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COURT OF APPEALS REVERSES ITSELF ON LAY WITNESS OPINION OF SPEED

Posted by Susan J. Levy and Layne Zhou

On July 28, 2015, the Georgia Court of Appeals reversed itself on the issue of whether lay testimony as to speed, based only on the experience of impact, constituted admissible evidence to defeat summary judgment. Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015).

On May 3, 2011, Plaintiffs were driving on Custer Avenue, attempting to cross Moreland Avenue, when they crashed into the front of a DeKalb County fire truck entering the intersection on Moreland Avenue, en route to an emergency call, with lights and sirens activated, and the air horn sounding.

DeKalb County, represented by Levy & Pruett, filed a Motion for Summary Judgment on the grounds that there was no evidence that the firefighters breached any duty or that any alleged breach constituted the proximate cause of this collision. The trial court agreed and entered summary judgment for DeKalb County on April 1, 2014. Plaintiffs then appealed the trial court’s Order. Surprisingly, on June 17, 2015, the Court of Appeals reversed the trial court’s grant of summary judgment because “a genuine issue of material fact exists as to whether the fire truck proceeded past the red signal ‘only after slowing down as may be necessary for safe operation’ OCGA ยง 40-6-6 (2), and ‘with due regard for the safety of all persons.'” Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015)

Specifically, the Court relied on the Plaintiff passenger’s “guesstimate” that the fire truck was traveling 60-70 mph at the time of impact, based only on how the impact felt, and reasoned that there was a question of fact as to whether the fire truck slowed down before entering the intersection.

On June 25, 2015, we filed a Motion for Reconsideration on behalf of the County, arguing that the Court of Appeals’ opinion that an individual can testify to the speed of a vehicle based only her subjective experience of the collision was without precedent. Moreover, we argued that the Court failed to address the case of Boatner v. Sims, 115 Ga. App. 284 (1967), which specifically found that evidence of speed with nothing more than the witness’s self-serving testimony based on experiencing the impact, was inadmissible.

A month later, on July 28, 2015, the Court of Appeals issued a second opinion granting in full DeKalb County’s Motion for Reconsideration, a rarity in appellate procedure. In a complete reversal, the Court found that Plaintiff’s “testimony that the car was traveling 60 to 70 mph could not be rationally based [only] on her perception of how the impact felt” because she was not an accident reconstructionist and had never before been hit by a car traveling at that speed. Brown v. DeKalb County, et al., A15A0265 and Little et al. v. DeKalb County et al.,A15A0267, 1-9, 7 (Ga. App. July 28, 2015). On reconsideration, the Court of Appeals relied on Boatner v. Sims, emphasizing the lack of a rational link between Plaintiff’s opinion based only on experiencing the impact and the speed of a vehicle she never saw.