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Levine v. Choi9/16/1999
Sandra Levine sued Mr. and Mrs. Choi and Helen Dimitropoulos for personal injuries allegedly arising out of a three-car collision in which Choi's vehicle rear-ended Dimitropoulos' vehicle, forcing it into the rear of Levine's vehicle. Joined by her husband who sued for loss of consortium, Levine claimed she suffered debilitating soft tissue injuries to her back, shoulder, and neck, resulting in fibromyalgia (recurring areas of myofascial pain) and higher blood pressure. The jury returned a defense verdict. Appealing the denial of their motion for new trial, the Levines assert three errors on appeal: (i) the verdict was contrary to the evidence, (ii) the court instructed the jury it could find none of the defendants negligent, and (iii) the court's jury instructions imposed a higher standard of proof than preponderance of the evidence.
1. "A trial Judge's denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict." Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997) (citations and punctuation omitted). If there is any evidence to support the verdict, even if not compelling, the verdict will stand, despite substantial evidence to the contrary.Id.
Moreover,
a jury verdict returned in favor of the defendant in a tort case represents a finding by the jury that the plaintiff did not meet his burden of proof as to the defendant's liability for damages. As against this negative finding by the jury against the plaintiff, an appellate court would not be authorized to hold that a contrary positive verdict in favor of the plaintiff was demanded unless a review of the record demonstrated that, as a matter of law, the plaintiff had met his initial burden of proof as to the defendant's liability and that the defendant had then failed to produce any evidence as to his non-liability. Thus, an appellate court's reversal on the general grounds of a judgment which was entered on a jury verdict returned for the defendant in a tort case requires the existence of undisputed evidence of the defendant's liability for damages. Mays v. Farah U. S. A., Inc., 236 Ga. App. 1, 3 (3) (510 SE2d 868) (1999) (citations and punctuation omitted; emphasis in original).
A negligence action requires proof that the defendant breached a duty of care owed to plaintiff, which breach proximately caused damage to plaintiff. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). Failure to prove that the damages were proximately caused by the negligence is fatal to the action. Wilson v. Mallard Creek Holdings, - Ga. App. - (Case No. A99A0299; decided June 29, 1999); Rubin v. Fields, 237 Ga. App. 207, 209 (2) (515 SE2d 180) (1999).
Pretermitting whether the evidence was disputed on negligence, the evidence was clearly disputed on proximate causation. Levine and her physician admitted that prior to the accident Levine for years had suffered from pain in her back, shoulders, and legs brought on by spina bifida occulta, scoliosis, osteoarthritis, and a ruptured disk. The physician had even told her she was experiencing episodes of myofascial pain that he diagnosed and treated as possible fibromyalgia and that were possibly caused by Levine's recurring hypermobility and sleep problems. She also admitted in a medical questionnaire that prior to the accident she suffered from high blood pressure, for which she was prescribed medicine.
Evidence that plaintiff's injuries were pre-existing is sufficient for a jury to find the accident did not proximately cause the injuries. Duncan v. Randolph, 236 Ga. App. 566, 568 (512 SE2d 688) (1999); Blosfeld v. Hall, 236 Ga. App. 286, 287-288 (511 SE2d 196)
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