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Reed v. Carolina Cas. Ins. Co.

Issues of material fact remained as to the percentage of fault attributable to the defendant and to the decedent in the decedent's parents' wrongful death action arising from a traffic accident.

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Georgia law provides that a tort plaintiff “shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.” OCGA § 51-12-33 g. In this wrongful death action, the trial court granted summary judgment in favor of the defendants on the ground that the undisputed facts show the plaintiff’s decedent was at least 50 percent responsible for his own death. The plaintiff contends the trial court erred by not allowing the jury to consider this issue. We agree and therefore reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 1 577 SE2d 564 2003. And “questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and undisputable cases.” Citation omitted. Bussey v. Dawson, 224 Ga. 191, 193-194 160 SE2d 834 1968. See also Sutton v. Justiss, 290 Ga. App. 565, 566 659 SE2d 903 2008 “If reasonable minds can differ on the cause of the injury, the case is not plain, palpable, and indisputable and it should go to the jury” citation omitted.

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