Hynes v. Cagle

Blackburn, Presiding Judge. In this action for personal injuries, Frank Hynes appeals the trial court’s grant of partial summary judgment to Phil Cagle, Phil Cagle Custom Homes, Inc., and Isokern East, Inc., contending that the trial court erred by determining that alleged negligent acts by the defendants were not the proximate cause of injuries to Hynes’ shoulder after he suffered a fall. Because Hynes’ unilateral decision to walk through a dark room without the removable cast and crutches prescribed by his doctor to treat his broken foot and torn hamstring constituted an intervening act breaking the chain of proximate causation to the defendants, the trial court’s grant of summary judgment must be affirmed. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.* 1 Viewed in the light most favorable to the plaintiff, the record shows that Phil Cagle Custom Homes constructed a home for Hynes, — 368 — and Isokern East, acting as a subcontractor of Cagle, installed the home’s fireplace. Due to allegedly negligent construction of the fireplace, Hynes’ home caught fire on January 24, 2000, and, while Hynes was trying to put the fire out, a strong backdraft knocked him down, causing him to break his right foot and tear the hamstring in his left thigh. Due to the hamstring tear, Hynes subsequently began to experience painful spasms in his left leg. Hynes’ doctor prescribed both a removable cast and crutches for his injuries. Hynes’ doctor testified that an injury to the right foot and left leg such as Hynes had would cause an inherent instability in the patient until the injuries began to heal, thereby creating a need for crutches. Hynes’ doctor further opined that, after approximately two weeks of healing, most people could begin to walk without the crutches. Nevertheless, Hynes’ doctor kept him in the cast until approximately March 1, 2000. Approximately three weeks after his initial accident, on February 11, 2000, Hynes woke up in the middle of the night and decided to walk to the bathroom without his cast or crutches, despite the fact that he had been experiencing periodic muscle spasms in his left leg since his initial injury. Hynes recalled: “I was in bed, and I had gotten up to go into the restroom. And when I came back in, I was walking and I had a real hard spasm in my left leg. And I went to grab the left leg and I fell off balance. And I put my hand up as I was approaching the bed. And from the weight I hit the bed and it just dislocated the right shoulder.” Hynes subsequently sued the defendants in tort, claiming that both his original injuries to his leg and foot and his subsequent injury to his shoulder were caused by the defendants’ negligence in installing the fireplace in his home. In response, the defendants filed motions for partial summary judgment regarding Hynes’ shoulder injury, contending that it was too attenuated and remote from the original act of alleged negligence to support Hynes’ claims. The trial court granted the defendants’ motion for partial summary judgment, finding that Hynes’ own intervening act broke the chain of causation. Hynes now appeals this ruling. The trial court ruled appropriately. To state a claim against [the defendants, Hynes was] required to show that [the defendants’] negligence was the legal cause of [his shoulder injury], i.e., that [the defendants’] negligence was the cause to which the law attributes [his] injury. [He] must show a legally attributable causal connection between the defendant[s’] conduct and the alleged injury. The inquiry is not whether the defendant [s’] conduct constituted a cause in fact of the injury, but rather — 369 — whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. A cause which is merely incidental is not the proximate and responsible one. Where the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of a third person, the defendant [s] cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury. (Punctuation and emphasis omitted.) Bonard v. Lowe’s Home Centers.2 In this case, Hynes failed to prove that the defendants’ alleged negligence was the legal cause of his shoulder injury. To the contrary, the injury to Hynes’ shoulder is too remote from the allegedly negligent construction of the fireplace for the law to countenance a recovery. A prior and remote cause [cannot] be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. (Punctuation omitted.) Whitaker v. Jones, McDougald, Smith, Pew Co.3 Here, Hynes’ own actions intervened as a “distinct, successive, unrelated, efficient cause of the injury.” In spite of (1) the fact that he had been prescribed a removable cast and crutches and (2) his knowledge that he had been experiencing muscle spasms in his left leg, Hynes hobbled to the bathroom without even the crutches to stabilize himself. This intervening act broke the causal chain with the defendants. — 370 — The rule well affirmed by the authorities is that under the law a person is required to anticipate or foresee and guard against what usually happens or is likely to happen; but this rule does not require him to anticipate or foresee and provide against that which is unusual and not likely to happen, or, in other words, that which is only remotely and slightly probable. The general test in such cases is not whether the injurious result or consequence was possible, but whether it was probable; that is, likely to occur according to the usual experience of persons. A wrongdoer [cannot] be held responsible according to occasional experience, but only for a result of consequence which is probable according to the ordinary and usual experience of mankind. Whitaker, supra at 716. The testimony of plaintiffs treating physician regarding Hynes’ fall does not change this result. The precise testimony in question was, after removing objections and surplusage: Q. In your opinion, was it appropriate for a person who had just had an injury or a fracture to their . . . right foot and then injury to their left hamstring and abductor muscles and was in a cast brace and on crutches to hobble or scurry from the bed to the bathroom and back without the use of any crutches or any support? . . . A. As I’ve testified, I think the reason you use crutches early on is primarily for pain and stability and if he’s not having that much pain and he feels stable, I don’t think it is contraindicated to discontinue use of crutches. Q. And also to remove the cast brace as well at night within so short a span of time from injury? . . . barely three weeks after an injury like that? A. If it’s a short distance and they’re not having pain, I don’t think there is any damage done. Thus, during his testimony, Hynes’ doctor was asked, in a general sense, whether it would be okay for a patient with a fifth metatarsal fracture on the right foot and hamstring and abductor muscle injuries on the left leg to walk without a removable cast or crutches approximately two to three weeks after the initial injury. The doctor replied: “If it’s a short distance and [the patient is] not having pain, I don’t think there’s any damage done.” This general answer, however, clearly has no bearing on this case, as it is undisputed that Hynes had been experiencing pain, namely, the spasms in his left leg muscles, for the two weeks following his injuries. — 371 — In addition, the doctor’s testimony does not raise a jury issue because the physician qualified his final answer by stressing that walking without crutches might be okay “if . . . [the patient is] not having pain.” As we read the plaintiff’s deposition and the affidavit dated September 28, 2001, he stated that he had not had hamstring spasms before the fireplace incident but did have them periodically between the fireplace incident and the shoulder injury and that when they occurred, “I’ll tell you, those things can be painful.” Furthermore, if we read the doctor’s answer as an opinion that one should have been able to walk without a problem at the plaintiff’s stage of convalescence in this case, it would be tantamount to saying that the plaintiff’s muscle spasm and fall should not have happened and were, therefore, unforeseeable. Certainly, if the fall were not foreseeable to the treating physician, it would not be foreseeable to the defendants. Outside Georgia, the general rule reaches the same result we do. Some intervening causes are regarded as foreseeable (and hence not superseding) even though they could scarcely have been contemplated by any reasonable person in the place of the defendants at the time of his negligent conduct.4 However, it is apparently not foreseeable that an injured plaintiff will fail to exercise proper care while in an injured condition. The general rule is: So also, if the plaintiff’s weakened condition or physical disability subjects plaintiff, while exercising proper care, to the risk of a fall or some similar mishap, the plaintiff may recover if the accident was one normally to be expected in view of the plaintiff’s condition, even though the second accident injures some entirely different part of the body.5 When a plaintiff’s subsequent injury was due in some part to his own negligence, although the defendants’ original negligence was indisputably a cause in fact of the subsequent injury, the defendants’ negligence is said not to have been a proximate cause of the subsequent injury.6 — 372 — For all of the reasons above, the trial court’s grant of partial summary judgment is affirmed. Judgment affirmed. Andrews, P. J., and Mikell, J., concur. Ellington, J., concurs in the judgment only. Ruffin, P. J., Eldridge and Phipps, JJ., dissent. Johnson, P. J., disqualified. Footnotes [1] Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). [2] Bonard v. Lowe’s Home Centers, 224 Ga. App. 85, 87 (2) (479 SE2d 784) (1996). [3] Whitaker v. Jones, McDougald, Smith, Pew Co., 69 Ga. App. 711, 715-716 (26 SE2d 545) (1943). [4] Prosser and Keeton on the Law of Torts, § 44, p. 306 (5th ed. 1984). See, e.g., Hartnett v. Tripp, 231 Mass. 382, 384 (121 NE 17) (1918) (plaintiff using crutches but crutches slipped). [5] (Footnotes omitted; emphasis supplied.) Prosser and Keeton, supra at p. 310. [6] See S. S. Kresge Co. v. Kenney, 86 F2d 651 (D.C. Cir. 1936) (weak and unstable plaintiff got up to get glass of water); Ault v. Kuiper, 279 Mich. 1 (271 NW 530) (1937) (ankle sprained in car wreck “turned” while plaintiff walking down stairs; broke both legs); Sporna v. Kalina, 184 Minn. 89 (237 NW 841) (1931) (both legs broken by car; having healed enough to walk with a cane, fractured skull while walking down stairs unassisted). See generally Anno. Liability of Person Causing Injury for Aggravation Thereof by Accident, 9 ALR 255 (1920).