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Sotomayor v. TAMA I7/12/2005
t opinion testimony is not unlimited. It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. A party may not bolster his case as to the ultimate issue with expert testimony when the jury could reach the same conclusion independently of the opinion of others.
It follows that the trial court did not err in determining that the expert's testimony did not raise a genuine issue of material fact as to whether the landlord had a duty to install bumper stops.
The Sotomayors additionally argue that even if the landlord had no duty to install bumper stops in front of their building at the time it acquired the complex, the landlord assumed this duty when it installed the devices in front of the leasing office. This argument fails because there is no evidence that the landlord was aware that the devices should have been installed for the protection of pedestrians. "The true ground of liability is the landowner's superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted." The only evidence on this issue was Goldman's testimony that the devices were installed to prevent tenants from parking on landscaped areas. There is no evidence that anyone had driven a car into the wall of an apartment building at the complex.
2. Duty cannot be divorced from foreseeability, and there is no evidence to support the Sotomayors' argument that their child's death was reasonably foreseeable.
An event is not regarded as being foreseeable if it is one in the nature of an extraordinary coincidence, or a conjunction of circumstances, or which would not occur save under exceptional circumstances; if it is unusual and unlikely to happen, or if it is a rare event in experience, or if other and contingent experiences preponderate largely in causing the injurious effect.
Said in a different way, " ne is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what is only remotely and slightly probable."
The remote probability of the incident that killed this child is best illustrated by the testimony of the Sotomayors and their expert, as well by reference to precedents involving other rare occurrences. Juan testified that when he moved into the complex a few months prior to this incident, he noticed that were no bumper stops by the parking spaces in front of his building, but he did not mention it to the landlord because he "never imagined what was going to happen." Araceli testified that when she saw the car approach the lot, she thought Suarez was going to park her car; it can be inferred from her testimony that it never occurred to her that Suarez would continue onto the grass and strike her children. The expert, Hill, deposed that the distance between the brick wall of the apartment building and the edge of the sidewalk closest to the wall is 16 feet, and he prepared a diagram showing that the sidewalk is four feet wide. The evidence thus showed that the distance between the parking space and the wall was 20 feet. Araceli testified that Leslie was standing three feet away from the wall. Therefore, according to Hill's calculations and Araceli's testimony, Suarez's car travel
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