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When you are in a crash caused by a DeKalb County Police officer or emergency vehicle, be aware that when the sirens and lights are activated, you will have a hard time getting liability. As the recent appellate decision, we discuss below points out, admitting you did not see or hear them is not the same as evidence that the lights and siren were not on. Be sure to get a lawyer involved early if you are in a crash with a government vehicle, here is an article on suing the counties and cities.
In a recent decision, Brown v. DeKalb Cnty., the Georgia Court of Appeal addressed an interesting question: under what circumstances is the driver of an emergency response vehicle negligent when responding to an emergency? It is obvious that certain maneuvers that would be unreasonable for an ordinary driver would be considered reasonable for someone driving to provide emergency assistance, but how much can an emergency vehicle driver deviate from common driving practices before his conduct may be deemed negligent?
The evidence, as viewed in the light most favorable to the plaintiff, shows that in May 2011, one of the plaintiffs, in this case, was driving a vehicle containing the other plaintiff and her three children. The vehicle he was operating collided with a DeKalb County fire truck. Both plaintiffs testified that they did not see or hear the truck prior to the collision, and the driver of the fire truck testified that he did not see the car before the impact. However, two other occupants of the fire truck testified to having seen the plaintiff’s vehicle before the collision, but they had insufficient time to warn the driver.
There was conflicting testimony with respect to which vehicle struck the other as the plaintiff’s vehicle was advancing through a green light and the fire truck was passing through a red light. The driver and the two occupants of the fire truck testified that the truck’s siren was activated at the time and that the intersection was clear of traffic when the truck entered the intersection, but the plaintiffs testified that they did not see lights. An accident reconstruction expert testified that the plaintiff’s vehicle had been moving at a constant speed of 29 mph for the 213 feet prior to making the impact with the fire truck. It was raining at the time of the accident, but there was conflicting evidence regarding the severity of the rain.
There was also conflicting testimony regarding the fire truck’s rate of speed at the time of the accident. The occupants of the fire truck and an independent witness testified that the truck was moving at a slow rate, but one plaintiff testified that the truck was, in her estimation, traveling at least 60 mph. The plaintiff based this estimation on the how the impact felt and the fact the vehicle’s airbags deployed, but she admitted that she did not see what damage there was to the fire truck, did not see the truck prior to the collision, had never been in an accident with a truck traveling at a high rate of speed before, and did not have relevant educational experience in accident reconstruction or engineering.
Following the accident, the plaintiff brought suit for physical injury and property damage against various defendants, including DeKalb County. The defendants moved for summary judgment at the close of discovery. The trial court denied the motion, and the defendants brought this interlocutory appeal. The Georgia Court of Appeal permitted the appeal and reversed the trial court’s denial of summary judgment.
The Georgia Court of Appeal started its analysis by examining O.C.G.A. § 40-6-6, which sets forth a privilege for drivers of emergency vehicles responding to an emergency call. In relevant part, the statute provides:”The driver of an authorized emergency vehicle or law enforcement vehicle may: . . . [p]roceed past a red or stop signal . . . , but only after slowing down as may be necessary for safe operation; . . .The exceptions granted . . . shall apply only when such vehicle is making use of an audible signal and use of a flashing or revolving red light visible under normal atmospheric conditions from a distance of 500 feet . . . .The foregoing provisions shall not relieve the driver . . . from the duty to drive with due regard for the safety of all persons . . . .”
First, the plaintiffs argued that the privileges afforded by O.C.G.A. § 40-6-6 were unavailable because there were genuine questions of material fact concerning the atmospheric conditions and whether the signal lights were on. The court disagreed. With respect to whether the sirens were operating, the Court of Appeals noted that the plaintiff’s testimony was circumstantial evidence that the lights were not activated. However, this circumstantial evidence could be construed consistently with direct evidence that the signals were operating, and thus the conflicting fact to be drawn from the circumstantial evidence need not be inferred. See Brown v. GeorgiaCarry.Org, Inc., 331 Ga. App. 890, 894 (2015).
In effect, the testimony only showed that the plaintiff did not see the lights, not that the lights were not actually operating. Given that there was other evidence indicating the lights were on that could consistently be construed with the plaintiff’s testimony, the testimony did not create an issue of fact with respect to whether the lights were being operated. The court found the same to be true with respect to the testimony indicating that there was “pouring rain,” from which one would infer the lights were not visible from a sufficient distance.
Next, the court found that the plaintiff’s testimony regarding the speed of the vehicle did not create an issue of fact. For a lay opinion to have the proper foundation to be considered on a motion for summary judgment, it must be “[r]ationally based on the perception of the witness.” O.C.G.A. § 24-7-701 (a)(1). The court determined that this testimony was not rationally related to the plaintiff’s perception because the plaintiff testified that she had never been in a collision with a vehicle traveling at that speed before and had no experience in accident reconstruction or engineering. Therefore, the plaintiff had no rational reference for her perception, and the lay opinion lacked sufficient foundation. The Court of Appeal noted that, although the speed of a vehicle is considered the quintessential example of admissible lay opinion evidence, the circumstance here still did not allow its consideration, for there was no sufficient factual foundation for this plaintiff’s lay opinion about a vehicle she never saw in motion. Therefore, the court concluded there was no issue of material fact and reversed the trial court’s denial of summary judgment.
As Brown demonstrates, what appears to be a simple accident can lead to ample evidentiary conflicts and various disputes regarding the proper inferences and conclusions to be drawn from the conflicting evidence. Accordingly, even if your auto accident seems like it would be simple to resolve, you should consider finding counsel who can provide assistance should the superficial simplicity give way to unexpected complication.