# Beringause v. Fogleman Truck Lines, Inc.

> Court of Appeals of Georgia · May 15, 1991 · 200 Ga. App. 822

URL: https://www.frixlaw.com/law-library/cases/9623878

## Case

- **Full name:** BERINGAUSE v. FOGLEMAN TRUCK LINES, INC. Et Al.
- **Court:** Court of Appeals of Georgia
- **Decided:** May 15, 1991
- **Citations:** 200 Ga. App. 822; 409 S.E.2d 524; 1991 Ga. App. LEXIS 1146
- **Precedential status:** Published
- **Opinion:** Dissent by Andrews
- **Judges:** Carley, Sognier, McMurray, Birdsong, Pope, Cooper, Banke, Beasley, Andrews
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by Robinson v. Star Gas of Hawkinsville, Inc., 269 Ga. 102 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623878

## How later opinions describe it (automated extraction)

- holding that a plaintiff did not assume the risk of harm, when, while he may have been contributorily negligent in failing to avoid the accident, he could not foresee that the defendant’s truck would swerve out of its lane into oncoming traffic and cause a head-on collision, a…
- holding that evidence did not support assumption-of-the-risk charge when plaintiff-police officer was speeding and straddling median at the time of the collision given that there was no evidence that once truck swerved into his lane, officer made the conscious decision to proc…
- holding that an assumption of risk defense would only apply if there was evidence that, “after the truck had swerved into his lane of traffic, [the officer] had then made a conscious and voluntary decision to proceed and risk a head-on collision”

## Opinion text

Andrews, Judge,
dissenting.
I must respectfully dissent. The majority’s analysis by label (assumption of risk) is inappropriate and incorrect. By whatever label, the charge at issue correctly states a principle of Georgia law. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 ( 88 SE2d 6 ) (1955). There was evidence to support the jury’s application, if it so chose, of the rule. Accordingly, it was not error for the trial judge to give the charge.
I join in Judge Beasley’s dissent with respect to Division 5. I am authorized to state that Presiding Judge Banke joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623878. Public record. Not legal advice.