charles Rossignol, Inc., supra, 256 Ga. 27, because it contradicted Hulsey's earlier deposition testimony. Although the trial court did not expressly address this issue in her summary judgment order, her ruling in Shepard's favor implies that she ...


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