                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                             BRANCH and BETHEL, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                      March 15, 2018




In the Court of Appeals of Georgia
 A17A2119, A17A2120. ALMASSUD v. MEZQUITAL; and vice
     versa.

       MCFADDEN, Presiding Judge.

       These appeals arise from a final judgment entered after a jury trial. Because the

trial court erred in failing to instruct the jury on a substantial and vital issue presented

by the pleadings and the evidence — the defendant’s theory that his alleged

negligence per se was unknowing and unintentional — we must reverse and remand

for a new trial.

       On October 21, 2012, Abdulmohsen Almassud and Luisa Mezquital were

driving motor vehicles in opposite directions on a road in Forsyth County. As they

approached each other, Almassud’s jeep crossed the center line and crashed into

Mezquital’s car. Mezquital sustained severe injuries to her hand in the collision.
      On August 28, 2014, Mezquital filed a lawsuit against Almassud, alleging,

among other things, that Almassud knowingly operated the jeep on public roadways

while it was unsafe, that Almassud’s acts constituted negligence per se, and that his

conduct proximately caused her injuries. Almassud answered the complaint, claiming

that the steering of the vehicle had failed and caused the collision, that he did not

knowingly operate the jeep while it was unsafe, and that Mezquital’s injuries were

proximately caused by the negligence of non-party Oh’s Auto Center. Mezquital filed

an amended complaint, adding the owner of Oh’s Auto Center as a defendant.

      In the parties’ consolidated pre-trial order, Mezquital’s outline of the case

contended, among other things, that Almassud was negligent per se because he had

violated several Georgia code sections concerning operating vehicles and that such

negligence per se proximately caused her injuries. In the pre-trial order, Almassud’s

outline of the defense asserted that the jeep was rendered uncontrollable when its

steering suddenly and without warning failed; that the jeep collided with Mezquital’s

vehicle because Almassud was unable to steer the jeep to avoid the collision; that

about a week before the collision, Oh’s had installed a new steering kit on the

vehicle; that Almassud had driven the jeep for approximately a week with no apparent



                                         2
problems; and that Oh’s negligent work on the jeep resulted in the steering failure and

proximately caused Mezquital’s injuries.

      The case proceeded to a jury trial, at which Mezquital presented evidence,

including expert testimony, supporting her claims of negligence and negligence per

se against Almassud. Almassud testified that the steering on his jeep was working

fine prior to the work by Oh’s, that Oh’s had installed the new steering kit several

days before the accident, and that right before the collision his vehicle had a steering

failure. He also presented expert testimony that the steering mechanism had been

improperly installed and had caused a loss of steering control prior to the collision.

      Almassud’s written requests for jury instructions included the following: “I

charge you members of the jury that for an owner of a vehicle to be held liable for

injuries that occur due to an unsafe or defective condition of his vehicle[], the

plaintiff must show not only that the vehicle was [being] operated with the owner’s

consent, but that the owner knew of its defective or unsafe conditions.” (Internal

quotation marks omitted). At a jury charge conference, Almassud’s attorney informed

the court that the request as written could be modified, but that the jury should be

instructed that “Almassud had to have knowledge of the unsafe or defective condition

of the vehicle.” Almassud’s attorney further explained that such a charge would tie

                                           3
into the court’s charge that a violation of the statute governing the driving of an

unsafe or improperly equipped vehicle is negligent per se. Thus, counsel requested

a jury charge “[t]hat there has to be some knowledge on the part of the driver that he

is, in fact, operating an unsafe or defective vehicle.”

      The trial judge refused the request, stating: “I’m not going to give that. I’m not

going to give that alteration. The issue . . . ultimately comes down to reasonable care.

You certainly can argue it, that he didn’t know and had no way of knowing and that

should bear on how they consider the verdict[,] but I’m not going to add that. I think

that unnecessarily complicates it.”

      During its charge to the jury, the trial court instructed the jury that Mezquital

contended that Almassud had violated certain statutes and that “[s]uch violations are

called negligence per se which means negligence as a matter of law.” The court

instructed the jury on each of the statutes in question, including OCGA § 40-8-7 for

driving an unsafe vehicle, OCGA § 40-6-40 (a) for operating a vehicle in the wrong

lane of travel, and OCGA § 40-6-48 for failure to maintain a lane. At the conclusion

of each instruction on the substance of each statute, the trial court told the jury that

“[a] violation of this statute is negligence per se.”



                                           4
      The jury returned verdicts awarding Mezquital special and general damages

totaling more than $30 million, finding Almassud wholly responsible for the

damages, and awarding Mezquital $93,884 in attorney fees. The trial court entered

judgment on the verdicts. The court denied Almassud’s motion for a new trial and

Mezquital’s motion seeking additional attorney fees beyond those awarded by the

jury. Almassud appeals from the denial of his motion for a new trial and Mezquital

cross-appeals, challenging the denial of her request for additional attorney fees.

      1. Refusal to charge the jury on Almassud’s defense.

      Almassud contends that the trial court erred in failing to charge the jury on his

defense that he had no knowledge that his vehicle was defective. We agree.

      “It is the duty of the trial court, whether requested or not, to give the jury

appropriate instructions on every substantial and vital issue presented by the

evidence, and on every theory of the case.” Mullis v. Chaika, 118 Ga. App. 11, 18 (4)

(162 SE2d 448) (1968) (citations and punctuation omitted). See also Gurin v. General

Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830) (1984) (“The trial court is

obligated to instruct the jury on all theories and issues raised by the parties and

supported by the evidence.”).



                                          5
      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. A trial
      court may deny a specific request to charge if any portion of the request
      is inapt or incorrect, because a request to charge must be correct, legal,
      apt, even perfect, and precisely adjusted to some principle involved in
      the case. Nevertheless, a trial court must instruct a jury on the law as to
      every controlling, material, substantial and vital issue in the case. The
      failure to charge on a properly asserted and legally cognizable theory of
      recovery [or defense], whether requested or not, or attention be called
      to it or not, is harmful as a matter of law.

Oglethorpe Power Corp v. Estate of Forrister, 332 Ga. App. 693, 707 (3) (774 SE2d

755) (2015) (citation and punctuation omitted). Accord Duffield v. Chui, 314 Ga.

App. 214, 215 (723 SE2d 506) (2012).

      In this case, Mezquital made out a prima facie showing that Almassud’s

operation of the vehicle was negligence per se because it violated at least one state

statute, which “mean[t] that the burden then shift[ed] to [Almassud] to show that the

violation was unintentional and in the exercise of ordinary care. Otherwise [the prima

facie showing would] be conclusive.” Williams v. Calhoun, 175 Ga. App. 332, 333-

334 (333 SE2d 408) (1985) (citations omitted). Accord Whole Foods Mkt. Group v.

Shepard, 333 Ga. App. 137, 140 (3) (775 SE2d 616) (2015) (“Once a plaintiff

establishes a prima facie case of negligence per se, the ‘burden then shifts to the

defendant to show that the violation was unintentional and in the exercise of ordinary


                                          6
care.’ [Cit.]”); Johnson v. McAfee, 151 Ga. App. 774, 775 (2) (261 SE2d 708) (1979)

(Upon showing of negligence per se, “‘[i]t then devolves upon the defendant to

produce evidence in his own behalf to satisfy the jury that the operation of the

automobile was not a violation of a statute or ordinance because unintentional and not

the result of any failure to exercise ordinary care on his part.’ [Cit.]”). Thus, in order

“to rebut the presumption that he was [negligent, Almassud] was required to present

sufficient competent evidence that [any violation of a state statute was

unintentional].” Butgereit v. Enviro-Tech Environmental Svcs., 262 Ga. App. 754,

755 (1) (586 SE2d 430) (2003).

      Almassud attempted to meet this burden and rebut the presumption of

negligence by showing that the steering in his vehicle had been defectively installed,

that the steering failed immediately before the collision, and that he did not know of

any defect in the vehicle. See generally Jacobs v. Felmet, 105 Ga. App. 234 (124

SE2d 307) (1962) (finding no negligence on part of defendant where he had no

knowledge or notice of any defect in brakes until they suddenly gave way causing

collision with vehicle traveling in opposite direction). As recounted above, he raised

this defense in his pleadings and presented some evidence, including his own

testimony and that of an expert witness, supporting that defense theory.

                                            7
      Accordingly, Almassud was entitled to a jury instruction on the vital issues of

knowledge of a defect and unintentional violations that were raised by the pleadings,

the evidence, and the defense theory of the case. Even assuming that Almassud’s

written request for such an instruction was not perfect, he acknowledged at the charge

hearing that the written request should be changed in order to instruct the jury

properly on the defense; and “[n]evertheless, a trial court must instruct a jury on the

law as to every controlling, material, substantial and vital issue in the case.”

Oglethorpe Power Corp., supra (citation omitted). Accord Duffield, supra (failure to

charge on a properly asserted and legally cognizable theory, whether requested or not,

is harmful error). However, these vital issues concerning the defense theory were not

included in, or otherwise covered by, the trial court’s jury instructions.

      While we are reluctant to disturb any jury’s verdict, a new trial must be
      granted when a trial court deprives a defendant of a theory of defense by
      [failing to give a] charge that is sustained by the evidence. Given that
      the trial court’s [jury] charge . . . deprived [Almassud] of a theory of
      defense to which [he was] entitled, we conclude that [he is] entitled to
      a new trial.”

Maxineau v. King, 304 Ga. App. 217, 221 (695 SE2d 732) (2010) (citations and

punctuation omitted). See also Lawyers Title Ins. Corp. v. New Freedom Mortg.

Corp., 288 Ga. App. 642, 645 (1) (655 SE2d 269) (2007) (jury charge errors on legal


                                          8
principles that go to the crux of the appellant’s case are considered substantial and

harmful).

      2. Remaining enumerations.

      Given our holding above in Division 1, we do not reach the remaining

enumerations of error set forth in either the main appeal or the cross-appeal.

      Judgments reversed and cases remanded. Branch and Bethel, JJ., concur.




                                         9
