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Posted by Susan J. Levy

The facts giving rise to this wrongful death action are as follows: Janet Weston was driving eastbound on Cut Off Road in Glynn County towards its intersection with SR 303, where Cut Off Road deadends. Weston, et al. v. Dun Transp. & Stringer, Inc., et al., 2010 Ga. App. LEXIS 404 (2010). The intersection was controlled only by a stop sign for traffic on Cut Off Road, giving through traffic on SR 303 the right of way. As Mrs. Weston approached the stop sign, there was a stalled, yellow, front-end loader parked westbound on Cut Off Road, with its back end blocking the southbound deceleration lane on SR 303. The loader blocked the view from Cut Off Road, left toward southbound traffic approaching the intersection on SR 303. When Mrs. Weston began to turn left to travel north on SR 303, she was struck and killed by a tractor-trailer traveling south on SR 303. Id.

Plaintiff, the decedent’s husband, alleged negligence against the company that repaired the loader the previous day, the owner of the loader and its driver for continuing to drive the loader after it had already stalled once, and the tractor-trailer driver for driving too fast for conditions. Id. at *5, *6.

The Court of Appeals affirmed the trial court’s order granting defendants’ motions for summary judgment pursuant to the doctrine of avoidable consequences, which provides that “[i]f the Plaintiff by ordinary care could have avoided the consequences to [herself] caused by the Defendant’s negligence, [the Plaintiff] is not entitled to recover.” O.C.G.A. § 51-11-7. Specifically, the Court stated:

The plaintiff must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the defendants’ negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [The plaintiff] must make use of all of [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].

Weston at *7. (quoting Lowery’s Tavern v. Dudukovich, 234 GA. App. 687, 690 (1998)). Recognizing that the issue of whether Plaintiff’s decedent exercised due diligence for her own safety is typically reserved for the jury, the Court nevertheless found that the issue could be resolved on summary judgment when the Plaintiff’s knowledge of the risk is “clear & palpable.” Weston at *8. Because Plaintiff Weston failed to produce evidence that his wife lacked knowledge of the obvious risk posed by the front-end loader, the Court affirmed defendants’ motion for summary judgment pursuant to the doctrine of avoidable consequences. O.C.G.A. § 51-11-7.

The Court’s decision in Weston signals an opportunity for defendants to prevail on summary judgment when in the past, we typically had to persuade juries that “if you can’t see, don’t go!”