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Gates v. Navy7/6/2005
abstract definition that went to the issue of foreseeability. "While a correct statement of the law, this charge did not address a disputed issue in the instant case." Dixie St Process Posters, Inc. v. Winn Stores, Inc., 263 Ga. App. 246, 252 (2)(c) (587 SE2d 211) (2003). Navy never disputed the fact that if he had been traveling through the road construction site in an unsafe and inappropriate manner, it would have been foreseeable that he might strike a DOT construction worker. Rather, Navy's contention throughout the litigation was that he had driven through the construction area in a safe and cautious manner, but Gates had inappropriately stepped out into the roadway and was hit in the arm by Navy's truck as a result. Accordingly, Gates was not harmed by the trial court's failure to give this charge. Id.
4. Finally, Gates contends that the trial court erred in charging the jury on comparative negligence. "A charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject. Sanders v. Moore, 240 Ga. App. 730, 731 (2) (524 SE2d 780) (1999)." King v. Turner, 255 Ga. App. 56, 57 (564 SE2d 463) (2002). Here, there was at least some evidence presented at trial that supported the trial court's decision to give the comparative negligence charge. Gates and his supervisor both testified that their DOT training emphasized the importance of keeping a lookout while working. Gates testified that he had not looked up when he heard Navy's truck approaching, and that, had he done so, he would have been able to avoid any contact with the truck. Consequently, there was evidence in this case that supported the charge.
However, Gates argues that Navy forfeited any right to a comparative negligence charge, given Navy's testimony accusing Gates of purposely stepping into the roadway and striking his vehicle. Gates has misconstrued our comparative negligence case law. "It is well-settled that the defenses of comparative negligence, negligence per se, assumption of the risk and contributory negligence are not valid defenses to intentional, wilful, or wanton and reckless torts, and it is inappropriate in such cases to instruct the jury thereon." (Citations omitted.) Hopkins v. First Union Bank, 193 Ga. App. 109, 111 (2) (387 SE2d 144) (1989). See also Flanagan v. Riverside Military Academy, 218 Ga. App. 123, 126 (460 SE2d 824) (1995) ("The principle of comparative negligence cannot be applied to bar a claim premised on an intentional tort.") (citation omitted). What these cases make clear is that comparative negligence may not be asserted as a defense when the party seeking to assert the defense has himself been accused of an intentional tort. Here, the trial court directed a verdict on Gate's punitive damages claim. Only Gates' negligence claim against Navy went to the jury in the compensatory damages phase. Thus, Gates' argument is without merit. The trial court did not err in charging on comparative negligence.
Judgment affirmed. Blackburn, P. J., and Miller, J., concur.
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