IN THE SUPREME COURT OF THE
STATE OF GEORGIA
DENISE CARTER AS SURVIVING
SPOUSE AND AS ADMINISTRATRIX OF THE ESTATE OF DUANE CARTER,
Petitioner,
vs.
RWT, INC., AMERICAN INTERNATIONAL SOUTH INSURANCE COMPANY AND RICKY LEE PAYNE,
Respondent.
CASE NO. S-03-C-0747

BRIEF OF THE AMICUS CURIAE COMMITTEE
GEORGIA TRIAL LAWYERS ASSOCIATION

The Georgia Trial Lawyers Association ["GTLA"] is an association comprising members of the State Bar of Georgia. GTLA is committed to the representation of those injured by the negligence of others and seeks to protect the constitutional right to a trial by jury in civil cases for such injured persons. In that spirit, GTLA is dedicated to vigilantly guarding those injured persons from unwarranted summary judicial proceedings. This case presents a need for this Court to establish precedent as to whether the violation of O.C.G.A. §§ 40-6-203 and 40-6-204 provided a basis for tort liability. The Court of Appeals has now extended its decision in Phillips v. Southwest Mechanical Contractors, Inc., 254 Ga. App. 144, 561 S.E.2d 471 (2002), which arbitrarily set a hourly definition of 36 hours for the word "temporarily" as utilized in O.C.G.A. § 40-6-204. The Court has now arbitrarily expanded its definition for "temporarily" from 36 hours to 50 hours.

I. Summary of the Facts and Issues in this Case

The salient facts in this case are rather simple: Plaintiff’s decedent was killed when his car collided with the rear of a disabled tractor-trailer that was parked in the emergency lane of Interstate 20 Highway. The emergency lane was designated as a no parking zone. The truck was parked there for 50 hours because of an alleged mechanical problem. It is not contraverted that emergency towing services were available on a 24-hour basis. Defendants simply chose to delay and to attempt to resolve the mechanical problem on the side of the road, rather than call a towing service to move the truck to a safe location.

The issue before the Trial Court and the Court of Appeals was whether there remained genuine issues of fact as to whether Defendants were negligent in the parking of their tractor-trailer in the emergency lane for a period of 50 hours. The Trial Court granted summary judgment, relying on the recent Court of Appeal’s decision of Phillips v. Southwest Mechanical Contractors, Inc., 254 Ga. App. 144, 561 S.E.2d 471 (2002). On appeal, the Court of Appeals affirmed in an unpublished decision.

It is because of Phillips and the recent decision in the present case that this Court should grant certiorari and establish clear precedent.

II. Certiorari Needs to be Granted to Stop the Continued Expansion of the Arbitrary Time Definition Established in Phillips

In Phillips and the present case, Defendants violated O.C.G.A. § 40-6-203, which prohibits parking a vehicle in a variety of locations, including any controlled access highway. In both cases, the Defendants argued that § 40-6-204 exonerated them from liability, as a matter of law, because their vehicle was left only "temporarily" on the side of the road. In fact, this latter statute, on its face, provides a limited exception to the provision of O.C.G.A. § 40-6-203, applicable only "…to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."

The Court of Appeals’ recent construction of these statutes, in Phillips and the present case, is contrary to both the clear meaning and prior construction of the statutes. The Court of Appeals has arbitrarily created an ever expanding, time specific definition of the term "temporarily", which is not otherwise found in or suggested by the statutes. This judicial legislation has resulted in the Trial Court in the present case summarily and improperly dismissing Plaintiff’s case.

The proper construction of these statutes and the establishment of clear precedent for future cases is warranted.

III. Phillips and this Case Establish an Arbitrary Hourly Standard Under

O.C.G.A. § 40-6-204

The Phillips Court relied on the fact that the defendant who parked the vehicle did so only "temporarily" while it attempted to repair the vehicle. However, in that case the vehicle was left on the side of the road for approximately 36 hours. As indicated above, O.C.G.A. § 40-6-204 provides an exception to O.C.G.A. § 40-6-203 limited to those situations where it is "impossible" to avoid stopping and temporarily leaving a disabled vehicle on the side of the road. Although the General Assembly did not provide a definition of "impossible" or "temporarily", after Phillips and the present case, the abandonment of an illegally parked, disabled vehicle on the side of the road for up to 50 hours does not, as a matter of law, provide a basis for liability. If 50 hours is "temporary" as a matter of law, one must wonder exactly how much further this arbitrary "free parking" can be extended. When does it cease to be "temporary"? Is 72 hours too long? What about a week?

The Court of Appeals in the present case, quoting Phillips, based it holding on the fact that it could "find no legislative authority or case precedent to support the argument that leaving the truck for 50 hours on the exit ramp in question constituted negligence." Apparently, therefore, it falls upon this Court to establish a maximum number of hours as to when a vehicle ceases to be "temporarily" parked on the side of the road, or, more appropriately, address this precedential problem by making it clear to that this is a classic issue for the jury to decide.

IV. Phillips and the Present Decision Conflict with Prior Precedents

Historically, the Court of Appeals has first considered whether there was a violation of O.C.G.A. § 40-6-203. Prior to Phillips and the present decision, parking on the side of the road in violation of O.C.G.A. § 40-6-203 was negligence per se. Storer Communications, Inc. v. Burns, 195 Ga. App. 230, 393 S.E.2d 92 (1990); Washington v. Kemp, 99 Ga. App. 635, 109 S.E.2d 294 (1959). Once it is established that the parking statute has been violated, then the court should look to any exceptions, in this case O.C.G.A. § 40-6-204, and causation. Where the Court of Appeals has considered the O.C.G.A. § 40-6-204 exception it has held that a jury question was presented. Dial v. Natalizi, 246 Ga. App. 97, 539 S.E.2d 617 (2000). Similarly, the Court of Appeals has always considered exceptions and issues of causation in the context of automobiles violating § 40-6-203 as issues for the jury. See e.g. Blake v. Continental Southeastern Lines, Inc., 161 Ga. App. 869, 289 S.E.2d 551 (1982); Smith v. Nelson, 123 Ga. App. 712, 182 S.E.2d 332 (1971).

Insofar as there is no apparent basis for the Court of Appeals’ refusal to follow its own precedents and avoid the clear intent and meaning of O.C.G.A. § 40-6-204, this Court should grant certiorari and reaffirm the longstanding law of negligence per se.

V. If Phillips and this Case Remain Standing, the "Temporarily" Illegally Parked Exception in O.C.G.A. § 40-6-204 Will Swallow the Rule

Taking the rationale in Phillips and the present decision to a logical conclusion, only defendants who "permanently" abandon their disabled vehicles on the side of the road could be held liable in tort.

This, however, is certainly not the intent of the General Assembly crafting O.C.G.A. §§ 40-6-203 and 40-6-204. Disabled vehicles left on the side of the road are an obvious hazard to Georgia drivers. O.C.G.A. §§ 40-6-203 addresses this issue. However, the General Assembly recognized that sometimes it may be "impossible" for a motorist to avoid parking a disabled vehicle on the side of the road "temporarily", that is, for a brief period of time.

In addressing this issue, the Generally Assembly obviously sought to require motorists who find themselves in this situation to remove their disabled vehicles from the side of the road as soon as possible.

The continued presence of the illegally parked, disabled vehicle on the side of the road presents an avoidable and unnecessary danger to the motoring public. As such, the exception to the general rule that vehicles are prohibited from parking on the side of controlled access highways should be strictly construed.

VI. The "Temporarily" Illegally Parked Exception Should be Subject to the Negligent Standard of Reasonableness Under the Circumstances

Since automobiles appeared on the rough carriage ridden roads of Georgia, the Courts have applied a reasonableness under the circumstances standard to the motorists’ conduct.

[A]side from the duty to observe the requirements specified in the act, the degree of care imposed upon drivers of automobiles in a public highway is ordinary care.

Giles v. Voiles, 144 Ga. 853, 855, 88 S.E.2d 207 (1916).

How long is too long to leave a disabled vehicle on the side of the road? The General Assembly did not tell us. The statute does not define "temporarily". It certainly is not for the Courts to decide summarily what is an acceptable amount of time or how long is too long. The circumstances in each case will determine whether and at what point a motorist is negligent in leaving his or her disabled vehicle on the side of the road. Factors such as the availability of emergency towing services, what steps the defendant took to remove the vehicle, and, of course, a variety of causation factors will be critical to the inquiry.

Where a statute does not speak to a specific situation, the standard of ordinary care is to be applied and left for a jury to decide.

The continued judicial expansion of Phillips is resulting in the nullification of O.C.G.A. § 40-6-203. The exception is swallowing up the rule. These arbitrary, time specific definitions are denying injured victims the right to a trial by a jury of their peers. What is "impossible" and what is "temporary" should be left for Georgia juries to decide.

Respectively submitted this 16th Day of April 2003.

ROBERTSON, BODOH & NASRALLAH, LLP

/s/ Mathew G. Nasrallah