X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Reese, Judge. This personal injury action arose from a collision between vehicles driven by Valerie Gilbert and Michael Freeland. Gilbert filed suit against Freeland following the collision, and Freeland subsequently filed a motion for summary judgment. The trial court granted Freeland’s motion, and Gilbert appeals the court’s ruling. For the reasons set forth infra, we reverse. Construing the evidence and the inferences drawn from it in the light most favorable to Gilbert as the non-moving party,[1] the record shows the following. On October 13, 2016, Gilbert was driving north on Interstate 75 (“I-75″) in heavy traffic. When Gilbert slowed for the automobiles in front of her, Freeland hit her from behind, pushing her into another vehicle. Freeland stated in his affidavit that as he was driving on I-75 he “[s]uddenly, and without warning, . . . became sick.” Freeland indicated that he “looked to the right for an exit” and that all he remembered was “reaching for a cup to vomit” and then someone flagging him down and informing him that he had been in an accident. According to Freeland, when his vehicle came to a stop he “realized there was vomit on [his] clothes and inside the vehicle[ ]” and he “ believ[ed] that [he] passed out.” Freeland also stated that he had not consumed any “alcoholic beverages, drugs, or medications within twenty-four hours prior to the accident.” Although Gilbert sought records from Freeland’s physician, the facility responded that it did not have these records. However, Freeland stated in his affidavit that he “was checked out by [his] doctor” upon returning home and that his doctor informed him that he experienced “a sudden decrease in [his] heart rate and blood pressure which led to a reduced blood flow in the brain, which was entirely unforeseeable.” Gilbert filed suit against Freeland seeking damages resulting from the crash and attorney fees. Freeland filed an answer and subsequently filed a motion for summary judgment in which he asserted an act-of-God defense based on his alleged loss of consciousness. The trial court found that the statements attributed to Freeland’s physician included in Freeland’s affidavit were not “competent evidence.” However, the court ruled in favor of Freeland and granted him summary judgment. Gilbert now appeals from the trial court’s order. Summary judgment is proper 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. 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.[2] “The admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally. We review a trial court’s decision regarding the admission or exclusion of evidence for an abuse of discretion.”[3] With these guiding principles in mind, we now turn to Gilbert’s claims of error. 1. Gilbert argues that the trial court erred in failing to strike statements offered by Freeland that constituted inadmissible hearsay and speculation. Specifically, Gilbert asserts that statements by Freeland that he believed he passed out were overly speculative and statements attributed to Freeland’s physician were hearsay. OCGA § 9-11-56 (e) requires that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” However, a statement that the affidavit is made upon personal knowledge “is generally sufficient to meet the requirements of OCGA § 9-11-56 (e).”[4] Moreover, OCGA § 247701 (a) provides: If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 247702. We note that although Gilbert asserts that the trial court erred in relying upon statements from Freeland’s physician, the trial court actually ruled that these statements were “not competent evidence.” Thus, any assertions that the trial court erred by relying upon statements by Freeland regarding what his physician told him are without merit. Freeland stated in his affidavit that while driving on I-75 [he] became sick. The next thing [he] remember[ed was] someone flagging [him] down saying [he] had just been in an accident. [He did] not remember any of the details of the accident and believe[d] that [he] passed out. . . . To the best of [his] knowledge, [he] passed out and did not have any control of the vehicle at the time of this accident. . . . To the best of [his] knowledge, [he had] never had an incident prior to this accident where [he] became sick and/or passed out and had no memory of that time. Freeland attested that the statements in his affidavit were based on his personal knowledge and involved his own recollection of what occurred before and after the crash.[5] In short, he was driving, felt sick, reached for a cup, and the next thing he remembered was being flagged down and informed that he had been in a wreck. Such statements concerning his personal experience of the crash were rationally based on his perceptions, helpful to a clear understanding of his testimony, and were not scientific.[6] Thus, the trial court did not abuse its discretion in refusing to strike this part of Freeland’s affidavit testimony. 2. Gilbert argues that the trial court erred in granting Freeland’s motion as the evidence did not support summary judgment. “Under appropriate circumstances, it may be established as a matter of law that an act of God was the sole proximate cause of an automobile accident, thus entitling a defendant to summary judgment on a claim that his alleged negligent operation of an automobile caused an accident.”[7] OCGA § 1-3-3 (3) defines an “Act of God” as “an accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness. This expression excludes all idea of human agency.” Thus, as we have held previously, a sudden and unforeseeable loss of consciousness by a driver is a complete defense to a claim that the driver negligently lost control of the automobile and proximately caused an ensuing accident. It also follows that, to establish an act of God defense based on illness producing a loss of consciousness, the driver must show that the loss of consciousness produced the accident without any contributing negligence on the part of the driver.[8] However, an act of God “is an affirmative defense upon which the defendant carries the burden of proof” on summary judgment, and a defendant moving for summary judgment on this defense “may not rely upon an absence of evidence in the record . . . but must carry the burden of affirmatively proving the defense.”[9] To support his assertion that his own statements regarding the crash were sufficient to establish a prima facie case for his act-of-God defense Freeland relies on Lewis v. Smith.[10] However, Lewis is distinguishable from the present matter. In Lewis, the plaintiff did not dispute that the defendant lost consciousness on appeal, and this Court noted that the fact the defendant’s car came directly toward the plaintiff after swerving across two lanes of highway tended to support the defendant’s claim that he was unconscious.[11] Moreover, the evidence demonstrated that the defendant’s physician stated that there was nothing in the defendant’s medical history showing that he might lose consciousness, and the defendant had seen a doctor two hours before the accident and nothing in his examination suggested that he might suffer a blackout.[12] Here, in contrast to Lewis, the circumstances of the collision did not lend additional support to the theory that Freeland passed out as he hit Gilbert’s car from behind. Additionally, Freeland offered no documents regarding his examination following the crash or any possible proclivity toward losing consciousness, even though Freeland stated in his affidavit that he had seen his physician following the collision.[13] Rather, the only evidence Freeland offered regarding his loss of consciousness and its possible cause was the self-serving statements that he thought he passed out and that it had not happened before.[14] Thus, the trial court erred in ruling that Freeland was entitled to summary judgment.[15] 3. Although Gilbert also asserts that Freeland failed to present sufficient evidence to support summary judgment on his sudden-emergency defense, we agree with Freeland that, despite using the phrase “sudden emergency,” his motion for summary judgment did not advance this argument, and the trial court did not base its ruling on this defense. Thus, we need not examine this claim of error. Judgment reversed. Doyle, P. J., and Senior Appellate Judge Herbert E. Phipps concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
May 01, 2025
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

We are seeking two attorneys with a minimum of two to three years of experience to join our prominent and thriving education law practice in...


Apply Now ›

Description: Fox Rothschild has an opening in the New York office for a Real Estate Litigation Associate with three to six years of commerci...


Apply Now ›

Downtown NY property and casualty defense law firm seeks a Litigation Associate with 3+ years' experience to become a part of our team! You ...


Apply Now ›