Rogers v. Schuman-Mann Supply Co.
Rogers v. Schuman-Mann Supply Co.
Opinion of the Court
Jimmy Mason Rogers died in a one-vehicle collision when his truck left a road in Conyers, Georgia, and struck a loading dock of a building leased and operated by the appellee, Schuman-Mann Supply Company, Inc. No one witnessed the collision, but an individual, who was working on his truck approximately 200 feet away, heard the crash, looked up, and saw a white car straddling the centerline near the scene of the collision. The white car drove off hurriedly when this individual waved to it for help. There was no evidence of any physical contact between Rogers’s truck and any other vehicle, and no skidmarks. Tests of blood taken from the decedent showed high levels of Valium and marijuana.
Rogers’ father as administrator commenced this wrongful death action against Schuman-Mann, the City of Conyers, and Georgia Farm Bureau Mutual Insurance Company as an uninsured motorist carrier. The City of Conyers eventually was dismissed as a party, but the remaining defendants were granted summary judgment, and this appeal followed. Held:
1. The trial court granted summary judgment for the uninsured motorist carrier because there was no eyewitness corroboration of the description of the collision, which was required in the absence of actual physical contact, under OCGA § 33-7-11 (b) (2). Hoffman v. Doe, 191 Ga. App. 319 (381 SE2d 546) (1989). The theory of the collision, as propounded by an expert witness for the appellant, was that Rogers swerved to avoid the white car, which must have been pulling out onto the road, and consequently struck the loading dock. The testimony of the individual who heard the crash, and who looked up and saw the white car, was insufficient to corroborate the description of how the incident occurred, and the trial court properly granted summary judgment for Georgia Farm Bureau.
2. Schuman-Mann’s loading dock, which had been in place since at least 1941, was set back less than five feet from the road. Since August 1, 1978, the set-back requirement for new construction in the City of Conyers has been 25 feet, but that zoning ordinance did not apply to the loading dock because of its pre-existing status. The evidence also showed that Rogers had driven up and down the street past the loading dock for several years. There had been no prior accidents involving the loading dock.
Schuman-Mann obviously did not wilfully injure the decedent, and we do not believe the loading dock can reasonably be described as a hidden peril. There was nothing hidden about the loading dock; it was easily viewed from the road, and the decedent had driven by the dock many times over the past several years. There also was nothing hidden about the risk of injury upon colliding with such a concrete structure. Under these circumstances, as a matter of law there was no basis for subjecting Schuman-Mann to liability for the fatal collision.
3. Prior to being dismissed from the action, the City of Conyers filed two motions for protective orders to prevent unduly burdensome discovery and sought attorney fees for having to file such motions. After finding that the discovery requests made by the appellant, which included production of 40 years’ worth of public records, taking the deposition of city employees a second time, and taking the deposition of an investigator and production of the investigative file, were unreasonable or involved work product, the trial court awarded the City of Conyers $1,317.50 attorney fees. We find no abuse of the wide discretion possessed by the trial court in such discovery matters. Cf. Bridges v. 20th Century Travel, 149 Ga. App. 837 (256 SE2d 102) (1979).
Judgment affirmed.
Concurring Opinion
concurring specially.
It is conceivable that a person in close proximity to a collision might not be an eyewitness to the moment but might hear the sound of impact and, looking, see a damaged car drive away, leaving another
Even if such an elasticized meaning were given to the word by judicial interpretation based on the underlying purpose of the statutory provision, it would not aid plaintiff in this case. The sound he heard was not of the decedent’s vehicle colliding with the phantom vehicle but rather with the loading dock. The sound did not connect the allegedly negligently-driven car with the wreck from which it emanated.
Reference
- Full Case Name
- ROGERS v. SCHUMAN-MANN SUPPLY COMPANY, INC. Et Al.
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- 6 cases
- Status
- Published