Rosenfeld v

Rosenfeld, 286 Ga. App. 61, 648 S.E.2d 399 (2007), cert. denied, 2007 Ga. LEXIS 613 (Ga. 2007). Gross negligence may encompass ordinary negligence. — When the plaintiff sets forth facts and alleges acts of omission and commission on the part of the defendant which amount to gross negligence; and thereafter sets forth additional facts which would give rise to a duty on the part of the defendant to exercise ordinary care, and alleges that the same acts of omission and commission amount to ordinary neglect, such allegations would not be inconsistent, since any acts of omission or commission which amounted to the want of that care which is characterized as gross negligence would necessarily show an absence of that care which amounts to ordinary neglect. Blanchard v. Ogletree, 41 Ga. App. 4, 152 S.E. 116 (1929). Effect of res ipsa loquitur. — Res ipsa loquitur is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another when it is shown that the defendant owned, operated and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage, and the accident was of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence. Hall v. Chastain, 246 Ga. 782, 273 S.E.2d 12 (1980). Rule of res ipsa loquitur applies only when the plaintiff does not know what caused the accident and negligence may be presumed from the fact that an accident occurred. Minkovitz v. Fine, 67 Ga. App. 176, 19 S.E.2d 561 (1942). 23 Pleading and Practice (Cont’d) Gross negligence not presumed on basis of res ipsa loquitur. — While the rule of evidence expressed in the maxim res ipsa loquitur may make out a prima facie case of ordinary negligence, it is insufficient in itself to make out a prima facie case of gross negligence. Minkovitz v. Fine, 67 Ga. App. 176, 19 S.E.2d 561 (1942). Defendant’s burden when negligence presumed. — If, considering all the surroundings and accompanying circumstances, an event is such as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and this places upon the defendant the burden of explaining the cause of the occurrence. McCann v. Lindsey, 109 Ga. App. 104, 135 S.E.2d 519 (1964). Jury Instructions Omission of words ‘‘every prudent man’’ from an instruction applying this section was fatal. Brown Store Co. v. Chattahoochee Lumber Co., 1 Ga. App. 609, 57 S.E. 1043 (1907). Words ‘‘ordinary care’’ are self-explanatory, and furnish the jury with degree of care required of defendant in case, in the absence of a timely request for a further definition, and the same can also be said to be true of the words ‘‘due care.’’ Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 50 S.E.2d 136 (1948). No jury instruction need be given absent a request. — In the absence of a written request for the court to define to the jury the meaning of ‘‘ordinary and reasonable care and diligence,’’ there was no error in the omission to do so. It is doubtful if any specific definition would enlighten the jury, or make any clearer the plain meaning of these simple words. Georgia Power Co. v. Whitlock, 48 Ga. App. 809, 174 S.E. 162 (1934); City of Camilla v. May, 70 Ga. App. 136, 27 S.E.2d 777 (1943). Instruction based on former Code language not error when new Code language was substantially similar. — There being no substantial difference be- 51-1-2 tween the definitions of ordinary care given in the Civil Code of 1910 and in the Code of 1933, in a damage suit based on the negligence of the defendant, it was not prejudicial error requiring the grant of a new trial for the court to give in a charge to the jury the definition as contained in the former Civil Code of 1910, rather than that contained in the Code of 1933. Pollard v. Duffee, 56 Ga. App. 523, 193 S.E. 258 (1937); Pollard v. Boatwright, 57 Ga. App. 565, 196 S.E. 215 (1938). Standard of ordinary diligence not variable. — Court erred in charging that the standard of ordinary diligence is variable; the standard of ordinary diligence is invariable. Wilson v. Garrett, 92 Ga. App. 820, 90 S.E.2d 74 (1955); Tudor v. Bodeker, 94 Ga. App. 191, 94 S.E.2d 63 (1956). Trial court erred in charging that the precise legal term ‘‘ordinary care’’ must in the nature of the case depend upon the circumstances of each individual case. Tudor v. Bodeker, 94 Ga. App. 191, 94 S.E.2d 63 (1956). Care in manufacturing bottled drinks. — Court did not err in the instructions to the jury as to the care and diligence required of one manufacturing bottled drinks for sale, or in charging that ‘‘if the defendant was not negligent and did exercise ordinary care, and any foreign substance got into the bottle notwithstanding ordinary care, that would be what the law designates as an unavoidable accident, for the occurrence of which the defendant would not be liable.’’ Hathcox v. Atlanta Coca-Cola Bottling Co., 50 Ga. App. 410, 178 S.E. 404 (1935). Care in operating automobile. — While it is error to charge the jury that the degree of care exercised must be such as would or could prevent injury to others, it is not error to charge that a defendant in the operation of the defendant’s car is required to use ordinary care to prevent injury to others as in such case the requirement that the defendant be in the exercise of ordinary care is, in fact, for the purpose of preventing injury to others. Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834 (1940). Deficient charge on negligence. — Charge which implied that negligence is 24 the breach of an absolute duty to avoid injuring others rather than a failure to exercise ‘‘that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances’’ was deficient, and the court’s failure to give a correct charge on this fundamental principle was reversible error. T.J. Morris Co. v. Dykes, 197 Ga. App. 392, 398 S.E.2d 403 (1990). No charge required when request was withdrawn. — There was no error in a trial court’s failure to give jury instructions regarding ordinary negligence claims under O.C.G.A. § 51-1-2 as a patient’s widow’s counsel had withdrawn the jury instruction on ordinary negligence in order to allow the matter to proceed to consideration by the jury on just the issues of professional negligence in the widow’s action, alleging, inter alia, medical malpractice. Sagon v. Peachtree Cardiovascular & Thoracic Surgs., P.A., 297 Ga. App. 379, 677 S.E.2d 351 (2009). Negligence as Jury Question Negligence is jury question except in indisputable cases. — Questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff ’s injuries are, except in plain, palpable, and indisputable cases, solely for the jury, and the courts will decline to decide such questions unless reasonable minds cannot differ as to the conclusions to be reached. Bohler v. Ownes, 60 Ga. 185 (1878); Atlanta, B. & C.R.R. v. Smith, 43 Ga. App. 457, 159 S.E. 298 (1931); Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932); Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933); Mason v. Frankel, 49 Ga. App. 145, 174 S.E. 546 (1934); Tybee Amusement Co. v. Odum, 51 Ga. App. 1, 179 S.E. 415 (1935); Eubanks v. Mullis, 51 Ga. App. 728, 181 S.E. 604 (1935); Knowles v. La Rue, 102 Ga. App. 350, 116 S.E.2d 248 (1960); Pannell v. Fuqua, 111 Ga. App. 18, 140 S.E.2d 280 (1965); Krystal Co. v. Butler, 149 Ga. App. 696, 256 S.E.2d 96 (1979); Manheim Servs. Corp. v. Connell, 153 Ga. App. 533, 265 S.E.2d 862 (1980); Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495 (1980); 51-1-2 McKeighan v. Long, 154 Ga. App. 171, 268 S.E.2d 674 (1980); Garner v. Driver, 155 Ga. App. 322, 270 S.E.2d 863 (1980); Sugrue v. Flint Elec. Membership Corp., 155 Ga. App. 481, 270 S.E.2d 921 (1980); Shannon v. Walt Disney Prods., Inc., 156 Ga. App. 545, 275 S.E.2d 121 (1980); Herren v. Abba Cab Co., 155 Ga. App. 443, 271 S.E.2d 11 (1981); Lozynsky v. Hutchinson, 159 Ga. App. 715, 285 S.E.2d 70 (1981). In Georgia, the question of negligence is almost always a question for the jury. Fraley ex rel. Fraley v. Lake Winnepesaukah, Inc., 631 F. Supp. 160 (N.D. Ga. 1986). Contributory negligence also jury question. — One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care. In plain and palpable cases, it will be so held as a matter of law; otherwise, questions as to such negligence as well as other questions of negligence by the parties, and as to the proximate cause of the injury, present issues for the jury. Central of Ga. Ry. v. Jones, 43 Ga. App. 507, 159 S.E. 613 (1931); Laseter v. Clark, 54 Ga. App. 669, 189 S.E. 265 (1936); Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495 (1980). In an action against a railroad company for injuries received by a person lawfully upon a railroad crossing, the question of what such person must or must not do, in order to free oneself of guilt of lack of ordinary care constituting the proximate cause of one’s injury, is a question for the jury. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946). Questions of willful and wanton negligence. — Exact point when ordinary negligence or the lack of ordinary care passes into and becomes willful and wanton negligence is a question for the jury, under definite instruction from the trial judge that the facts must show that the failure to exercise ordinary care was not only negligence but that it amounted to willful and wanton negligence. Humphries v. Southern Ry., 51 Ga. App. 585, 181 S.E. 135 (1935). Questions of gross and slight negligence. — Questions of negligence and diligence, even of gross negligence and slight diligence, are matters which should usually be determined by a jury. Pitcher v. 25 Negligence as Jury Question (Cont’d) Curtis, 43 Ga. App. 622, 159 S.E. 783 (1931). Except when a particular act is declared to be negligence, either by statute or by valid municipal ordinance, the question as to what acts do or do not constitute negligence is for determination by the jury. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932). Condition of utility pole as contributing cause. — When genuine issues of material fact remain in a tort case as to whether the condition of a utility pole was a contributing cause to the injuries sustained, any grant of summary judgment is contrary to law and expressly disavowed. Collins v. Altamaha Elec. Membership Corp., 151 Ga. App. 491, 260 S.E.2d 540 (1979). Negligence of child guest. — In automobile collision cases, whether a child guest of tender years exercised the measure of due care required by the Code under the actual circumstances of the occasion and situation, is a question peculiarly for a jury, and not a question of law to be decided by the court, except in clear and palpable cases. Eddleman v. Askew, 50 Ga. App. 540, 179 S.E. 247 (1935). Negligence of pedestrian. — When a 51-1-2 pedestrian, after passing between two parked automobiles, looked to the pedestrian’s left for traffic, but instantly, and before the pedestrian had time to look to the pedestrian’s right, was struck and injured by an automobile being driven on the left side of the street, that is ‘‘astraddle’’ and to the left of the center of that street, and since the pedestrian could have seen the automobile had the pedestrian had time to look to the pedestrian’s right, and the driver of the automobile could have seen the pedestrian had the driver been looking, and when the street to the right of the driver of the automobile at this point was clear and could have been used by said automobile at the time of the accident, it was a question for a jury to determine whose negligence was responsible for the injury. Eubanks v. Mullis, 51 Ga. App. 728, 181 S.E. 604 (1935). Expert opinion not supported by records. — Medical records that provided no information about the patient’s second visit to the emergency room, the timing of the discovery of a ruptured appendix, or the exploratory surgery that resulted in an appendectomy were too general to support an expert’s conclusion that the doctors’ conduct proximately caused the patient’s injuries. Jones v. Orris, 274 Ga. App. 52, 616 S.E.2d 820 (2005).