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In Georgia, a dog owner can be held liable for an injury caused by his or her animal, provided the victim can demonstrate “the dog had the propensity to do the act that caused the injury and, if so … the owner had knowledge of that propensity.” This propensity test requires more than proof a dog exhibits generally “aggressive or menacing” behavior. Rather, as the Georgia Court of Appeals explained in a 1985 decision, “there should be an incident which would put a prudent man on notice to anticipate the event which occurred.”

Green v. Wilson

Recently, the judges on the Court of Appeals’ sparred over how narrowly to construe this “notice” requirement. The victim in this case worked as a house cleaner. The defendants owned a home cleaned by the victim and her co-workers. The homeowners also owned a border collie. According to the victim, it was normal procedure for her and the other house cleaners to “wait outside” until the owner locked the collie in a separate room. She testified the dog routinely “lunged, barked, and growled at the housecleaners.”

One day, the victim arrived at the defendant’s home to discover the dog had not been locked away, but rather was running freely in the front yard. The dog leaped over the fence and ran towards the victim. The victim “quickly jumped inside the van and shut the door as [the dog] barked, growled, and jumped against the van door.” During her escape, the victim “struck her arm against the van, sustaining an injury that required surgery.”

The victim later sued the homeowners for negligence. A trial judge granted summary judgment to the defendants, holding since there was no evidence the dog had ever chased anyone before, the homeowners were not “on notice.” The victim appealed.

In a July 16 decision, the Court of Appeals, by a vote of 4-3, reversed the trial court’s summary judgment and returned the case for trial. Judge Christopher J. McFadden, writing for the majority, said while the dog may not have previously chased anyone, the victim did present evidence of one prior incident where the dog “lunged at the housecleaners” as the owner held the animal back. Judge McFadden said there was “no meaningful distinction between this behavior and what happened on the day [the victim] was injured.” At the very least, there was a disputed question of fact as to whether a “prudent person” would realize the dog might chase someone if left unrestrained.

Judge Stephen Louis A. Dillard disagreed. Writing for himself and the other two dissenting judges, he argued the defendants could not be held responsible unless the victim provided evidence of “a prior incident of the same type as the incident at issue.” Judge Dillard said the victim and her co-workers admitted the dog had not chased them prior to this incident, and at best the animal’s behavior was “aggressive or menacing,” which falls below the standard for negligence required in Georgia.

It should be noted, however, the majority’s decision did not establish the defendants’ negligence. The victim will now simply have an opportunity to present her arguments to a jury, which may still ultimately determine the owners were not responsible.

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Thousands of Georgia residents take vacation cruises every year. You might wonder what happens if someone is seriously injured while at sea on such a cruise. For example, what legal standards apply when determining a ship operator’s negligence?

In a typical premises liability case—say, a slip and fall in a supermarket—the law of the state where the accident occurs govern any subsequent lawsuit. When a similar accident happens at sea, federal maritime law (sometimes called admiralty law) applies. In the United States, maritime law holds a ship owner owes a “duty of reasonable care” to protect its passengers from injury.

Sorrels v. NCL (Bahamas) Ltd.

Recently a federal appeals court in Atlanta held a woman injured in a slip-and-fall on a Norwegian Cruise Line (NCL) ship could proceed with her lawsuit against the company. The woman claimed she fractured her wrist after falling on the ship’s pool deck. The pool deck was wet due to rain earlier in the day. She subsequently sued NCL, alleging it “created a dangerous condition by failing to properly maintain the pool deck.”

Before the trial court, the plaintiff presented testimony from an expert witness who reviewed the “coefficient of friction” (COF) on the pool deck. The COF essentially measures “the degree of slip resistance” on a given surface. Here, the plaintiff’s expert determined the pool deck’s COF was “below minimum standard values that have long been accepted as required in order to classify a walkway surface as slip-resistant.” The expert further stated NCL should have known of the risk to passengers given prior accidents on the same pool deck.

The trial judge ruled the expert’s testimony inadmissible and granted summary judgment to NCL. First, the judge said the expert’s opinion that the pool deck failed to meet industry standards was unreliable, because those standards do not apply to cruise-ship passenger decks, only areas where crew members work. Second, the judge said the expert performed his COF tests on the pool deck “nearly a year and a half after the accident,” which did not mirror the conditions of the plaintiff’s fall. Finally, the judge rejected the expert’s view the uneven COF on the pool deck “will trap individuals via a false sense of security.”

On appeal, the U.S. 11th Circuit Court of Appeals said the trial judge abused his discretion to his first two findings. On the first point, the appeals court said it made no sense to apply two different standards to the same pool deck. In other words, both crew members and passengers travel throughout the ship; therefore the same COF standards should apply.

With respect to whether the expert’s test mirrored the conditions of the plaintiff’s accident, the appeals court said the evidence “was contrary to the district court’s finding.” Indeed, NCL acknowledged the pool deck was substantially the same as was at the time of the accident. And the appeals court said any “delay in viewing or inspecting the place where an accident took place normally goes to weight and not to admissibility.” So the expert can offer opinions to a jury based on his tests.

The 11th Circuit did not address the merits of the lawsuit. It only held the expert’s testimony was partially admissible, and as such, the trial court must now determine whether that evidence would allow a jury to conclude NCL “created a dangerous condition” on the pool deck.

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How far may a court go in allowing jurors to personally examine evidence? The Georgia Court of Appeals recently addressed this question in the context of a medical malpractice case. Specifically, the court reviewed a trial judge’s decision to allow jurors to physically touch a plaintiff’s hands.

Piedmont Newnan Hospital, Inc. v. RA-085 Barbour

The plaintiff in this case went to a hospital in Newnan, Georgia, complaining of chest pains. Hospital personnel conducted a series of diagnostic procedures, including a “nuclear stress test.” This test requires the use of IV catheters to inject small amounts of nuclear material into a patient’s arm. This material helps trace the flow of blood into the patient’s heart at different intervals.

In this instance, the plaintiff received the IV injections in his left arm. During the test he complained of sharp pain in the arm, which led a nurse to conclude the nuclear material had leaked from the vein into the soft tissue of the arm itself. The arm later swelled and became discolored.

Unfortunately, the plaintiff’s pain continued even after his discharge from the hospital. After several more visits to his primary care physician and the emergency room, a neurologist diagnosed the plaintiff with “complex regional pain syndrome” (CRPS), effectively permanent nerve damage which causes chronic pain. A CRPS specialist confirmed the plaintiff’s diagnosis and said the botched nuclear stress test was to blame. The specialist would go on to perform two surgeries to address the nerve damage.

The plaintiff subsequently sued the hospital for malpractice. The hospital denied any responsibility, indeed arguing the plaintiff did not suffer from CRPS, or if he did, it was the result of his subsequent treatment by other physicians.

At trial, both sides presented expert witnesses who clashed on the key issue of whether the plaintiff had CRPS. During cross-examination, the defense’s expert conceded he could not confirm or deny the plaintiff’s diagnosis without personally examining his hands. The plaintiff’s attorney then invited the expert to do just that in front of the jury. The plaintiff’s expert later conducted a similar examination.

The experts were looking for any difference in temperature between the plaintiff’s left and right hands. The plaintiff’s expert said the the left arm was “very cool compared to the right arm,” an indication of CRPS. The defense expert, in contrast, said the left arm was a “little cooler” but still “roughly the same” as the right arm.

To help clarify the matter for the jury, the plaintiff’s attorney asked the judge to allow jurors, at their discretion, to feel the plaintiff’s hands for themselves. The defense objected. The judge overruled the objection, and several jurors went on to touch the plaintiff’s hands. The jury ultimately returned a verdict for the plaintiff.

On appeal, the hospital argued the trial judge was wrong to permit jurors to physically touch the plaintiff’s hands. The Court of Appeals disagreed. Judge William M. Ray, writing for the Court of Appeals, said given the facts of this case, there was nothing wrong with allowing jurors to use their sense of touch in order to help weigh the credibility of the dueling expert witnesses. “There is no argument that the jurors should not have been permitted to use their sense of sight to look for nervousness, fidgeting, sweating, or other nonverbal indications that a witness might be lying,” Judge Ray said, adding, “Why, then, cannot the sense of touch be utilized by the jury in appropriate circumstances, limited by the exercise of the sound discretion of the trial court, just like the senses of sight, hearing, and even taste have been so allowed?” (The mention of “taste” refers to a Prohibition-era case Judge Ray cited where a judge permitted jurors to sample from a jug allegedly containing illegal whiskey.)

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Many personal injury lawsuits come down to a “he said/she said” conflict: Two people get into an accident and each accuses the other of causing it. But what happens when one of the parties dies as the result of the accident, and there is no way to prove or disprove the survivor’s account of what happened? A federal judge in Georgia recently dealt with just this situation when sorting out the aftermath of a tragic boating accident.

Holmes v. Parker

In July 2009, three people boarded a 23-foot motorboat and traveled to Raccoon Island, a privately owned island in Chatham County. The three people included the boat’s owner, his female partner and another male passenger. While attending a party on Raccoon Island, the owner and his partner consumed alcohol and cocaine. During their return trip the following morning, the group’s boat hit a jetty on nearby Jekyll Island.

The owner and his partner were thrown from the boat. The owner managed to return to the boat and broadcast a mayday, to which the U.S. Coast Guard responded. He then searched for his female partner. He found her lying dead, face down in the water.

The woman’s daughter, who was also the executor of her mother’s estate, filed a wrongful death lawsuit against the boat’s owner, the owner of Raccoon Island, and the United States Government. The claim against the government was based on the Coast Guard’s alleged negligence in failing to properly mark the Jekyll Island jetty. In March 2013, U.S. District Judge Lisa Godbey Wood of Brunswick granted the government’s motion for summary judgment, holding the Coast Guard was immune from lawsuits challenging its discretionary “placement of navigation aids.”

The estate also said the owner of Raccoon Island, a limited liability company, was liable for hosting a party where drugs and alcohol were served to people they knew were operating boats. The company failed to respond to the estate’s lawsuit in a timely manner. In August 2014, Judge Wood therefore entered default judgment for the estate and ordered the company to pay damages of $2 million.

This left the boat’s owner as the sole remaining defendant. Judge Wood held a one-day bench trial in July 2014. On July 10 of this year, she rendered her decision. The estate based its wrongful death claims on both federal admiralty jurisdiction and Georgia law governing the operation of motorboats.

At trial, the boat owner testified his partner was operating the boat at the moment of the accident. The other passenger could not see who was driving. Although the owner normally operated his own boat, he testified his partner had ample experience operating the vehicle in and around Jekyll Island. He also said he was unaware of her consumption of illegal drugs at the party.

In the absence of any evidence to the contrary, Judge Wood found the owner’s testimony credible. Although police investigators concluded the accident was the result of “driver inattention,” Judge Wood said there was “insufficient evidence” proving, as the estate alleged, the owner was actually driving the boat when it hit the jetty. And even if the owner was somehow negligent in allowing his impaired partner to operate the boat, Georgia law would not permit the estate to recover based on the deceased’s negligence. Accordingly, Judge Wood entered judgment for the boat owner.

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“Get your story straight” is good advice in life, and particularly when dealing with litigation. When a party to a personal injury lawsuit offers contradictory testimony, it can have a devastating effect on their case. In Georgia, courts enforce what is known as the Prophecy rule, which holds “when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must construe the contradictory testimony against him.” This means if you offer two accounts of what happened, the judge must disregard the account most favorable to your case.

Whole Foods Market Group, Inc. v. Shepard

But it is not always obvious when a party has run afoul of the Prophecy rule. For example, a seven-judge panel of the Georgia Court of Appeals sharply divided recently on whether a defendant in a motor vehicle accident case fatally contradicted his own testimony. The majority sided with the plaintiff and the trial judge’s decision to award him partial summary judgment.

This case involves a two-vehicle accident between a car and a truck. The plaintiff was driving the car. Both vehicles were traveling southbound on Interstate 75. At some point, the front wheel of the defendant’s truck hit the rear wheel of the plaintiff’s car, causing the latter vehicle “to spin out of control and collide twice more with the truck.” Neither driver saw the other prior to the collision.

The plaintiff subsequently sued the defendants—the truck’s driver and owner—for negligence. The plaintiff claimed the defendant truck driver caused the accident when he attempted to change lanes. Under Georgia’s Uniform Rules of the Road, a “vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” A driver who fails to follow this rule is presumed negligent.

So the critical question was whether the defendant improperly switched lanes. At a sworn deposition, the defendant testified, “I don’t know that I ever left my lane. I started towards [the plaintiff’s] lane, and when I started to turn my steering wheel a bit, I felt a vibration [from the plaintiff’s car]. I straightened, turned it back straight up, straightened out in my lane and had let up on the accelerator.”

Some time later, the defendant signed an affidavit confirming an earlier accident report he gave to his employer. In this written statement, the defendant reiterated he “started to change lanes” when he felt a vibration, at which time he “pulled back into the lane [he] was in.”

The trial judge saw this written statement as contradicting the earlier deposition. As the court viewed it, the defendant was now admitting he was improperly in the plaintiff’s lane, as he had to “pull back” into his original lane. The judge accordingly disregarded the conflicting testimony and granted the plaintiff partial summary on the issues of liability and negligence. By a vote of 4-3, the Court of Appeals affirmed the trial court’s decision. Judge Christopher J. McFadden, writing for the majority, said there was no question the Prophecy rule applied here, as the defendant failed to “address the conflict with his statements that, upon feeling the impact of the collision, he pulled ‘back in’ his lane.”

In a dissenting opinion, Judge Stephen Louis A. Dillard said the majority was too literal in focusing the words “back in.” Looking at the “whole impression” of the defendant’s statements, Judge Dillard said a jury could conclude from both the defendant’s deposition and affidavit he was telling the same story—namely, that “he began moving toward [the plaintiff’s] lane; that when he did so, he felt a vibration; and that, upon feeling an impact, he moved or straightened his vehicle ‘back’ in his lane of travel.” As Judge Dillard saw it, the defendant’s affidavit merely expanded upon his deposition testimony; it did not conflict with it.

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On July 13, the Georgia Supreme Court issued an interesting decision regarding the use of expert witnesses in medical malpractice cases. Georgia law requires a person alleging malpractice present an affidavit from “an expert competent to testify” as to the medical provider’s negligent act. Without such an affidavit, the trial court must dismiss the lawsuit.

Dubois v. Brantley

In this case, the plaintiff suffered serious complications following surgery to repair a hernia. This was an outpatient procedure, but a few days after the surgery, the plaintiff returned to the hospital, showing symptoms of pancreatitis. He later slipped into a coma and required nearly a month of intensive care and several additional surgeries.

The plaintiff later sued the hospital and the doctor who performed the original hernia surgery. Specifically, the plaintiff accused the doctor of puncturing his pancreas with a sharp surgical instrument known as a trocar. To comply with Georgia law, the plaintiff included an affidavit from a practicing general surgeon who routinely uses trocars to perform abdominal procedures. The affidavit said a physician observing the “applicable standard of medical care” should not have punctured the plaintiff’s pancreas with a trocar “unless the pancreas is located unusually, anatomically speaking,” which the expert said did not appear to be the case here.

The defendants—the hospital and the doctor accused of malpractice—moved to dismiss the lawsuit on the grounds the plaintiff’s expert, while an experienced abdominal surgeon, had apparently only performed the exact type of hernia procedure at issue in this case just once in the preceding five years. The trial judge disagreed and found the expert qualified.

Normally, an appeals court defers to a trial court’s decision with respect to whether an expert is qualified. But here, the Georgia Court of Appeals reversed the trial judge, holding it was an “abuse of discretion” to admit the expert’s affidavit. The appeals court agreed with the defendants the expert was not competent to testify as to the specific hernia procedure.

The Georgia Supreme Court reinstated the trial court’s decision, however, unanimously holding the Court of Appeals misunderstood the rules governing expert testimony. Justice Keith Blackwell, writing for the Supreme Court, said the appeals court defined the requisite level of expertise too narrowly in this case. The expert here may not have performed the exact same procedure as the defendant physician, but he did regularly perform similar procedures using a trocar. Furthermore, the law does not require an expert actually perform the exact same procedure as the defendant, only that he possess “an appropriate level of knowledge” regarding the procedure. Given the expert here is only offering his opinion regarding the proper use of a trocar, not how to perform the entire hernia surgery, the trial judge was within his discretion to allow the affidavit.

It is important to emphasize the limited nature of the Supreme Court’s decision. As Justice Blackwell said in a footnote to his opinion, had the trial judge decided the expert’s testimony was inadmissible, that would not have been an abuse of discretion either. Nor is the Supreme Court opening the door for experts in future cases to offer opinions on procedures where they lack sufficient knowledge.

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As a general rule, a property owner is liable for any dangerous conditions that he knows about or reasonably should have known about. The former is known as “actual notice,” while the latter is “constructive notice.” This applies not just to private property owners, but also city and county governments, as a recent decision by the Georgia Court of Appeals illustrated.

City of Fitzgerald v. Caruthers

In this case, the victim himself was a municipal employee. While walking home one night from his job at the City of Fitzgerald’s public works department, a tree limb fell on the victim, knocking him unconscious and leaving him with serious injuries to his back, neck and eye.

The city’s public works director later visited the site of the accident and saw the rotted tree limb next to a decaying tree. He ordered the tree’s removal, although he did not document the work request or take pictures of the tree. The victim later observed the tree’s removal and noticed its stump had clearly rotted parts.

The victim subsequently sued the city for premises liability. The city moved for summary judgment, arguing, among other things, it was entitled to sovereign immunity. The trial court denied summary judgment, and on appeal, the Court of Appeals agreed the case should proceed to trial.

Judge M. Yvette Miller, writing for a unanimous three-judge panel of the Court of Appeals, said sovereign immunity did not apply in this case. Sovereign immunity prevents someone from suing the state or a municipality for failure to exercise a discretionary function. Victims may still sue when a government agency fails to perform a non-discretionary or “ministerial” duty. Here, Georgia law expressly states “municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred.”

In other words, the city can be held liable here if it had actual or constructive notice of the defective tree and failed to remove it in a timely manner. Judge Miller said both questions were for a jury to decide. The city may have had actual notice, the judge observed, as the director of public works admitted his department did not keep proper records of complaints regarding defective tree limbs. But even if the city did not have actual notice, it may still have had constructive notice, based on the director’s and the victim’s testimony the defective tree in question had clearly been decaying for some time before the accident.

The issue for the jury will be to determine whether or not the average person would have noticed something wrong with the tree. For instance, neither the director nor the victim were themselves tree experts. Yet both could tell the tree was in poor shape. That suggests the city, which employed 38 people to maintain the public streets, should have discovered the defective tree before the date of the accident.

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In Georgia, most dog owners can be held liable if their animal bites or injures someone. Unfortunately, “most dog owners” do not include police officers, according to a recent Georgia Supreme Court decision. The justices reversed a lower appeals court which previously held a police officer could be sued for failure to control a police dog that injured an 11-year-old child.

Eshleman v. Key

The defendant in this case is a DeKalb County police officer who is responsible for the care of a police dog. The officer keeps the dog at her home in Walton County. In November 2011, the officer placed the dog in a portable kennel outside her home. Due to the officer’s apparent failure to secure the kennel door, the dog escaped and encountered the child of one of the officer’s neighbors. The dog subsequently attacked the child, seriously injuring his arm.

Under Georgia law, “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.” Accordingly, the child’s father sued the police officer for negligence.

But the police officer argued she could not legally be held responsible. The Georgia Constitution provides state employees, including police officers, cannot be sued “for the performance or nonperformance of their official functions.” A state employee can only be sued for negligence in performing a “ministerial function,” that is carrying out a duty specifically required by law. When an employee is allowed to exercise discretion in performing her duties, she is immune from lawsuit.

Both the trial court and the Georgia Court of Appeals held the police officer in this case was exercising a ministerial function and therefore not entitled to immunity. The Georgia Supreme Court disagreed. In a unanimous June 29 opinion, the justices said the while the officer may have “owed a duty to manage or restrain” her police dog to prevent it from injuring others, this did not render the officer’s actions ministerial. “Ordinary care to restrain an animal requires the taking of reasonable measures to keep the animal restrained,” the Court explained, and that necessarily means individual owners have to exercise “personal deliberation and judgment.”

Similarly, the Court said the father could not sue the police officer for violating a Walton County ordinance requiring all animals be “kept under proper restraint” to avoid injuring others. Again, the Court said this imposed only a general duty of care and left to individual owners “the choice of reasonable measures.” In order to be considered a ministerial duty, the law must direct “the carrying out of a specified task.”

One way to impose a ministerial duty is for a state agency to implement specific policies requiring employees to act in a certain manner. As the Supreme Court noted in this case, DeKalb County did not give any “specific direction” to its officers on how to handle police animals during off-duty officers. Ultimately, the county’s lack of policy deprived the victim of his day in court.

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In Georgia, an employer is normally liable for the tortious acts of its employees. This is known as the doctrine of “respondeat superior.” But what happens when an employee injures someone outside the scope of their employment? A federal judge in Valdosta recently addressed such a situation.

United States Liability Insurance Company v. Jenkins

A couple enrolled their three-year-old child at a daycare center. One day, an employee of the daycare took the child out in her personal vehicle to go on a shopping trip. Neither the parents nor the daycare center owner gave permission for the employee to remove the child from the daycare center. While at a convenience store, the employee hit and injured the child with her personal vehicle.

The parents sued the daycare center owner in Georgia state court. That case remains pending. The daycare owner has a commercial general insurance policy that covers damages arising from “bodily injury” to third parties. But given the parents admitted in their own lawsuit the employee here was acting outside the scope of her employment, the insurance company maintains it is not responsible for any damages recovered in the state lawsuit. To that end, the insurance company sued the parents in federal court, seeking a declaratory judgment to that effect.

The insurance company moved for a judgment on the pleadings, in effect arguing they were entitled to a declaratory judgment as a matter of law. On June 16, U.S. District Judge Hugh Lawson largely denied this motion. Judge Lawson did not rule on the merits of the parents’ state lawsuit, be he did find they presented a plausible claim sufficient to avoid an immediate ruling in favor of the insurance company.

As noted above, the parents are not arguing respondeat superior in this case. Instead, their state-law claims are based on the theory that the daycare center was negligent in its supervision of their child and its employees. Under Georgia law, “a person who undertakes the control and supervision of a child … has the duty to use reasonable care to protect the child from injury.” The parents maintain the daycare owner’s breach of this duty was the proximate cause of their child’s injuries. Similarly, they argue the daycare owner “was aware of the culture at the daycare center resulting from an overwhelming lack of supervision and failure to abide” by industry standards for childcare.

Assuming these allegations are true, as Judge Lawson did for the immediate purposes of the insurance company’s motion, the parents have stated a viable claim against the daycare owner which, in turn, falls within the scope of the commercial general liability policy. That is to say, they stated a claim regarding the negligent acts of the owner, who is unquestionably covered by the policy, as opposed to the employee, who is not.

Judge Lawson did grant the insurance company relief on one issue, however. The daycare owner’s policy expressly disclaims coverage for any “punitive or exemplary damages.” This language is unambiguous, the judge said, and even the parents acknowledged its validity. This means the insurer will only be liable for any compensatory damages recovered by the parents in their state lawsuit, not punitive damages.

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The rules of the road are not the same for all vehicles. Emergency vehicles including fire trucks, police cars and ambulances enjoy certain legal privileges. Under Georgia law, when such vehicles are actually “responding to an emergency call,” they can run red lights or stop signs without stopping. However, emergency vehicles must still “slow down as may be necessary for safe operation” and operators have the same duty “to drive with due regard for the safety of all persons” as any other motorist.

Brown v. DeKalb County

Here is a recent example of how Georgia courts apply the emergency vehicle doctrine. This case arises from a 2011 accident in DeKalb County. A county fire truck collided with another vehicle which had five passengers, including three children. The passengers subsequently sued DeKalb County.

The fire truck was responding to an emergency call. The truck’s red emergency lights were flashing, which the firemen said could be seen at least 500 feet away. But it had been raining heavily that day, and the drivers of both vehicles testified they never saw the other prior to impact. Two firemen riding on the fire truck said they did see the other vehicle, but they had no time to warn the driver.

The parties disagreed as to who hit whom. There was no disagreement the fire truck entered the intersection during a red light. The plaintiffs said the fire truck hit their vehicle. Other witnesses at the scene said the car entered the intersection, with a green light, and hit the fire truck. There was also disagreement over how fast the fire truck was traveling. One of the plaintiffs guessed the fire truck was doing at least 60 miles per hour. The firemen and other witnesses testified the truck “was moving at a slow rate of speed.”

Based on all this evidence, the trial court granted summary judgment to the county. But the Georgia Court of Appeals reversed. In a June 17 opinion, a three-judge panel said the disagreement over the fire truck’s speed was enough to defeat summary judgment. If the fire truck was, as the plaintiff testified, traveling through a red-light intersection at 60 to 70 miles per hour, a jury could conclude the driver failed to engage in “safe operation” and exercise “due regard for the safety of all persons.”

The trial judge apparently disregarded the plaintiff’s testimony regarding the estimated speed of the fire truck because she was a layperson without specialized knowledge. But as the Court of Appeals explained in a footnote to its decision, such lay testimony “is admissible under the new Evidence Code” in Georgia. Here, the plaintiff is allowed to offer her own “estimate of the fire truck’s speed [] based upon her first-hand perception of the impact.” The county is free to challenge the plaintiff’s estimate with its own evidence, as it did with the expert reconstruction report. But it is ultimately for the jury to weigh the credibility of the plaintiff’s testimony.