Negligence. DeKalb State Court. Before Judge Ross.
Nathaniel J. Middleton, James O. Greason, for appellants.
Levy & Pruett, Susan J. Levy, for appellees.
Quintez Brown and Kimberly Little, individually, and as legal guardian and natural parent of her three minor children, filed personal injury actions against DeKalb County (" the County" ) and others as a result of a collision involving a DeKalb County fire truck. On appeal, they contend that the trial court erred by granting summary judgment in favor of the County. For the reasons explained below, we disagree and affirm.
On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 S.E.2d 31) (2010); see OCGA § 9-11-56 (c).
So viewed, the evidence shows that on May 3, 2011, Brown was driving a car in which Little and her three children were passengers when it collided with a DeKalb County Fire Department truck. Brown and Little testified that they never saw or heard the fire truck before the collision. The driver of the fire truck never saw Brown's car [333 Ga.App. 442] before the collision, while two fire truck passengers saw it just before the impact and had no time to give a warning.
The testimony conflicts as to whether the car driven by Brown struck the fire truck as Brown entered the intersection with a green light or whether the fire truck struck Brown as it entered the intersection against a red light. Brown and Little claim the fire truck struck them, while all other witnesses stated that the car driven by Brown struck the fire truck. Little testified that the car was at a standstill immediately before the impact, while Brown testified that he had just started to proceed when the fire truck struck his car. According to the driver and two passengers of the fire truck, the fire truck entered the intersection with its lights and siren activated when all traffic was stopped and the intersection was clear. An accident reconstruction expert averred in an affidavit that, based upon data retrieved from Brown's car, it traveled at a constant speed of 29 mph for 213 feet without any braking immediately prior to impact.
It is undisputed that at the time of the accident, the fire truck was responding to an emergency call and was blowing an air horn at the time it entered the intersection. Two firefighters averred in an affidavit that the flashing red emergency lights on the fire truck " were visible from a much greater distance than 500 feet" at the time of the accident. Witnesses disagreed about how hard it was raining at the time of the accident. Brown and Little both testified that it was " pouring down raining," while the fire truck driver testified that it was " slightly raining."
Evidence regarding the speed of the fire truck at the time of the impact also conflicts. Occupants of the fire truck and an independent witness testified that the fire truck was moving at a slow rate of speed at the time of the impact. While Little did not see the fire truck before the impact, she testified that she was " guesstimating" that it was traveling 60 to 70 mph based upon how the impact felt and the fact that the car's air bag deployed. She did not see the damage to the fire truck after the collision and acknowledged that she did not have any training in engineering or accident reconstruction and had never before been hit by a vehicle traveling 60 to 70 mph.
Brown and Little contend on appeal that a jury should be allowed to decide the following issues: (1) " whether it was reasonable for the emergency vehicle to have entered the intersection when the light was red when there was a torrential rain at the time of the collision" ; (2) " whether the DeKalb County fire truck entered the intersection with their audible signal and flashing red lights" ; and (3) whether the " fire truck was authorized to enter[ ] the intersection when the light [333 ...