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High-speed police chases may look exciting on the local news, but they often have deadly consequences for innocent bystanders. In many cases, police and local officials are held blameless by the courts due to the doctrine of sovereign immunity. Recently, the Georgia Court of Appeals elaborated on the standards required for holding police accountable (or not accountable) in such cases.

City of Atlanta v. McCrary

In early 2008, two Atlanta police officers attempted to stop a vehicle with improper tags. The driver sped away, and the officers pursued the vehicle. There is some dispute over what happened next. The officers said they broke off pursuit after determining a continued chase would violate Atlanta Police Department regulations. The driver, in contrast, said he “never lost sight of the police” and continued to evade them. In any event, the driver eventually collided with a third vehicle, killing the passenger in his vehicle as well as the driver of the other car.

The estates of both victims sued the City of Atlanta. They argued the officers were negligent in initiating the chase, and that the city “maintained a nuisance” by failing to properly supervise its police and enforcing its policies governing the use of high-speed chases. The City agreed to pay up to $700,000 for the officer’s “negligent use” of his police car, but argued sovereign immunity barred any further liability. A trial court disagreed, and denied the City’s motion for summary judgment on those terms.

On July 16 of this year, a divided Georgia Court of Appeals reversed the trial court’s ruling and granted the City summary judgment. Judge William M. Ray, II, writing for the majority, said the plaintiffs presented no “evidentiary link” connecting the Atlanta Police Department’s training or enforcement regarding high-speed chases and the accident that killed the victims. In order to qualify as a “nuisance,” Judge Ray said, there must be evidence of “a continuous or regularly repetitious act or condition which causes injury,” which he said was not the case here.

Judge Christopher J. McFadden disagreed, and was the lone judge to dissent from Judge Ray’s opinion. Judge McFadden argued there was enough evidence to allow a jury to infer that “high speed police pursuits — whether proper or improper under the policy — are dangerous and have proven so in [Atlanta].” He said there was evidence that showed police officials “neither informed the officers of when they could engage in high speed pursuits under the policy nor held their officers accountable for complying with the policy.”

In response to Judge McFadden, Judge Ray said the majority declined to “infer multiple links where no evidence supports them.” Nevertheless, Judge Ray did criticize the Atlanta Police Department for its “incomplete reporting” of data regarding high-speed police chases. He reiterated there was insufficient evidence to show a pattern of dangerous conduct that would allow a jury to find the City maintained a “dangerous condition” or “nuisance.”

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On September 3, a federal appeals court asked the Georgia Supreme Court to clarify whether an insurance company must pay out “uninsured motorist” (UM) benefits for an accident caused by an agent of the State of Georgia. The question arose from a federal judge’s ruling last December holding an insurer liable under such circumstances. The appeals court delayed considering the insurer’s appeal pending the Georgia Supreme Court’s clarification.

FCCI Insurance Company v. McLendon Enterprises, Inc.

This case began with a traffic accident. The plaintiffs are the driver and owner of a vehicle that collided with a school bus owned by Evans County, Georgia. After settling with Evans County for the maximum limit of its insurance policy, the plaintiffs sought uninsured motorist benefits from their own insurer, FCCI. FCCI balked, and asked a federal judge to declare it owed nothing to the plaintiffs.

FCCI’s argument is rooted in sovereign immunity. Normally, the State of Georgia and its subdivisions, such as Evans County, enjoy total immunity from civil lawsuits. This means that, absent a waiver of sovereign immunity, a person injured by a state agent cannot collect any damages. In 1994, the Georgia Court of Appeals, the state’s second-highest court, held UM insurers could be liable for torts committed by state officials. The Court of Appeals reasoned that, since total sovereign immunity barred all recovery from the state (the tortfeasor), public policy required UM insurers to provide coverage so that insured persons could still receive some form of compensation.

The dilemma in this case stems from the fact that Evans County partially waived its sovereign immunity when it took out its own insurance policy. The plaintiffs already received some compensation, though not as much as they could if Evans County were a private person. Both the Georgia Court of Appeals and the Georgia Supreme Court are yet to address this exact type of situation.

Last December, a U.S. district judge ruled against FCCI, reasoning that the Georgia Court of Appeals’ 1994 decision regarding total sovereign immunity should apply to partial sovereign immunity as well. This would make the insurer liable for paying UM benefits to the plaintiffs. FCCI appealed that decision to the U.S. 11th Circuit Court of Appeals in Atlanta. Although the 11th Circuit is a federal court, it is bound to apply Georgia law as definitively interpreted by its own courts. Given the lack of case law, with the exception of the 1994 Court of Appeals decision, the 11th Circuit chose to ask the Georgia Supreme Court to weigh on the issue.

The 11th Circuit phrased its question as follows: “Can an insured party recover under an uninsured-motorist insurance policy providing that the insurer will pay sums ‘the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle’ despite the partial sovereign immunity of the tortfeasor?” This is only a suggested question, however, and the Georgia Supreme Court is free to reframe the issue as it sees fit.

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A “common carrier” is a person or company that furnishes transportation to the general public in exchange for money. Georgia law requires all common carriers, such as bus operators, to “exercise extraordinary diligence” to protect its passengers in order to avoid liability for negligence. This is a higher standard than applies in most negligence cases, where an owner need only demonstrate “ordinary care” in keeping his or her premises safe.

Recently, a divided Georgia Court of Appeals addressed the applicability of the “extraordinary diligence” standard in the case of a ticketed passenger who tripped and fell on her way to board a bus. A majority of the court found she was not actually a passenger at that point, and therefore could only pursue a claim under the “ordinary care” standard for premises liability—which, unfortunately, was not available to her because of procedural issues.

DeMott v. Old Town Trolley Tours of Savannah, Inc.

The common carrier in this case operated trolley-bus tours of Savannah. A woman purchased a ticket at a visitor’s center and walked across the parking lot to ask an employee where she would board the trolley. The employee directed her to go back across the parking lot to the visitor’s center. The parking lot contained numerous potholes. As the woman attempted to avoid one such pothole, the asphalt beneath her collapsed, and she fell.

This occurred in 2008. Georgia law requires a plaintiff to file a premises liability claim within two years of the alleged injury. Here, the woman sued the City of Savannah in 2010, operating under the erroneous belief the city owned the parking lot in question. In fact, the tour bus operator owned the lot. The plaintiff attempted to substitute the bus operator as the defendant, but the two-year statute of limitations expired before she could do so.

The plaintiff amended her complaint again, this time accusing the bus operator of breach of contract, invoking the “extraordinary diligence” requirement of Georgia law. The trial court rejected her claim and granted summary judgment to the bus operator.

In a 4-3 vote, a seven-judge panel of the Georgia Court of Appeals affirmed the trial court’s grant of summary judgment. Judge Michael P. Boggs, writing for the majority, said “no carrier-passenger relationship existed” between the plaintiff and the bus operator at the time the plaintiff crossed the parking lot. If the plaintiff fell while attempting to board the trolley, that would be a breach of the contract of carriage. But since she fell in the parking lot, her claim fell under premises liability, and was barred by the statute of limitations.

Presiding Judge Anne Elizabeth Barnes wrote the dissenting opinion. She said, since it was undisputed the plaintiff purchased a ticket—thereby creating a contract of carriage—a jury should decide whether the tour bus company’s “extraordinary diligence” duty began when the plaintiff crossed the parking lot. Judge Barnes said, “the record is unclear” as to where the plaintiff actually fell in relation to the trolley.

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While a traffic accident may occur entirely within one state, the insurance policies applicable to the vehicles and their owners may invoke the laws of two or more jurisdictions. This is why federal courts often handle personal injury lawsuits. Where there is “diversity” of jurisdiction between the parties—that is, the plaintiffs and defendants reside in different states—a federal court may hear the case.

However, state law still applies to personal injury lawsuits, even those tried before a federal judge and jury. That still may raise the question of which state law to apply in a given situation. Recently, a federal appeals court in Atlanta addressed just such a complex matter.

Travelers Property Casualty Company of America v. Moore

This unfortunate case began with a vehicle repossession. Two men, tow truck operators, went to an Atlanta home to repossess a Ford Mustang. The Mustang’s owner did not respond well. He brandished a sawed-off shotgun and proceeded to blow out one of the tow truck’s tires. The two tow truck operators immediately fled the scene. The shooter then proceeded to follow them in another vehicle, a van owned by the shooter’s employer.

During the ensuing chase, the shooter’s vehicle made contact with the tow truck and the shotgun, which was in the shooter’s hand, accidentally went off, killing one of the tow truck operators and seriously injuring the other. Police subsequently arrested the shooter, and a Georgia jury convicted him of felony murder and related offenses. The shooter is presently serving a life prison sentence.

The shooter was employed by a Rhode Island-based company that sold and serviced lottery machines in Georgia. The company provided the van for work-related purposes only. No personal use was permitted without company authorization. The van itself was insured by Travelers, which delivered the policy to the company’s headquarters in Rhode Island.

In anticipation of a lawsuit by the shooter’s victims, Travelers asked a federal court to declare it not responsible for the shooter’s actions pursuant to the employer’s commercial liability policy. A federal judge declined to do so, finding the shooter had his employer’s permission to use the van at the time of his rampage.

In adecision issued on August 14 of this year, a three-judge panel of the U.S. 11th Circuit Court of Appeals reversed the trial court ruling and entered judgment for Travelers. The panel said the “undisputed testimony” of the employer showed the shooter had no authorization to use the van for any personal reasons, especially for chasing the two men in the tow truck. No reasonable jury could therefore find the shooter an insured person under the Travelers policy.

The 11th Circuit also clarified that, although this case arose from an incident in Georgia, under Georgia law an insurance contract is interpreted according to the state where the policy is delivered, in this case, Rhode Island. While Rhode Island law states the registered owner of a vehicle is presumptively liable for an accident caused by an employee-driver, that presumption does not extend to an a third party who merely insures the vehicle.

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In any personal injury lawsuit, it is critical the parties to the case preserve any relevant evidence. A court may sanction either side if there is destruction or “spoliation” of evidence. A recent decision by a federal judge in Macon offers an example of these sanctions in practice.

Little v. McClure

This is an ongoing personal injury lawsuit arising from a motor vehicle accident. In February 2012, a tractor trailer collided with another vehicle at the intersection of Interstate 76 and Interstate 75 in Macon. The tractor trailer driver is the defendant. The plaintiffs allege he was negligent because he was distracted by talking on his cellular phone at the point of the accident.

The defendant denied this. He said in a pretrial deposition he was using a hands-free device and ended his call about 90 seconds before the accident. The plaintiffs produced cellphone records contradicting this. The defendant responded he was having difficulty with his hands-free device and it may have failed to disconnect immediately even though his conversation ended.

The plaintiffs, naturally, wanted to examine the hands-free device to verify the defendant’s claim. Unfortunately, the defendant said he returned the device to the manufacturer a few weeks after the accident, so it could not be made available to the plaintiffs. The plaintiffs went to the judge, arguing this amounted to a spoliation of evidence.

The judge agreed. In a decision issued on July 31 of this year, U.S. District Judge Marc T. Treadwell said the defendant failed to preserve evidence as normally required by Georgia and federal law. As is standard practice in personal injury cases, counsel for both the plaintiffs and the defense informed their clients about the need to preserve evidence shortly after it became clear there would be litigation. Nevertheless, Judge Treadwell said, the defendant “returned his hands free device to the manufacturer approximately two months after the spoliation letters were received.” This could not be excused as an accident or oversight, the judge said, as the letters specifically informed the defendant of the need to preserve “all evidence related to this accident.” Judge Treadwell said “it would defy common sense” for the driver, his employer and their attorneys not to recognize the absolute need to preserve the hands-free device as a crucial piece of evidence.

The defendant’s case rests on his testimony that the malfunction of the hands-free device led to an error in the cellphone records that show he was using his phone when the accident occurred. The defendant’s subsequent spoliation now prevents the plaintiffs from cross-examining that evidence. Accordingly, Judge Treadwell said sanctions are necessary to overcome the prejudice to the plaintiffs’ case. Given the circumstances, Judge Treadwell said he would instruct the jury to draw an “adverse inference” that the defendant destroyed evidence “in bad faith.” This will seriously compromise the defense’s ability to argue the cellphone records were erroneous.

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Expert testimony is a critical element of medical negligence cases. The United States Supreme Court has charged trial judges with serving as “gatekeepers” who must screen out “speculative, unreliable expert testimony” before it even reaches a jury. But that does not mean judges enjoy unlimited discretion to decide which experts to admit. A federal appeals court in Atlanta recently chided a district judge for improperly excluding a plaintiff’s expert witness in a Georgia negligence case. The appeals court also rejected an attempt by the medical industry to dictate its own standards of expert witness reliability to the courts.

Adams v. Laboratory Corporation of America

The plaintiff in this case suffered from cervical cancer. She received several Pap smear tests, but the laboratory that analyzed the results failed to discover the cancer before it had spread to the plaintiff’s lymph nodes. The plaintiff then sued the laboratory for negligence.

The plaintiff presented an expert witness, Dr. Dorothy Rosenthal, a pathologist at Johns Hopkins University who has more than 40 years experience in training and supervising laboratory technicians. Dr. Rosenthal reviewed the plaintiff’s original test results and concluded the lab “fell short of the applicable standard of care” in diagnosing the plaintiff.

The laboratory moved to exclude Dr. Rosenthal’s testimony. It argued her methodology was unreliable. The trial judge agreed and granted summary judgment to the laboratory.

The 11th U.S. Circuit Court of Appeals reversed the trial court in an opinion issued on July 29th of this year. The appeals court said the trial judge’s conclusion regarding Dr. Rosenthal’s credibility was “manifestly erroneous.” The trial judge asserted Dr. Rosenthal’s methodology could not be replicated by other experts. The appeals court said just the opposite was true; indeed, the laboratory’s expert used the exact same methodology, albeit to reach a different conclusion.

The appeals court also rejected the trial judge’s view that Dr. Rosenthal’s methodology did not meet the guidelines proposed by the College of American Pathologists and the American Society of Cytopathology. These guidelines purport to advise courts on how to adjudicate negligence claims against its members. As the 11th Circuit noted, these guidelines have nothing to do with the a standard of care a patient receives; rather, they are “policy proposals to limit how the courts can find the members of the organizations liable for professional negligence when they are sued.” The 11th Circuit emphatically states private interest groups should not be allowed to set evidentiary standards.

Finally, the 11th Circuit said the trial judge could not exclude Dr. Rosenthal’s testimony simply because she might have a bias towards plaintiffs in negligence cases. While bias may be an issue, it is a question for a jury to weigh and decide. A trial judge must not usurp the jury’s legitimate fact-finding role in this respect.

One judge on the 11th Circuit panel, Emilio M. Garza, wrote separately to state he did not think Dr. Rosenthal’s “methodology” should play a role in this case. Judge Garza said neither Dr. Rosenthal nor the laboratory employed any clearly defined methodology, but instead “they simply drew upon their knowledge” in assessing the plaintiff’s Pap smears. As far as Judge Garza was concerned, that means Dr. Rosenthal’s testimony is admissible so long as she is competent, which the laboratory never disputed.

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On July 16, a fractured Georgia Court of Appeals held a plaintiff could seek damages for emotional distress arising from a truck accident. Although Georgia law generally does not allow damages for “negligent infliction of emotional distress,” there is an exception for a “pecuniary loss” arising from physical injury. In this case, the appeals court judges disagreed over whether this pecuniary loss rule covered the circumstances alleged by the plaintiff.

Oliver v. McDade

The plaintiff and several others were returning home from a dirt race in a truck owned by the plaintiff and driven by one of his friends. The truck was towing the plaintiff’s race car. Somewhere on I-16 in Dublin, they stopped to check the trailer hitch. At that moment, a tractor trailer swerved onto the shoulder and hit the plaintiff’s truck and trailer. The plaintiff’s friend was crushed and killed immediately. The plaintiff suffered a number of physical injuries. He was subsequently diagnosed with a number of emotional injuries, including depression, insomnia, anxiety and suicidal thoughts.

The plaintiff sued the driver, owner and insurer of the tractor trailer. The defendants asked the trial judge for summary judgment of the plaintiff’s claim for damages arising from emotional distress. The defense maintained the plaintiff’s emotional injuries arose, at least in part, from witnessing his friend’s death, which is not recoverable under Georgia law. The judge denied the defendants’ motion but allowed them to immediately appeal his decision to the Court of Appeals.

A full nine-judge court heard the case. Eight judges voted to affirm the trial judge’s decision, meaning the plaintiff’s emotional distress case can proceed. The majority produced three separate opinions, however. Presiding Judge Sara L. Doyle delivered the principal judgment, which was only joined in full by Judge William M. Ray, II. Judge Doyle said it was clear from the evidence presented so far that all of the plaintiff’s alleged emotional injuries arose from the physical injuries suffered in the accident. But, Judge Doyle added, even if some of the plaintiff’s emotional injuries arose from witnessing his friend’s death, he might still recover from the defendants under the pecuniary loss rule so long as the plaintiff also suffered some physical injury.

Judge Christopher J. McFadden wrote the second opinion. He agreed with Judge Doyle’s conclusions but disagreed with some of her footnotes. He added that under the pecuniary loss rule, the plaintiff could recover for the “serious emotional distress of witnessing his close friend’s suffering and death without regard to whether the emotional trauma arises out of a physical injury.”

Judge Michael P. Boggs wrote the third opinion. He agreed with Judge Doyle that nothing in the evidence presented so far suggests the plaintiff’s emotional trauma arose from anything other than his physical injuries. Judge Boggs disagreed with Judge McFadden’s view that this was a case where the pecuniary loss rule applied.

Presiding Judge Gary Blaylock Andrews wrote the only outright dissenting opinion. He accused Judge Doyle and Judge McFadden of creating an “unprecedented and unauthorized expansion of the pecuniary loss rule.” He said the plaintiff should not be allowed to pursue any damages under the pecuniary loss rule.

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The Supreme Court of Georgia issued an important decision on July 11 that will make it easier for accident victims to pursue uninsured motorist claims against their insurance carriers. The Supreme Court, reversing a 2013 decision by the Georgia Court of Appeals, said a plaintiff could allocate part of a settlement with the defendant’s insurance carrier to punitive damages while retaining the right to pursue an uninsured motorist claim for compensatory damages. Georgia law does not permit recovery of punitive damages under an uninsured motorist policy.

Carter v. Progressive Mountain Insurance

This case began with a February 2010 two-vehicle accident. One driver sued the other for negligence. The plaintiff alleged the defendant was driving under the influence of alcohol at the time of the accident. The defendant had an insurance policy limited to $30,000 in liability coverage. The plaintiff had her own uninsured motorist policy with Progressive Mountain Insurance.

The plaintiff eventually signed a limited release with the defendant’s insurer. In exchange for accepting the the coverage limit of $30,000, she agreed to allocate $29,000 of that amount to punitive damages and only $1,000 to compensatory damages. The plaintiff would then pursue an uninsured motorist claim with Progressive for any additional compensatory damages.

Progressive challenged this condition as a violation of Georgia law. The trial court agreed and granted summary judgment to Progressive. Last year, the Georgia Court of Appeals upheld this decision. The appeals court said the plaintiff could not pursue uninsured motorist benefits until she first “exhausted” the liability limits of the defendant’s insurance policy. In that sense, the court said the plaintiff’s agreement with the defendant’s insurer to allocate most of the liability coverage to punitive damages “frustrates” the law’s objectives by unfairly burdening the uninsured motorist carrier with paying more in compensatory damages.

The Georgia Supreme Court disagreed. Presiding Justice P. Harris Hines, writing for a unanimous Court, said the Court of Appeals’ objections were “ill-founded.” Georgia law does not bar a plaintiff and an defendant’s insurer from allocating a portion of liability coverage to punitive damages, Justice Hines explained. The law only addresses the conditions by which an insurer may be released from further liability. Furthermore, the law actually prevents the type of burden-shifting the Court of Appeals objected to, because in this case, any compensatory damage award to the plaintiff must be offset by the $30,000 previously received from the defendant’s insurer—regardless of the fact some of that liability was directed to punitive damages. Ultimately, Justice Hines said, the plaintiff’s “combined recovery will not exceed [her] economic and noneconomic losses.”


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If you are in an accident, and you sue the other driver for negligence, can the other driver turn around and argue your employer—who is not a party to the lawsuit—was partially to blame for letting you drive its car? That was the unusual question presented to the Georgia Court of Appeals. In a decision issued on July 16, a seven-judge panel of the Court rejected what it dubbed a “creative argument” by a defendant trying to mitigate her own potential liability.

Zaldivar v. Prickett

In 2009, two vehicles collided at an intersection. Although both drivers suffered injuries, only one driver sued the other for negligence. The other did not file a counterclaim.

Both drivers maintain the other caused the accident. The plaintiff was driving a car owned by his employer. The defendant driver argued, as an affirmative defense, the employer was “wholly or partially at fault for negligently entrusting” one of its vehicles to the plaintiff, who had “received three anonymous calls from people complaining about how [the plaintiff] had been driving.” The plaintiff asked the trial court for summary judgment on this point, and the judge agreed. The defendant then appealed.

Under Georgia law, a court must apportion damages for negligence based on the relative fault of all responsible parties, even persons or entities who are not parties to the actual lawsuit. Here, the defendant argued the plaintiff’s employer was partially responsible for the injuries suffered by the plaintiff. The Court of Appeals was unwilling to accept this as a valid outcome under Georgia tort law.

Presiding Judge Anne Elizabeth Barnes, writing for the majority of the Court, said even if the plaintiff “were determined to be negligent and partially responsible for his own injuries, his own negligence would break the causal connection between any negligent act of his employer [] in entrusting a vehicle to him.” A court may only apportion liability to a non-party if it “contributes” to the plaintiff’s injuries. As Judge Barnes explained, while the employer’s alleged negligent entrustment may have contributed to the defendant’s injuries—and remember, she did not file a claim for damages—it cannot contribute to the plaintiff’s injuries.

One judge disagreed. Judge Elizabeth L. Branch filed a dissenting opinion. She argued it made no sense that the plaintiff could assign partial liability to his employer but the defendant could not. After all, Judge Branch said, both parties “injuries resulted from the same accident.” She said Georgia law was only concerned with assigning “fault” for the accident rather than liability for the plaintiff’s injuries. The issue is not whether the plaintiff could sue his own employer for giving him a vehicle; the issue is whether the employer’s negligence contributed to the accident.

The majority’s position is now the law, however, and Judge Barnes made it clear a defendant cannot seek to apportion any blame for an accident on the plaintiff’s employer. Keep in mind, the appeals court has not decided the merits of the plaintiff’s lawsuit, as the case now continues before a trial court.

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Under Georgia law, the owner of a premises is liable for any injuries arising from a failure to “exercise ordinary care” in keeping said premises safe. A recent decision from the Georgia Court of Appeals illustrates how this duty is applied in “slip-and-fall” cases where there is an alleged hazard the owner failed to warn invited persons about.

Henderson v. St. Paul Baptist Church

The plaintiffs in this case were two visiting pastors, a husband and wife, invited to speak at a church in Clinch County. The church did not have a designated parking lot, so the local pastor directed the plaintiffs to park behind his own car on the left side of the building. The plaintiffs parked their car as directed, behind their host’s car and near some some shrubbery. One of the plaintiffs, the wife, later exited the car and walked towards the church’s front entrance. She walked through the ground near the shrubbery, which was covered in pine straw. Assuming it was safe, she stepped over the pine straw, which was in fact covering a hole. She fell into the hole and broke her leg.

The plaintiffs sued the church for premises liability. The church’s pastor admitted he was aware of the hole, which had been dug when the shrubbery had been planted about a month before the plaintiff’s accident. The pastor also acknowledged this hole was not visible or marked in any way. He conceded there was no way the plaintiffs could have known the hole was there.

Nevertheless, the church moved for summary judgment, arguing the plaintiff was responsible for the accident. The trial court agreed. The court accepted evidence the plaintiff took a “shortcut” through the shrubbery to get to the church’s entrance rather than using the designated path.

The Court of Appeals reversed the trial court on the summary judgment question. The appeals court said there were still disputed questions of fact to be resolved at trial. Specifically, the plaintiff presented evidence “that at the time of her fall the entire area between her car and the bushes was covered with pine straw, leaving her with no choice of whether to walk on the pine straw to get to the church entrance from the parking spot.” The appeals court also pointed to the plaintiff’s testimony that it was the defendant’s pastor who invited them to park next to the shrubs, contradicting the notion the plaintiff negligently chose to deviate from the designated path.

As is always the case with summary judgment, the Court of Appeals did not rule for the plaintiff on the merits. The court is required to reconsider the trial court’s decision on summary judgment in the light most favorable to the plaintiff. Here, the Court of Appeals simply found a factual dispute remained, which requires a trial before a jury. The jury could still ultimately find it was the plaintiff’s negligence, rather than the defendant’s failure to warn, that was responsible for her injuries.