FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules
June 24, 2026
In the Court of Appeals of Georgia
A26A0421. SCOTT et al. v. EVANS DELIVERY COMPANY,
INC. et al.
BARNES, Presiding Judge.
In concluding that the doctrine of avoidable consequences was a complete bar
to recovery in this complaint for negligence resulting in the death of Alexander Scott,
the trial court granted summary judgment to Evans Delivery Company, Inc., and
Marvin Colbert (hereinafter, “the Defendants”). On appeal, Lanea Scott, individually
and as Administrator of the Estate of Alexander Scott (hereinafter, “Scott”),
contends that fact questions remain regarding whether Alex Scott could have avoided
the accident, thus precluding summary judgment under the avoidable consequences
doctrine. Scott also contends that the evidence showed that the Defendant’s conduct
was willful and wanton such that the grant of summary judgment was erroneous. Upon our review and for the reasons that follow, we reverse the trial court’s
judgment.
On a motion for summary judgment under OCGA § 9-11-56,
if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Thus, to prevail on a motion for summary
judgment, the moving party must demonstrate that there is no genuine
issue of material fact, so that the party is entitled to judgment as a matter
of law[.] A defendant may do this by either presenting evidence negating
an essential element of the plaintiff’s claims or establishing from the
record an absence of evidence to support such claims. Thus, the rule
with regard to summary judgment is that a defendant who will not bear
the burden of proof at trial need not affirmatively disprove the
nonmoving party’s case, but may point out by reference to the evidence
in the record that there is an absence of evidence to support any essential
element of the nonmoving party’s case. Where a defendant moving for
summary judgment discharges this burden, the nonmoving party cannot
rest on its pleadings, but rather must point to specific evidence giving
rise to a triable issue. Summary judgments enjoy no presumption of
correctness on appeal, and an appellate court must satisfy itself de novo
that the requirements of OCGA § 9-11-56 (c) have been met. In our de
novo review of the grant of a motion for summary judgment, we must
view the evidence, and all reasonable inferences drawn therefrom, in the
light most favorable to the nonmovant.
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(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623-624 (1) (a)
(697 SE2d 779) (2010).
So viewed, the evidence demonstrates that on September 13, 2022, Colbert, an
owner-operator of a tractor-trailer, was hauling a 53-foot container for Evans Delivery.
While driving from Savannah to Macon, at approximately 8 pm, his tractor-trailer
begin to decelerate, but he was able to turn on his emergency flashers and pull off the
right lane into the emergency lane of Interstate 16 before the engine cut off. The truck
stopped near the next exit ramp, or as the trooper who investigated the accident
testified, “right there at [the exit].” Although Colbert was parked in the emergency
lane, a portion of the trailer extended approximately two feet over the fog line into the
right lane of travel. According to Colbert, while parked on the shoulder, his emergency
flashers remained engaged and he placed three orange warning triangles behind the
trailer. Colbert deposed that the first triangle was ten paces from the trailer, the
second was placed 100 paces from the first triangle, and the third was placed 100 paces
from the second triangle. Although Colbert called his partner for assistance, his
partner was unable to repair the truck, but planned to return the next morning with
a part needed for the repair. Colbert testified that he attempted to have the truck
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towed, but was unsuccessful locating an available towing service. Colbert stayed with
the vehicle overnight and slept in a berth in the truck.
At approximately 5 a.m., the next morning, a tractor-trailer driven by Alexander
Scott (“Alex Scott”) collided with the left rear edge of Colbert’s trailer. The impact
caused Alex Scott’s truck and attached trailer to catch fire, and the responding trooper
later indicated on his report that “the truck and trailer were unidentifiable.” Alex
Scott escaped from his truck but died at the scene from injuries caused by the crash.
A dashcam containing video of the minutes leading up to the collision was recovered
at the crash site.
According the responding trooper’s report and testimony, based on his
investigation of the accident scene, Alex Scott had failed to maintain his lane which
caused him to crash into the Defendants’ truck. More specifically, according to the
trooper’s report, the video evidence recovered from Alex Scott’s dashcam of the
minutes leading up to the accident and the accident, “revealed that [Alex Scott] failed
to maintain lane and crossed the white fog line and struck the rear of the disabled
truck’s trailer.”
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One of Scott’s experts in accident reconstruction testified that at the time of the
impact, Alex Scott’s truck was “on or about the fog line and the lane paved edge,”
and that approximately two feet of the left side of the Defendants’ trailer extended
into the slow lane of travel on the highway. When questioned about whether his
opinion about the location of the Defendants’ truck was informed by the video
recovered from the dash cam, another of Scott’s experts, a former state trooper and
accident reconstructionist, testified that he “couldn’t tell heads or tails of where Mr.
Colbert’s truck was parked from it. It’s very blurry.”1 According to the expert, his
opinion about the truck’s location was based on the photographs taken by the
investigating state trooper. The expert opined that, contrary to the trooper’s finding
that Colbert’s trailer was entirely in the emergency lane, “my opinion ... is that the left
rear corner of [Colbert’s] trailer was actually in the lane of travel.”
Lanea Scott, the surviving spouse, brought the underlying complaint,
individually and as the administrator of Alex Scott’s estate, alleging a claim of
negligence against Colbert for, among other things, stopping his tractor-trailer on the
1
The expert referred to a second video of the collision that he had not yet viewed, but it is unclear from the context whether he is referring to an enhanced copy of the original video or an entirely separate video of the collision.
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shoulder of the road, impeding the right lane of travel, driving with reckless disregard,
and failing to exercise due care. Scott’s claim against Evans Delivery alleged that the
company was responsible for Colbert’s negligence, as well as independently negligent
in that it, among other things, hired Colbert and failed to train, monitor, and supervise
him regarding tractor trailer breakdowns.
The Defendants filed their answers and asserted various defenses, including
that Alex Scott was negligent and could have avoided injury by the exercise of ordinary
care. The Defendants also asserted counterclaims, including that Alex Scott had
negligently operated his tractor trailer by leaving his lane of travel and colliding with
the rear of Colbert’s trailer.
Following discovery, the Defendants filed a motion for summary judgment,
contending, among other things, that the affirmative defense of avoidable
consequences precluded Scott’s recovery. In support of their contention, the
Defendants relied, in large part, on the video from the dashcam in Alex Scott’s truck
allegedly showing that he had failed to use ordinary care to avoid colliding with
Colbert’s trailer by not maintaining his lane prior to the collision and also failing to
perceive and react to the presence of Colbert’s vehicle in the emergency lane. The
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Defendants asserted that the video provided the “best evidence” of the fact that Alex
Scott had failed to maintain his lane and also that Colbert’s truck was clearly visible
before the crash and that Alex Scott should have seen it and avoided it before the
collision.
In its subsequent order granting the Defendants’ motion for summary
judgment, the trial court’s findings of fact included that, Colbert’s trailer protruded
into the right lane of travel by approximately two feet; the warning triangles were not
placed at the proper distance behind Colbert’s trailer, but the dashcam revealed that
nothing obstructed Scott’s view of the triangles; Scott drove onto the white fog line
at the time of the impact; Colbert’s warning lights were activated and flashing and
visible to Scott, with the video showing that “the flashing lights were visible
approximately 14 seconds before impact;” and that Scott made no evasive movements
to avoid the collision, and “[h]e did not reduce his speed; at the time of the collision
he was traveling 70 MPH.”
The trial court concluded that even assuming that all of Scott’s allegations of
negligence against the Defendants were true, the Defendants’ affirmative defense of
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“avoidable consequences is dispositive and requires judgment in [the Defendants’]
favor.” The trial court found conclusive the Defendants evidence that
despite Colbert’s flashing lights and triangle warning devices, in the
seconds before the collision, Alex Scott did nothing to avoid the tractortrailer parked on the side of the interstate. In other words, Alex Scott
failed to exercise ordinary care for his own safety after the trailer’s
warning devices – flashing lights and reflective triangles– became visible.
The trial court further found the cases cited by Scott in response unpersuasive
and distinguishable in that, in this case
there is a video that shows Alex Scott’s view in the moments prior to the
collision. The evidence presented establishes as a matter of law that Alex
Scott failed to exercise ordinary care to avoid the consequences of the
Defendants’ alleged negligence. Some of Scott’s arguments are blatantly
contradicted by a videotape of the incident (quotation marks excluded).
Moreover, the trial court held, “the video establishes conclusively that the
[Defendants’] parked trailer was visible more than 10 seconds before the collision and
that Alex Scott did nothing to avoid this stationary vehicle.” With that being so, the
trial court concluded that,
[i]n the exercise of ordinary care, Alex Scott should have learned that
Colbert’s trailer encroached into his lane of traffic. The evidence, in a
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light most favorable to Scott, is that the warning triangles were on the
white fog line. Nothing obstructed Alex Scott’s view of the flashing
lights and triangles. ... Alex Scott should not have ignored the warning
cue of Colbert’s flashing lights.
The trial court also found that there was no evidence of the Defendants’ willful or
wanton conduct. Scott appeals from that order.
On appeal, Scott contends that the trial court erred in finding that the
affirmative defense of avoidable consequences precluded Scott’s claims of negligence
and required judgment in favor of the Defendants. Scott asserts that fact questions
exist about when Alex Scott could or should have apprehended the actual hazard at
issue. Further, he maintains, the avoidable consequences rule does not apply until the
person “sees the danger or has reason to apprehend it.” See Newman v. Collins, 186
Ga. App. 595, 596 (1) (a) (367 SE2d 866) (1988) (clarifying that the “doctrine of
‘avoidable consequences’ does not rest upon the idea that defendant is relieved of any
duty toward plaintiff, but denies recovery for any damages which could have been
avoided by reasonable conduct on plaintiff’s part” and “involves the failure to take
action to overcome defendant’s negligence after it is actually discovered by plaintiff
or might have been discovered by plaintiff’s exercise of ordinary care”). Moreover,
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Scott asserts, even after discovery or a reasonable time within which discovery of the
negligence should have been made, the person “must have had an opportunity to
avoid the negligence of the defendant.”
“It is well settled that “[n]egligence is not actionable unless it is the proximate
cause of the injury.”Ga. Dept. of Transp. v. Owens, 330 Ga. App. 123, 130 (2) (766
SE2d 569) (2014) (citation and punctuation omitted). “Proximate cause is that which,
in the natural and continuous sequence, unbroken by other causes, produces an event,
and without which the event would not have occurred.”Id. (citation and punctuation
omitted). Under the doctrine of avoidable consequences, “[i]f the plaintiff by ordinary
care could have avoided the consequences to himself caused by the defendant’s
negligence, he is not entitled to recover.” OCGA § 51-11-7. Thus, the plaintiff’s
negligence in failing to avoid the consequences of the defendant’s negligence is
deemed the sole proximate cause of the injuries sustained and, therefore, is a complete
bar to recovery, unless the defendant wilfully and wantonly inflicted the injuries.
Chandler v. City of Lafayette, 370 Ga. App. 46, 51 (b) (894 SE2d 65) (2023). See
Chrysler Corp. v. Batten, 264 Ga. 723, 726 (3) (450 SE2d 208) (1994) (“Wilful conduct
is based on an actual intention to do harm or inflict injury; wanton conduct is that
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which is so reckless or so charged with indifference to the consequences as to be the
equivalent in spirit to actual intent.”) (citations and punctuation omitted).
As with other affirmative defenses, the defendants in this case may prevail
by presenting evidence which establishes a prima facie affirmative
defense. In so doing, the defendant, as the moving party seeking
summary judgment, may not rely on inferences from the evidence
presented, because: (1) the defendant would have such burden of proof
at trial; and (2) the allocation of favorable inferences between the parties
is a jury question. Once the defendant satisfies its burden of proof by
presenting evidence to support each element of the affirmative defense,
the same burden of proof it would have at trial, the burden of production
of evidence shifts to the plaintiff, who will survive summary judgment in
the same fashion that she would survive a motion for directed verdict at
trial, i.e., by presenting any evidence which creates a jury issue on an
element of the affirmative defense. However, if the plaintiff is unable to
meet this burden of production, the defendant is entitled to summary
judgment as a matter of law.
Garrett v. Nations Bank, 228 Ga. App. 114, 116 (491 SE2d 158) (1997) (citations
omitted).
Thus, here, the Defendants have the burden of coming forth with evidence,
either at trial or summary judgment, that Alex Scott by ordinary care could have
avoided the consequences to himself caused by the defendant’s negligence. Although
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the issue of whether the plaintiff exercised “due diligence for his own safety is
ordinarily reserved for the jury, it may be summarily adjudicated where [the
plaintiff’s] knowledge of the risk is clear and palpable.” Lowery’s Tavern v.
Dudukovich, 234 Ga. App. 687, 690 (3) (507 SE2d 851) (1998). However, “all
reasonable inferences from the evidence presented must be given in favor of the
plaintiff, as the nonmoving party; a trial court is precluded from drawing negative
inferences against the plaintiff from evidence presented by a defendant on motion for
summary judgment.” Garrett, 228 Ga. App. at 115.
In challenging the trial court’s findings with regard to the dashcam video, Scott
notes the trial court’s reliance on Scott v. Harris, 550 U.S. 372, 380 (III) (A), 127 SCt
1769, 167 LEd2d 686 (2007), which essentially concluded that video evidence that
clearly and unambiguously depicts an event may be given conclusive weight and
eliminate a factual dispute. In Harris, the Court reasoned that at the summary
judgment stage,
the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material
fact. When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could
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believe it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.
Harris, 550 U. S. at 380 (III) (A) (citation and punctuation omitted). The Court
considered whether the appeals court had correctly found that there was a factual
issue whether respondent was driving in such fashion as to endanger human life. Id.
at 380-381 (III) (A). The Court found that “[r]espondent’s version of events is so
utterly discredited by the record that no reasonable jury could have believed him. The
Court of Appeals should not have relied on such visible fiction; it should have viewed
the facts in the light depicted by the videotape.” Id. See Smith v. Wal-Mart Stores
East, LP, 330 Ga. App. 340, 348(2)(b)(ii) (765 SE2d 518) (2014)(noting that a court
should not adopt a version of the facts for purposes of ruling on a motion for summary
judgment which is blatantly contradicted by a videotape of the incident), citing Harris,
550 U. S. at 380 (III) (A).
Despite such holding, Scott contends, the trial court is not given complete
license to make conclusive factual determinations about what the video depicts,
merely by the existence of the video, regardless of the quality. Particularly, he asserts,
when, as here, the determination is based “on the grainy and disjointed dashcam
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video.” Doing so, Scott argues, usurps the role of the jury. Unlike Harris, he asserts,
rather than a clear unequivocal depiction, the video here is “open to varying
interpretations.” When videos do not paint the entire picture and contain ambiguities
that are subject to interpretation, Scott contends, then courts should construe the
ambiguities in the video footage in favor of the plaintiff just as they construe all
ambiguities in the written pleadings in the plaintiff’s favor.
“The sole function of the court on a motion for summary judgment is to
determine whether there exists a genuine issue of material fact. And even slight
evidence giving rise to a triable issue of material fact will suffice to defeat summary
judgment.”Albright v. Terminal Inv. Corp., 373 Ga. App. 798, 805 (1) (909 SE2d 672)
(2024) (citation and punctuation omitted). Moreover, in so determining, we view the
evidence, draw all reasonable factual inferences, and resolve all reasonable doubts in
favor of Scott. See Smith v. Ellis, 291 Ga. 566, 567 (1) (731 SE2d 731) (2012). That
said, in this case as there is video of the circumstances at issue, as in any material fact,
ambiguities in the video are construed in Scott’s favor. See Baker v. City of Madison,
67 F. 4th 1268, 1277 (III) (C) (11th Cir. 2023). And, “any discrepancies between the
witnesses’ testimony and the ... video evidence would be for a jury to resolve.”
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Albright, 373 Ga. App. at 804 (1) (finding fact issue where trial court found that “[t]he
video fails to conclusively establish”... “fault … as a matter of law”) (punctuation
omitted).
In Giddens v. Metropower, Inc., 366 Ga. App. 15 (880 SE2d 595) (2022), this
Court reversed the grant of summary judgment in a personal injury case when we
found that contrary to the characterization of the video by defendant and the trial
court, although “the video obviously shows [the plaintiff] in the air coming off the
flatbed, it does not clearly show whether that was a result of him voluntarily jumping
off or being pushed or tripped up by the pipe.” Id. at 19 (b). Noting that the angle and
lighting of the video were not ideal, and that “[e]ven after enlarging the video and
watching it multiple times, it remains unclear to this Court what caused [the
plaintiff’s] departure from the flatbed,” we concluded that “[m]ore than one
inference could be drawn, and thus the question must go to a jury. [The defendant]
bears the burden of proving the affirmative defense ..., and it cannot do so as a matter
of law with the video of the incident.” Id.
Likewise, in this case, this Court has repeatedly viewed the video retrieved from
the dashcam in Alex Scott’s truck and we are unable to discern exactly what Alex
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Scott should or should not have perceived when viewing the flashing lights, nor can
we, unlike the trial court, find that the images depicted in the video were so blatantly
obvious that to ignore them was, as a matter of law, negligent. If indeed, Alex Scott
failed to exercise ordinary care for his own safety and to use ordinary care to avoid the
consequences of the Defendant’s negligence, it is not clearly evident from the
dashcam video. “Except in plain, palpable and undisputed cases where reasonable
minds cannot differ as to the conclusions to be reached,” the questions of “lack of
ordinary care for one’s own safety,” and “lack of ordinary care in avoiding the
consequences of another’s negligence … are for the jury.” McCray v. FedEx Ground
Package System, 291 Ga. App. 317, 322 (1) (661 SE2d 691) (2008) (citation and
punctuation omitted).
“Summary judgments enjoy no presumption of correctness on appeal, and an
appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c)
have been met.” Cowart, 287 Ga. at 624 (emphasis supplied). Given our review of the
dashcam video, we cannot say as a matter of law that those statutory requirements
have been met for purposes of the grant of summary judgment under the
circumstances here.
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2. We need not address Scott’s assertion that his negligence would not bar
recovery because the Defendants’ conduct was willful and wanton.
Judgment reversed. Markle and Hodges, JJ., concur.
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