Fowler v. Smith, 516 S.E.2d 845 (Ga. Ct. App. 1999). · Go Syfert
Fowler v. Smith, 516 S.E.2d 845 (Ga. Ct. App. 1999). Cases Citing This Book View Copy Cite
48 citation events (48 in the last 25 years) across 5 distinct courts.
Strongest positive: John McKnight v. Anthony Love (gactapp, 2023-10-19)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 16 distinct citers.
discussed Cited as authority (rule) John McKnight v. Anthony Love (2×)
Ga. Ct. App. · 2023 · confidence medium
Hunt Transport v. Bentley, 207 Ga. App. 250 ( 427 SE2d 499 ) (1992) (truck driver drove 20 miles despite serious mechanical problem which caused collision); Viau v. Fred Dean, Inc., 203 Ga. App. 801 ( 418 SE2d 604 ) (1992) (drunken driving); Day v. Burnett, 199 Ga. App. 494 ( 405 SE2d 316 ) (1991) (driving under the influence and in violation of a number of traffic safety laws)). 12 simply violated a rule of the road,” which we also inferred by citing to the facts from several prior cases.22 But within and since Carter, we have never held that showing a pattern or policy of dangerous driving…
cited Cited as authority (rule) Atlantic Star Foods, LLC v. Mark Burwell
Ga. Ct. App. · 2023 · confidence medium
Fowler v. Smith, 237 Ga. App. 841, 843 (2) ( 516 SE2d 845 ) (1999).
discussed Cited as authority (rule) MERCY HOUSING GEORGIA, III L.P. v. MICHAEL JOHN KAAPA
Ga. Ct. App. · 2023 · confidence medium
See Hoffman, 260 Ga. at 588-589 (1) (doctor’s repeated failure to correct diagnostic error showed “such a lack of care as to rise to a conscious indifference to consequences”); Fowler v. Smith, 237 Ga. App. 841, 843 (2) ( 516 SE2d 845 ) (1999) (truck driver’s violation of federal safety regulations by stopping in an interstate’s center lane for 35 minutes without turning on his lights or putting out warning devices authorized the denial of summary judgment on the issue of punitive damages).
cited Cited as authority (rule) FIELDER v. SUPERIOR MASON PRODUCTS LLC
M.D. Ga. · 2022 · confidence medium
In this case, there is certainly evidence from which a jury could decide that Turner acted with “conscious indifference to the consequences.” Fowler v. Smith, 516 S.E.2d 845, 848 (Ga. Ct. App. 1999).
discussed Cited as authority (rule) Tramaine Miller v. City Views at Rosa Burney Park Gp, LLC
Ga. Ct. App. · 2013 · confidence medium
Wilful and intentional misconduct is not essential.22 Further, “employers or principals may be vicariously liable for punitive damages arising from the acts or omissions of their employees or agents if such tortious conduct is committed in the course of the employer’s or principal’s business, within the scope of the servant’s or agent’s employment, and is sufficient to authorize a recovery of punitive damages under OCGA § 51-12-5.1.”23 21 Todd v. Byrd, 283 Ga. App. 37, 47 (9) (a) ( 640 SE2d 652 ) (2006), overruled on other grounds by Ferrell v. Mikula, 295 Ga. App. 326, 333 (2) ( …
cited Cited as authority (rule) International Auto Processing, Inc. v. Glynn County
Ga. Ct. App. · 2007 · confidence medium
Fowler v. Smith, 237 Ga. App. 841, 843 (1) ( 516 SE2d 845 ) (1999); Zampatti v. Tradebank Intl.
examined Cited as authority (rule) Brooks v. Gray (7×) also: Cited "see"
Ga. Ct. App. · 2003 · confidence medium
Driving while intoxicated (Moore v. Thompson, 255 Ga. 236, 237-238 ( 336 SE2d 749 ) (1985)), choosing to stop an unlit tractor-trailer for 35 minutes in the center lane of an interstate highway without warning devices at night (Fowler, supra, 237 Ga. App. at 843-844 (2)), or driving a tractor-trailer with serious mechanical problems that caused it for 20 miles prior to the collision to weave erratically from lane to lane (J.
cited Cited as authority (rule) Arbor Station Homeowners Services, Inc. v. Dorman
Ga. Ct. App. · 2002 · confidence medium
Fowler v. Smith, 237 Ga. App. 841, 843 (1) ( 516 SE2d 845 ) (1999).
discussed Cited "see" Correll v. Vika Logistics, LLC
S.D. Ga. · 2021 · signal: see · confidence high
See Fowler v. Smith, 516 S.E.2d 845, 848 (Ga. Ct. App. 1999) (summary judgment denied as to punitive damages because driver stopped in the interstate without placing warning devices or turning lights on after dark); Sommers v. Hall, No. CV 408-257, 2010 WL 1963381 , at *4 (S.D.
discussed Cited "see" Correll v. Vika Logistics LLC
S.D. Ga. · 2021 · signal: see · confidence high
See Fowler v. Smith, 516 S.E.2d 845, 848 (Ga. Ct. App. 1999) (summary judgment denied as to punitive damages because driver stopped in the interstate without placing warning devices or turning lights on after dark); Sommers v. Hall, No. CV 408-257, 2010 WL 1963381 , at *4 (S.D.
cited Cited "see" Bac Home Loans Servicing, L. P. F/K/A Countrywide Home Loans Servicing, L. P. v. Brian Wedereit
Ga. Ct. App. · 2014 · signal: see · confidence high
See Fowler v. Smith, 237 Ga. App 841, 848 (2) ( 516 SE2d 845 ) (1999).
cited Cited "see" BAC Home Loans Servicing, L.P. v. Wedereit
Ga. Ct. App. · 2014 · signal: see · confidence high
See Fowler v. Smith, 237 Ga. App 841, 848 (2) ( 516 SE2d 845 ) (1999).
discussed Cited "see, e.g." Mastec North America, Inc. v. Wilson (2×)
Ga. Ct. App. · 2014 · signal: see also · confidence medium
See also Fowler v. Smith, 237 Ga. App. 841, 843 (2) ( 516 SE2d 845 ) (1999) (accord); Carter v. Spells, 229 Ga. App. 441, 442 ( 494 SE2d 279 ) (1997) (accord).
discussed Cited "see, e.g." Mastec North America, Inc. v. Gilda Lee Wilson (2×)
Ga. Ct. App. · 2014 · signal: see also · confidence medium
See also Fowler v. Smith, 237 Ga. App. 841, 843 (2) ( 516 SE2d 845 ) (1999) (accord); Carter v. Spells, 229 Ga. App. 441, 442 ( 494 SE2d 279 ) (1997) (accord).
discussed Cited "see, e.g." Benton v. Anderson (2×)
unknown court · 2008 · signal: compare · confidence medium
Compare Fowler v. Smith, 237 Ga. App. 841, 843-844 (2) ( 516 SE2d 845 ) (1999) (evidence that tractor-trailer driver stopped in center lane of interstate failed to put out triangular warning devices or turn on lights after dark created genuine issue of material fact on issue of punitive damages, as this conduct contributed to the collision). 7 246 Ga. App. 209 ( 539 SE2d 565 ) (2000). 8 Id. at 210 (1); see also Battle v. Kilcrease, 54 Ga. App. 808, 809-810 (4) ( 189 SE 573 ) (1936) (failure to stop and render aid after traffic collision may support the award of punitive damages to person injur…
discussed Cited "see, e.g." Gerben v. BENEFICIAL GEORGIA, INC. (2×)
Ga. Ct. App. · 2007 · signal: see also · confidence medium
Blackburn, P. J., and Adams, J., concur. 1 OCGA § 9-11-56 (c); Bozeman v. CACV of Colorado, 282 Ga. App. 256 ( 638 SE2d 387 ) (2006). 2 Bozeman, supra; see also, e.g., Cox v. U. S. Markets, 278 Ga. App. 287 ( 628 SE2d 701 ) (2006). 3 Fowler v. Smith, 237 Ga. App. 841, 842-843 (1) ( 516 SE2d 845 ) (1999). 4 Bozeman, supra at 257 (failure to move to strike challenged affidavit and failure to submit affidavits of his own led to summary judgment against defendant). 5 Ackerman & Co. v. Lostocco, 216 Ga. App. 242, 244 (1) ( 454 SE2d 792 ) (1995). 6 See Intl.
FOWLER Et Al.
v.
SMITH Et Al.
A99A0708.
Court of Appeals of Georgia.
Apr 29, 1999.
516 S.E.2d 845
Alembik, Fine & Callner, G. Michael Banick, Todd E. Schwartz, for appellants., James C. West III, for appellees.
Johnson, Ruffin, Banke.
Cited by 24 opinions  |  Published
Johnson, Chief Judge.

Dexter Fowler was a truck driver for Atlanta Motor Lines, Inc. While driving on Interstate 285, Fowler stopped his tractor-trailer because the lane in which he was traveling was blocked by a car that had lost a wheel. Some time later, Frederick Smith drove his car into the back of Fowler’s stopped truck. Smith died from injuries suffered in the collision.

Smith’s parents sued Fowler, Atlanta Motor Lines and its insurer, Liberty Mutual Insurance Company, asserting numerous claims of negligence. The parties filed opposing motions for summary judgment. Both motions were granted in part and denied in part by the trial court. Fowler, Atlanta Motor Lines and Liberty appeal.

1. Fowler, Atlanta Motor Lines and Liberty assert the trial court erred in granting summary judgment to the Smiths on the issue of whether Atlanta Motor Lines failed to retain a driver qualification file on Fowler pursuant to 49 CFR § 391.51 (a) & (c), which require motor carriers to maintain such a qualification file for each of their drivers and to retain the file for three years after the driver stops working for the carrier. Based on the evidence as it existed at the time of the hearing on the summary judgment motions, we are compelled to uphold the trial court’s ruling.

A former accountant and a former officer of Atlanta Motor Lines executed affidavits asserting that: (i) they were aware of the Federal Motor Carrier Safety Regulations [1] requiring this type of file be kept for, at most, six months, (ii) Atlanta Motor Lines had performed all the record-keeping required by the Federal Motor Carrier Safety[*842] Regulations, and (iii) any documents not tendered in response to the Smiths’ discovery requests had been destroyed in the ordinary course of business by Atlanta Motor Lines.

Previously, the same accountant had testified by deposition that he knew nothing about the federal regulations pertaining to the interstate operation of tractor-trailers and that he was not aware that certain documents must be maintained in each driver’s file. The accountant subsequently executed a second affidavit in which he claimed that, although he was not aware of the applicable federal regulations when he was deposed, he thereafter studied the regulations and was familiar with them when he made his first affidavit.

The trial court found that the accountant had not given a reasonable explanation for the inconsistencies between his deposition and his first affidavit. The court then struck portions of the accountant’s first affidavit, including the assertions that all the documents not provided during discovery had been destroyed and that Atlanta Motor Lines had complied with applicable federal record-keeping requirements. The trial court also struck the officer’s affidavit in its entirety because it was not timely filed. Fowler, Atlanta Motor Lines and Liberty have not enumerated the striking of these affidavits as error. Thus, this issue is not before us on appeal. See DeKalb County v. Lenowitz, 218 Ga. App. 884, 887 (1) (463 SE2d 539) (1995); Roberts v. Cotton States Mut. Ins. Co., 186 Ga. App. 371, 373 (2) (367 SE2d 272) (1988).

Accordingly, on the day the trial court heard both motions for summary judgment, the evidence before the court was that Atlanta Motor Lines had not produced Fowler’s driver qualification file in response to the Smiths’ timely discovery requests. After the hearing but before the trial court issued its summary judgment order, Atlanta Motor Lines apparently found Fowler’s driver qualification file, served the Smiths with a copy of it and sent a letter to the trial judge informing him that the file had been located. Nevertheless, the court subsequently granted summary judgment to the Smiths on their claim that Atlanta Motor Lines had violated 49 CFR § 391.51 by failing to produce the driver qualification file during discovery.

Contrary to the complaints of Fowler, Atlanta Motor Lines and Liberty, the trial court was not required to consider Atlanta Motor Lines’ letter or its supplemental response to the Smiths’ requests for production of documents because these documents were not tendered before the hearing on the summary judgment motions. Parties have a duty to present their case in full at a hearing on a motion for summary judgment. W. E. Heller & Co. v. Aetna Business Credit, 158 Ga. App. 249, 252 (4) (280 SE2d 144) (1981). By failing to respond timely to the motion for summary judgment, Atlanta Motor Lines waived its right to present evidence in opposition to that motion. McGivern v. [*843] First &c. Properties, 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988); see Rapps v. Cooke, 234 Ga. App. 131, 132 (1) (505 SE2d 566) (1998); Uniform Superior Court Rule 6.2. It is in the trial court’s discretion whether to consider such untimely responsive materials. See Labat v. Bank of Coweta, 218 Ga. App. 187, 188 (1) (460 SE2d 831) (1995).

The trial court did not abuse its discretion in declining to consider the untimely evidence submitted by Atlanta Motor Lines. The untimely production of Fowler’s driver qualification file provides us with no basis for reversing the trial court’s ruling, which was correct based on the evidence presented at the hearing.

2. Fowler, Atlanta Motor Lines and Liberty argue the trial court erred in failing to grant their motion for summary judgment as to the Smiths’ claim for punitive damages. The argument is without merit.

In Georgia, employers or principals may be vicariously liable for punitive damages arising from the acts or omissions of their employees or agents if such tortious conduct is committed in the course of the employer’s or principal’s business, within the scope of the servant’s or agent’s employment, and is sufficient to authorize a recovery of punitive damages under OCGA § 51-12-5.1. [2] See generally Sightler v. Transus, Inc., 208 Ga. App. 173,174 (430 SE2d 81) (1993); Gasway v. Atlanta & W. Point R. Co., 58 Ga. 216 (2) (1877). Acts or omissions constituting mere negligence or gross negligence will not support an award of punitive damages. Roberts v. Forte Hotels, 227 Ga. App. 471, 472 (1) (489 SE2d 540) (1997). Thus, “[i]n automobile collision cases decided under OCGA § 51-12-5.1, punitive damages are not recoverable where the driver at fault simply violated a rule of the road.” Carter v. Spells, 229 Ga. App. 441, 442 (494 SE2d 279) (1997). Punitive damages may be awarded, however, where it is proven by clear and convincing evidence that the defendant’s act or omissions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to the consequences. Id.; OCGA § 51-12-5.1 (b).

In the current case there exists some evidence that Fowler may have violated federal safety law by being stopped in the interstate’s center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway. See generally 49 CFR § 392.22 (b). There is also evidence that Fowler did not turn on[*844] his tractor-trailer lights after it became dark and his main truck lights were not on at the time of the collision. Moreover, there exists evidence that prior to the collision the flow of traffic did not prevent another truck that had stopped in front of Fowler from driving away without incident, whereas Fowler stayed with the driver of the disabled car, and did not move his own truck, until after the collision.

Decided April 29,1999. Alembik, Fine & Callner, G. Michael Banick, Todd E. Schwartz, for appellants. James C. West III, for appellees.

The cardinal rule of summary judgment procedure is that the court can neither resolve facts nor reconcile the issues, but can only determine if there is an issue. The party opposing the motion is to be given the benefit of all reasonable doubt and all favorable inferences that may be drawn from the evidence. See Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). Construing the evidence in the light most favorable to the Smiths, we find that genuine issues of material fact exist as to whether Fowler’s conduct demonstrated that entire want of care which would raise the presumption of conscious indifference to the consequences. Thus, the trial court did not err in denying the motion for summary judgment on the issue of punitive damages.

Judgment affirmed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.
1

See generally 49 CFR § 350.1 et seq.

2

The appellants do not enumerate as error or argue in their brief that Liberty could not be held liable for punitive damages because Atlanta Motor Lines’ insurance contract does not provide coverage for punitive damages. Thus, this issue is not before us on appeal. We note that in Georgia an insurance contract providing coverage for punitive damages does not violate public policy. See Federal Ins. Co. v. Nat. Distributing Co., 203 Ga. App. 763, 768 (3) (417 SE2d 671) (1992).