Beringause v. Fogleman Truck Lines, Inc.

Beasley, Judge,

dissenting.

1. I respectfully dissent because the trial court did not err in charging the jury on assumption of the risk, the ruling on which is made in Division 4 of the majority opinion.

The court’s charge, which was nearly verbatim the pattern charge, was: “When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, he or his predecessor cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of such other person.”

Defendants’ theory with respect to this principle was not that plaintiff’s decedent failed to avoid the risk when the tractor-trailer swerved across the roadway into his lane. I agree that the liability principle which applies at that time is avoidance, not assumption. The distinction is important as the two concepts have different meanings and bear different consequences. For one thing, assuming the risk is a complete bar to recovery. Atlantic Coast Line R. Co. v. Street, 116 Ga. App. 465, 466 (1a) ( 157 SE2d 793 ) (1967). See Newman v. Collins, 186 Ga. App. 595, 596 (1a) ( 367 SE2d 866 ) (1988) (physical precedent).

Defendants’ theory, on the other hand, was that plaintiff’s decedent created, or helped to create, a hazardous situation and then participated in it with knowledge that it was causing danger, thus assuming the risk of injury to himself. The hazardous situation was the conducting of a convoyed caravan of two buses and three campus police cars down a two-lane highway, straddling the occasional passing lane so no other vehicles could intervene or pass, sometimes exceeding the speed limit, and using flashing blue lights on the lead and last vehicles, the decedent’s being the last. There was evidence that this operation prompted some oncoming vehicles which were using the highway to stop or slow or pull off as the caravan travelled the more than 20-mile route. This reaction of oncoming vehicles was observable to drivers of vehicles behind the caravan, who were blocked by it from passing. The danger was in causing other vehicles to react to the caravan, which reactions in turn endangered others including plaintiff’s decedent. This is exactly what happened.

There was evidence that, in essence, a white car traveling in front of the tractor-trailer suddenly stopped on the highway when it came *827 upon the caravan, prompting the defendant driver of the tractor-trailer to brake and leading ultimately to the collision. The question is whether the evidence was sufficient to present for jury consideration the defendants’ theory that a hazard or danger was created by the caravan and its time and manner of operation, including the use of flashing blue lights on the police cars, when other traffic was proceeding towards it and behind it on the roadway, and that the policeman assumed the risk of injury to himself by participating in what he knew or should have known was an unnecessarily hazardous activity.

“Assumption of risk in its simplest and primary sense means that the plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward him and to take his chance of injury from a known risk. ‘The result is that the defendant is simply under no legal duty to protect the plaintiff . . .’ ‘assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it’. . . the basis of the doctrine of assumption of risk is that a party assumes the risk of danger which he knows and appreciates or that the law will hold that he does know and appreciate.” Roberts v. King, 102 Ga. App. 518, 521 (1) ( 116 SE2d 885 ) (1960). “In order for a defendant to invoke the doctrine of assumption of the risk it must be established that the plaintiff deliberately chose an obviously perilous course of conduct and fully appreciated the danger involved. [Cit.]” Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78, 79 ( 225 SE2d 475 ) (1976).

The majority concludes as a matter of law that the convoyed caravan did not constitute a danger or hazard posing a risk, such that assumption of the risk can apply. But the situation is not subject to a legal conclusion that it did not constitute a danger or hazard. There was some evidence that it did. This included uncontested evidence that flashing blue lights were in use on the police vehicles including the decedent’s, which the jury could find inferred to oncoming traffic that an emergency existed. See in this connection OCGA § 40-6-6. The question of whether the caravan created a danger is one of fact for the jury to decide, not the appellate court. See, for example, Center Chemical Co. v. Parzini, 234 Ga. 868 ( 218 SE2d 580 ) (1975); Parzini v. Center Chemical Co., 136 Ga. App. 396, 399 (6) ( 221 SE2d 475 ) (1975). “It is the general law of this state that questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly issues for jury resolution, and a court should not remove the issue from the jury except in plain and indisputable cases. [Cit.]” Campbell v. Forsyth, 187 Ga. App. 352, 355 (1) ( 370 SE2d 207 ) (1988). This general law embraces the defense of assumption of risk, Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 ( 331 SE2d 899 ) (1985), which like the questions of negligence, diligence, and contributory negligence involves measurements of behavior. The situa *828 tion in the present case is not plain and indisputable.

Decided May 15, 1991

Reconsideration denied July 31, 1991

C. Lawrence Thompson, Fletcher Thompson, for appellant.

Alembik, Fine & Callner, Lowell S. Fine, G. Michael Banick, for appellees.

The doctrine of assumption of risk is applicable to a self-created danger, such as in this case, as well as to one created by a third party. An example of the former is found in Newman v. Collins, supra, and an example of the latter appears in Deere & Co. v. Brooks, 250 Ga. 517 ( 299 SE2d 704 ) (1983).

“ ‘A charge is proper if there is any evidence authorizing it.’ Joyce v. City of Dalton, 73 Ga. App. 209 (2) ( 36 SE2d 104 ) (1945).” Kent v. Henson, 174 Ga. App. 400, 402 (2) ( 330 SE2d 126 ) (1985). The court did not err in giving the charge.

2. With respect to Division 5, the court’s instruction to the jury regarding merely what defendants contended in their defense is not reversible error in this case, if error it was, which I cannot concede. The defendants had requested a charge concerning improper use of emergency lights, but the trial court did not give it.

Moreover, when the jury during its deliberations requested recharge on certain points, counsel for plaintiff stated: “We would ask that you also give the same charge you gave yesterday with regard to the flashing blue lights in that their question touches on the negligence of the caravan [which] would necessarily indicate they have some question about that and I think the flashing blue lights is the negligence of the caravan.” The court refused to do so. Having specifically asked for it to be repeated, appellant cannot complain on appeal that it was given the first time.