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Head v. Souse

Court of Appeals of Georgia, First Division

November 18, 2019

HEAD
v.
DE SOUSE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Barnes, Presiding Judge.

         This personal injury case arises out of an automobile accident in which Katherine Glynn Head struck Jadilson Silva de Souse and his dog as they were walking across a parking lot entrance. De Souse sued Head for negligence and sought compensatory and punitive damages. Head answered, denying liability, and asserted an act of God defense. Following discovery, the trial court entered an order denying Head's motion for summary judgment as to de Souse's punitive damages claim and granting de Souse's motion for summary judgment as to Head's act of God defense. Head appeals these summary judgment rulings. For the reasons discussed below, we reverse the trial court's denial of Head's motion for summary judgment on de Souse's punitive damages claim, and we affirm the court's grant of de Souse's motion for summary judgment on Head's act of God defense.

         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). "Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met." Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779) (2010). In reviewing the grant or denial of summary judgment, we "view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Id.

         So viewed, the record reflects that on the afternoon of February 4, 2016, Head, who was then 16 years old, was driving from her high school to the Costco on Windsor Parkway. De Souse was walking his dog on the sidewalk near the Costco. As Head made a right turn into the Costco parking lot, she struck de Souse and his dog as they were walking across the parking lot entrance. The police arrived on the scene, and Head was issued a citation for failure to yield to a pedestrian. As a result of his injuries, de Souse was transported to the hospital by ambulance. De Souse subsequently had surgery on his knee and was unable to work after the accident. His dog also sustained injuries.

         After de Souse sued Head for negligence, discovery ensued. In her deposition, Head testified there were trees on both sides of the street leading up to the entrance of the Costco parking lot that obscured her view as she was driving. Head further testified that when she made the right turn into the Costco parking lot, the sun temporarily blinded her from seeing de Souse and his dog in the crosswalk. However, Head acknowledged that she had been to the same Costco approximately 15 times before the accident, had used the same entrance on those prior occasions, and had previously driven to Costco "on sunny days." Head testified that before the accident, she had been driving for about 25 minutes, and the sun had been bothering her during the trip. Head admitted that she owned three pairs of sunglasses and had used them in the past when driving during sunny weather conditions, but she did not have them with her that day. Head also testified that she had failed to use her sun visor during the trip, which would have helped block the sun.

         Also during her deposition, Head admitted to calling her father and texting on her cell phone during her trip to Costco, and she acknowledged that it was illegal under Georgia law for her to do so.[1] But Head testified that her father did not answer the phone call, that she only texted while stopped at red lights, and that she was not using her phone at the time of the accident. Head testified that her driver's license had never been suspended or revoked, she had never been arrested, she had never been in a prior motor vehicle accident, and she had no prior traffic citations other than the one she received in this case.

         Among other claims and defenses in the litigation, de Souse sought punitive damages based on Head's texting and driving, and Head asserted as an affirmative defense that the accident was the result of an act of God. De Souse moved for summary judgment as to Head's act of God defense, [2] and Head moved for summary judgment as to de Souse's punitive damages claim. The trial court granted summary judgment to de Souse on Head's act of God defense, concluding that the bright sunlight encountered by Head when turning into the parking lot was not an unpredictable natural catastrophe. The trial court denied summary judgment to Head on de Souse's punitive damages claim, stating that the issue of punitive damages is normally for the jury and that "[t]here exists no guaranty that the jury would not be able to grant such damages based on whatever facts are presented at trial."

         1. Head contends that the trial court erred in denying her motion for summary judgment on de Souse's punitive damages claim. We agree.

         To prevail on summary judgment, "a defendant who will not bear the burden of proof at trial need not affirmatively disprove the [plaintiff's] case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the [plaintiff's] case." Cox Enterprises v. Nix, 274 Ga. 801, 804 (2) (560 S.E.2d 650) (2002). "Where a defendant moving for summary judgment discharges this burden, the [plaintiff] cannot rest on [his] pleadings, but rather must point to specific evidence giving rise to a triable issue." (Citation and punctuation omitted.) Cowart, 287 Ga. at 623 (1) (a).

          Guided by these principles, we turn to our law concerning punitive damages and its particular application in automobile accident cases. Punitive damages are authorized "only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." OCGA § 51-12-5.1 (b).

And it is well settled that negligence, even gross negligence, is inadequate to support a punitive damages award. Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. In cases involving automobile collisions, punitive damages are authorized when the accident results from a pattern or policy of dangerous driving, such as excessive speeding or driving while intoxicated, but not when a driver simply violates a rule of the road.

(Citations and punctuation omitted.) Lindsey v. Clinch County Glass, 312 Ga.App. 534, 535 (718 S.E.2d 806) (2011). See Brooks v. Gray, 262 Ga.App. 232, 233 (1) (585 S.E.2d 188) (2003).

         In his brief opposing Head's motion for summary judgment, de Souse argued that the evidence that Head was talking and texting on her cell phone in violation of Georgia law during her trip leading up to when she struck him and his dog would support an award of punitive damages.[3] But motor vehicle and traffic-related violations that are not the proximate cause of the automobile accident in question generally will not support an award of punitive damages.[4] See Doctoroff v. Perez, 273 Ga.App. 560, 561-562 (615 S.E.2d 623) (2005) (defendant's action of driving without a valid license was not proximate cause of accident and therefore did not support punitive damages claim); Brooks, 262 Ga.App. at 233 (2) (fact that 16-year-old defendant was driving in early morning hours, even though his license did not permit him to drive between the hours of 1:00 a.m. and 5:00 a.m., could not support punitive damages award, given that his "driving after 1:00 a.m. was not the proximate cause of the accident; rather, it was his crossing the centerline that caused the accident"). And, here, Head testified that she was not using ...


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