Wilson v. Valentine

Banke, Presiding Judge. The appellee filed this action to recover for personal injuries allegedly sustained when a motor vehicle in which she was riding was struck by another vehicle. Named as defendants are the driver of the vehicle in which the appellee was riding, who is the appellant herein, the driver of the other vehicle, whose name is Rackley, and Rackley’s employer. The appellee settled her claims against Rackley and his employer, following which the appellant moved for summary judg ment. The case is before us on interlocutory appeal from the denial of j that motion. Although the appellee neither filed a written response to the appellant’s motion for summary judgment within the time required by Uniform Superior Court Rule 6.2 nor requested oral argument on the motion, a hearing was nevertheless scheduled; and on the day of the] hearing, the appellee filed her own and Rackley’s depositions. Th trial court’s denial of the motion for summary judgment was based o: a determination that Rackley’s deposition raised a jury issue as ti whether the appellant had been negligent. Held: 1. The appellant contends that he was entitled to summary judg ment based on the appellee’s failure to file a written response to th motion within the time required by Rule 6.2. This contention is with out merit. “There is no such thing as a ‘default summary judgment. By failing to respond to a motion for summary judgment, a part; merely waives his right to present evidence in opposition to the mo tion. It does not automatically follow that the motion should b granted. ‘A motion for summary judgment should not be granted un less it affirmatively appears from the pleadings and the evidence tha¡ *245 the party so moving is entitled to prevail.’ [Cits.]” McGivern v. First Capital Income Prop., 188 Ga. App. 716, 717 (373 SE2d 817) (1988). Decided March 5, 1991 Rehearing denied March 25, 1991. Downey, Cleveland, Parker & Williams, G. Lee Welborn, for appellant. 2. The appellant alternatively contends that the trial court erred in considering Rackley’s deposition because it was not timely filed. However, the record does not reflect that the appellant objected to the filing of the deposition or to the trial court’s consideration of it in ruling on the motion for summary judgment. Accordingly, this contention provides no ground for reversal. Accord O’Quinn v. Southeast Radio Corp., 190 Ga. App. 608, 610 (1) (380 SE2d 487) (1989). 3. The appellant contends that the evidence established without dispute that the collision was not proximately caused by any negligence on his part. The evidence showed that the appellant was in a left turn lane on Atlanta Road at the time the collision occurred, proceeding towards an intersection at a speed of 10 to 15 miles per hour. He testified that the traffic light at the intersection was green in his direction and that as he was preparing to make his left turn, he was struck on the right passenger door by Rackley, who had just turned left onto Atlanta Road from a side street. The appellant testified that he had observed Rackley edging out onto Atlanta Road and that “[h]e [Rackley] just looked to the right and then pulled out without looking to the left at all.” The appellee similarly testified that she did not observe Rackley look to his left before he pulled out onto Atlanta Road and further stated that the appellant had not acted in a negligent manner. However, Rackley maintained that he had in fact looked to his left before pulling out onto the roadway. “ ‘ “It is generally a question for a fact-finding body to determine [questions of negligence and whose negligence and what negligence involved is the sole proximate cause of the injury. It is only where the [negligent conduct alleged is susceptible of but one inference that it [becomes a question of law for the court to determine.” ’ [Cits.]” Lewis L. Duggan, 184 Ga. App. 563, 565 (362 SE2d 73) (1987). We believe the evidence of record in the present case, including the appellee’s fcwn testimony, conclusively negates any allegation that the collision Ivas proximately caused by negligence on the part of the appellant fcnd establishes as a matter of law that Rackley simply drove directly Into the appellant’s vehicle from a side street. We accordingly hold ■hat the trial court erred in denying the appellant’s motion for sum-Inary judgment. Judgment reversed. Birdsong, P. J., and Cooper, J., concur. *246 Wain & Miningham, William M. Miningham III, for appellee.