Cowart v. Widener

HUNSTEIN, Chief Justice,

concurring in part and dissenting in part.

I respectfully dissent to the majority’s affirmance of the grant of summary judgment in favor of appellees. The majority fails to apply the proper standard of review to summary judgment cases and improperly construes the evidence in favor of appellees, the respondents. I would reverse because a de novo review of the evidence applying the proper standards establishes that genuine issues of material fact remain for a jury to decide.

1. To prevail on a motion for summary judgment, the burden is on the moving party to demonstrate the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Kaplan v. City of Sandy Springs, 286 Ga. 559 (1) ( 690 SE2d 395 ) (2010). We recently reiterated in American Multi-Cinema v. Brown, 285 Ga. 442, 445 (2) ( 679 SE2d 25 ) (2009) that negligence issues are “generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” (Footnote omitted.) In our de novo review of the grant of a motion for summary judgment, we must “view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Emphasis supplied.) Kaplan v. Sandy Springs, supra at 560 (1). While the majority recites the proper standards on summary judgment, it then ignores these standards completely by accepting appellees’ version of events without question. By doing so the majority displays its disdain for our jury system by making credibility determinations that have heretofore been within the exclusive realm of the factfinder.

The deposition testimony of Widener by itself shows that a triable issue of material fact exists in this case. Widener claimed that Cowart, an unauthorized passenger in Widener’s tractor trailer truck, said and did nothing to indicate to Widener that he needed medical attention. Because the two men were alone in the truck, the majority accepts Widener’s statements as undisputed. Those statements, however, must be assessed in light of all of the facts. Most significant is the fact that, even after discovering in Lexington, Kentucky that Cowart had actually died in his truck, Widener nevertheless continued driving to Ohio, which required him to endure hours of the “extremely foul odor” emanating from the body in the rear seat of the cab. Indeed, but for the accident he caused at a truck stop in Ohio, which led to the state trooper’s discovery of Cowart’s body, it appears that Widener would have completed the delivery of his cargo in Ohio. Given Widener’s testimony that he *639 would not let the death of a passenger delay his delivery, the record evidence supports a reasonable inference that Widener would not have let anything stop him from making his delivery.

Widener’s own account of his “Ohio or bust” behavior could thus call into question the credibility of his self-serving statements about the extent of Cowart’s external symptoms. A jury could reasonably infer that Widener minimized Cowart’s condition in his testimony in order to justify his decision to deliver his cargo at any cost. An additional reason exists for a jury to discount Widener’s credibility on this issue in that, had delivery of Widener’s cargo been delayed for the purpose of seeking medical assistance for Cowart, the presence of an unauthorized passenger in Widener’s truck would then have to be explained to UTI. While a jury might possibly believe Widener’s unusual explanation for keeping Cowart’s body in his truck, i.e., that he was concerned about how the body would get back to Georgia if he did not bring it with him, see Maj. Op., p. 625, or his explanation for downplaying his violation of UTI’s unauthorized passenger policy, 3 it is for the jury, not this Court, to make these determinations.

By taking Widener’s statements at face value, the majority makes a credibility judgment that is reserved exclusively for the finder of fact. “[T]he movant for summary judgment carries the burden to eliminate material issues of fact, and where material issues can be eliminated only by making credibility judgments, the movant has not met his burden.” (Punctuation and footnote omitted.) Holmes v. Achor Center, 249 Ga. App. 184,192 (2) (b) ( 547 SE2d 332 ) (2001). Based on Widener’s admitted single-minded behavior in seeking to deliver his cargo, I would instead recognize that a reasonable jury could find as lacking in credibility Widener’s claims about the absence of any external symptoms shown by Cowart.

Contrary to the majority’s argument, the credibility problems with Widener’s own deposition testimony undermine not only the majority’s finding about causation but also its finding that Widener’s failure to render aid made no difference in preventing Cowart’s death. The majority points to Cowart’s treating physician’s statement that “he could not say if Cowart would have survived if he had been taken to an emergency room.” Maj. Op., p. 636. But that statement is predicated exclusively upon the time line of events Widener provided, i.e., “after Widener realized that [Cowart] was seriously ill.” (Emphasis supplied.) Maj. Op., p. 635. The only source we have for knowing when Widener “realized” Cowart was seriously *640 ill is Widener himself. Because Widener’s credibility is in issue, a jury after hearing and seeing him testify may reasonably reject everything he claims, including the point of time at which Widener “realized” Cowart could use medical assistance. Indeed, summary judgment based on the treating physician’s opinion would have been appropriate here only in one circumstance: had he opined that Cowart would have still died even had he gone directly to an emergency room rather than enter Widener’s truck in the first place. But the treating physician did not express such an opinion and instead predicated his opinion on the same self-serving statements by Widener on which the majority relies. Summary judgment is thus no more warranted based on the physician’s opinion than on Widener’s own statements.

Decided July 12, 2010

Reconsideration denied July 26, 2010.

Warlick, Tritt, Stebbins & Murray, Charles C. Stebbins III, for appellants.

Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Fortson, *641 Bentley & Griffin, J. Edward Allen, Jr., Fulcher Hagler, John A. Davison, Amy R. Snell, Charles C. Mayers, for appellees.

*640 I would leave to jurors who have seen and heard Widener testify before them to decide whether to believe Widener’s account of the events leading to Cowart’s death. Unlike the majority, I trust in our Georgia juries to make these types of credibility determinations. Summary judgment as a matter of law is simply not appropriate in this case.

2. I will not quibble with the majority over its rejection of the phrase “medical question” due to its “everyday meaning” and “common parlance,” Maj. Op., p. 627, despite the fact that, as attorneys and jurists, we routinely employ “everyday” words as terms of art. Although I doubt that the majority’s re-labeling of this phrase meaningfully advances the law, I agree with the majority’s ultimate conclusion that expert testimony may be required when, under the facts of the particular case, a determination whether the defendant’s conduct proximately caused the plaintiff’s injury is a matter beyond the ken of the average juror.

For these reasons, I respectfully dissent to Division (3) of the majority’s opinion, concur in Division (2) (a) and concur in judgment only in Division (2) (b).

I am authorized to state that Presiding Justice Carley and Justice Benham join in this concurrence in part and dissent in part.

In his deposition Widener asserted that Cowart’s status as an ex-UTI employee meant there would be no objection to Cowart’s presence.