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Gates v. Navy7/6/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
Appellant Mark L. Gates brought the instant personal injury action against appellee Roy C. Navy, III, in the State Court of Cobb County. After two days of hearing evidence, a Cobb County jury found in favor of Navy. Gates appeals, contending that the trial court erred (1) in excluding any evidence that Navy fled the scene of the accident from the compensatory damages phase of trial; (2) in partially redacting his "negligence per se" charge; (3) in refusing to give his "no right to assume road is clear" and "anticipation of consequences" charges ; and (4) in charging on comparative negligence. Finding no error, we affirm.
This action arose out of a motor vehicle incident which occurred at a Cobb County Department of Transportation ("DOT") road construction site. Gates filed suit to recover damages for injuries allegedly sustained when an exterior mirror of Navy's truck struck Gates' arm while he was working at the DOT construction site. Gates also sought punitive damages based on his claim that Navy fled the scene of the incident after being advised that Gates was injured and that the police were being called. Following the trial by jury on Gates' compensatory damages claim, the trial court granted Navy's motion for a directed verdict on the punitive damages claim.
1. Gates first contends that the trial court erred in excluding from the compensatory damages phase of trial any testimony or evidence showing that Navy left the scene of the accident before the police arrived. See Cheevers v. Clark, 214 Ga. App. 866, 868 (3) (449 SE2d 528) (1994). A review of the record reveals the trial court initially excluded the evidence based on Gates' consent to a motion to bifurcate/trifurcate the trial proceeding which sought, inter alia, exclusion of the evidence in the compensatory damages phase of trial. "It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party's own trial tactics or conduct procured or aided in causing." (Citations and punctuation omitted). Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 617 (2) (511 SE2d 904) (1999). See also Robinson v. Ellis, 268 Ga. App. 52, 54 (601 SE2d 426) (2004) (party may not complain of error that he induced). Moreover, any error in the trial court's initial ruling was harmless because evidence of Navy's alleged flight was admitted into evidence during the compensatory damages phase, notwithstanding the trial court's ruling. See Finley v. Franklin Aluminum Co., 132 Ga. App. 70, 74 (10) (207 SE2d 543) (1974). On direct examination, Gates' supervisor testified that Navy stopped at the accident scene, learned that Gates had been injured, and "turned around and left" when Gates "picked up the phone showed [Navy] that he'd dialed 911."
Finally, any error in the trial court's initial exclusion of the evidence was harmless for an additional reason. The trial court later reconsidered its ruling and gave Gates' counsel an opportunity to further cross examine Navy for the purpose of establishing that Navy "did not stay at the scene, and that he did not report the accident." Gates' counsel declined to do so. Under these circumstances, we find no error.
2. Gates next contends that the state court erred by omitting the words "while driving through a construction zone in violation of [OCGA] ยง 40-6-75" from the charge given to the jury on negligence per se. In lieu of giving Gates' requested charge on negligence per se verbatim, the trial court first charged the jury using the language of the aforesaid statute: "The driver of a vehicle shall yield the right of way to any authorized vehicle or pedestrian actually engaged in work upon a hi
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