?It is well settled that the?violation?of a state statute constitutes?negligence?as a matter of law?.?
This sentence has formed the basis for my current line of research, and legal briefs based on that idea to help two clients, and it comes from?Green v. Gaydon, 174 Ga.App. 796, 798(3),331 S.E.2d 106 (1985).
The basic idea that a particular legal norm, especially in traffic law, can impose possible negligence per se?by its violation, is not something that I have been comfortable with in the past, because my practice is primarily oriented toward domestic relationships, such as child custody and adoption, and (for roughly ten years) criminal practice, where the State itself is the victim and violation of the legal guidelines and rules results in incarceration, fines, and logical punishment. ?Money damages are not a standard that I am used to dealing with, though many or most of the legal norms I originally studied in law school were geared toward those complex civil rules and practices. ?The case, which actually makes for a more complex standard than simply whether a legal rule was violated for purposes of imposing liability, is as follows, and contains an excellent discussion of the distinction at stake with the standard of liability it stands for in Georgia:
? ? ? ?Emily Sherwinter, Atlanta, for appellant.
????????James A. Dunlap, James E. Brim III, Gainesville, for appellees.
? ? ? ? BANKE, Chief Judge.
????????The 14-year-old son of appellant Linda Jane Green died as a result of injuries he sustained when his motorcycle collided with a tractor-trailer operated by appellee Donald Gaydon, who was in the employ of appellee National Freight, Inc., at the time. This appeal is from a judgment entered on a jury verdict in favor of the appellees in a wrongful death action against them.
????????The collision occurred as Gaydon was driving away from his residence, which was located on a dirt road, and was approaching an intersection with a paved road at a slow speed. There was evidence that appellant?s son had pulled onto the paved road in front of another vehicle and was looking behind him when he turned onto the dirt road and collided with the tractor. Held:
????????1. Appellant contends that the trial court erred in refusing to admit evidence that Gaydon had been told by a representative of either the sheriff?s department or the post office not to park the tractor on the road outside his residence unless he unhitched the trailer and left it at a barn on the paved road, ostensibly because the dirt road was too narrow to allow other vehicles to pass. There was evidence that the road was wider where the collision occurred than at appellant?s residence, which was a substantial distance from the site of the collision.
????????Generally, it is not permissible to show conditions at places other than the one in question for the purpose of establishing that the condition at the place in question is dangerous.?See?MARTA v. Tuck, 163 Ga.App. 132(5),?292 S.E.2d 878 (1982);?Underwood v. Atlanta & West P.R. Co., 105 Ga.App. 340(5),?124 S.E.2d 758 (1962). Because the condition of the road at the point of the collision was different from its condition at appellant?s residence, the evidence which appellant sought to elicit was irrelevant to the issue of whether Gaydon?s conduct at the time and place of?the collision constituted?negligence. Accordingly, the trial court did not err in refusing to admit the evidence.
????????2. Appellant contends that the trial court erred in refusing to give two requests to charge; however, these requests to charge are not contained in the record. The party asserting error has the duty to show it by the record, not by assertions in briefs.?See?York v. Miller, 168 Ga.App. 849,?310 S.E.2d 577 (1983);?DeJong v. Stern, 162 Ga.App. 529(2),?292 S.E.2d 115 (1982). Appellant has made no contention that the record is incomplete, nor has she attempted to supplement the record, pursuant to OCGA ? 5-6-41(f). Consequently, this enumeration of error presents nothing for review. Moreover, even if the language of the two requests to charge was in fact as?set forth in the appellant?s brief, the trial court would not have erred in refusing to grant them. The first specified that a motorist approaching children on the street must consider their tenderness of age and exercise greater caution than that necessary on the discovery of adults in the [174 Ga.App. 798] same situation.?See generally?Kennedy v. Banks, 117 Ga.App. 197, 199,?160 S.E.2d 208 (1968). However, the deceased in the present case was 14 years old and was thus responsible for both his crimes and his torts.?See OCGA ?? 16-3-1, 51-11-6;?Hatch v. O?Neill, 231 Ga. 446(1),?202 S.E.2d 44 (1973);Brady v. Lewless, 124 Ga.App. 858,?186 S.E.2d 310 (1971). It follows that the principle of law at issue was not adjusted to the evidence. Accord?Townsend v. Moore, 165 Ga.App. 606(2),?302 S.E.2d 398 (1983);?Central R. Co. v. Phillips, 91 Ga. 526(2),?17 S.E. 952 (1893). The other request pertained to the last clear chance doctrine, a principle upon which the trial court did instruct the jury, although not in the precise language allegedly requested. The trial court also accurately charged the jury with request to contributory and comparative?negligence?and other relevant principles. Where the trial court accurately and fully charges the relevant law, it is not error to fail to charge in the exact language requested. Accord?Ponder v. Ponder, 251 Ga. 323(3),?304 S.E.2d 61 (1983). Jury instructions must be read and considered as a whole in determining whether the charge contained error.?Taylor v. State, 252 Ga. 125(2),?312 S.E.2d 311 (1984). Considering the charge of the trial court in its entirety, we hold that the jury was accurately informed of the relevant legal principles.
????????3. Appellant contends that the trial court erred in charging the jury that operation of a motorcycle not equipped with a horn and headlight or operation of a motorcycle without wearing protective headgear constitutes a?violation?of the law, and that if the jury found the deceased had violated one of these laws and that such?violation?was the proximate cause of his death, they should return a verdict for the appellees. It is well?settled that the?violation?of a state statute constitutes negligence?as a matter of law, imposing liability on the violator to the extent that any such?violation?contributed proximately to the claimed injuries.?Accord Intl. Brotherhood of Electrical Workers v. Briscoe, 143 Ga.App. 417(7b),?239 S.E.2d 38 (1977);?Peek v. Miller, 119 Ga.App. 138(4),?166 S.E.2d 377 (1969). It follows that this enumeration of error is without merit.
????????4. Appellant contends that the trial court erred in its charge to the jury by using the term, ?head-on,? with reference to the collision. However, no such objection was raised at the trial, and appellant accordingly wavied the?right?to raise the issue on appeal. Accord?Segars v. Printing?Service Co., 170 Ga.App. 345(1),?317 S.E.2d 322 (1984).?See also OCGA ? 5-5-24(a).
????????Judgment affirmed.
????????BENHAM, J., concurs.
????????McMURRAY, P.J., concurs in the judgment only.
?It is important to note the fine distinction between a simple violation of a legal standard (in that case, not having a horn on the vehicle) and the role that the violation plays in causing injury and damages. ?Therefore, there has to be more than just violation of the law when the injury happens; the violation of the law needs to be the cause?of the injury and damages.
college football college football ncaa football brian van gorder blazing saddles lsu alabama national championship
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.