                             SECOND DIVISION
                               DOYLE, C. J.,
                         MILLER, P. J, and REESE, J.

                   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


                                                                      June 2, 2017




In the Court of Appeals of Georgia
 A17A0512. POLITZER v. XIAOYAN et al.                                        DO-021

      DOYLE, Chief Judge.

      Eva Emery Politzer sued Huang Xiaoyan and her underinsured motorist carrier,

Travelers Casualty Company of America (collectively, “the defendants”), seeking to

recover for injuries she sustained when she was struck by a vehicle driven by

Xiaoyan. The trial court granted summary judgment to the defendants, and this appeal

followed. We affirm, for the reasons that follow.

            Summary judgment is due to be granted when the moving party
      has demonstrated that there is no genuine issue of material fact, so that
      the party is entitled to judgment as a matter of law. A defendant may do
      this by either presenting evidence negating an essential element of the
      plaintiff’s claims or establishing from the record an absence of evidence
      to support such claims. Thus, the rule with regard to summary judgment
      is that a defendant who will not bear the burden of proof at trial need not
      affirmatively disprove the nonmoving party’s case, but may point out by
      reference to the evidence in the record that there is an absence of
      evidence to support any essential element of the nonmoving party’s
      case. Where a defendant moving for summary judgment discharges this
      burden, the nonmoving party cannot rest on its pleadings, but rather
      must point to specific evidence giving rise to a triable issue.1


“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.”2

      So viewed, the record shows that on November 13, 2011, at approximately 7:30

p.m., Politzer went for a walk after returning home from a day of work. It was dark,

and she was wearing black pants, a black t-shirt, a black jacket with white lettering,

a black hat, and white tennis shoes. Politzer left her house, walked down Barfield

Road, crossed over Hammond Drive at a cross-walk, and continued down Barfield

until she reached Mount Vernon Highway, at which point she turned around and

began walking back down Barfield toward her home. Politzer decided to cross

      1
       (Punctuation omitted.) Moore v. Camara, 317 Ga. App. 651, 651-652 (732
SE2d 319) (2012), quoting Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d
779) (2010). See also OCGA § 9-11-56 (c).
      2
       (Citation and punctuation omitted.) Hunsucker v. Belford, 304 Ga. App. 200
(695 SE2d 405) (2010).

                                          2
Hammond Drive again, but elected to do so outside of the cross-walk and intersection

she had traversed a few minutes earlier, believing that it was unsafe to cross at the

intersection because drivers “tend to fly through” it, the road was at an incline,

visibility was limited, and she was unable to see oncoming traffic at the intersection.

         Before crossing Hammond, Politzer stopped and looked while standing in the

grass in a worn footpath; there was no sidewalk where she stood. She saw a single

vehicle – Xiaoyan’s – approaching with its headlights on; she was not sure how far

away it was, but later recalled that it was “not too far,” but “far enough away that

[she] could get across [the road].” Politzer then crossed the first two lanes and stood

in the median.3 She looked in the direction of Xiaoyan and again saw his vehicle

approaching. Nevertheless, she continued across the street, looking straight ahead;

she was tired and “thinking about the next day and what she had to do,” and she did

not look again in Xiaoyan’s direction. Politzer was not sure how fast Xiaoyan was

traveling, but later stated that she would not have continued across the road if she

thought he was speeding. Xiaoyan struck her when she was a few steps away from the

other side of the road.


         3
             Hammond Drive was a four-lane road with a flat median consisting of painted
lines.

                                              3
      Police responded to the scene. The investigating officer noted in the police

report that “[Politzer] was not crossing in a cross walk and darted in front of

[Xiaoyan’s] vehicle . . . when she was struck. [Xioayan] had the right of way and did

not see [Politzer].” Xiaoyan was not cited; Politzer was cited for darting into traffic4

and for unlawfully walking upon the roadway under the influence of alcohol.5 Politzer

later pleaded guilty to darting into traffic, and the other charge merged into it.

      Travelers moved for summary judgment, and Xiaoyan joined the motion,

arguing that there was no evidence that Xiaoyan was negligent; Politzer had assumed

the risk of injury; and Politzer had failed to exercise ordinary care for her own safety.

Following a hearing, the trial court granted the motion in a single-page order without

specifying the basis for the ruling. This appeal followed.

      1. As in initial matter, we address the parties’ confusion regarding whether the

trial court granted summary judgment to Xiaoyan as well as Travelers. As

aforementioned, Xiaoyan joined Travelers’s motion and adopted by reference the

      4
        OCGA § 40-6-91 (b) (“No pedestrian shall suddenly leave a curb or other
place of safety and walk or run into the path of a vehicle which is so close that it is
impractical for the driver to yield.”).
      5
       OCGA § 40-6-95 (“A person who is under the influence of intoxicating liquor
or any drug to a degree which renders [her] a hazard shall not walk or be upon any
roadway or the shoulder of any roadway.”).

                                           4
related pleadings. In the order, styled “Order Granting Traveler[]s Insurance

Company’s Motions for Summary Judgment,” the trial court noted that Xiaoyan

joined the motion, which it then granted. Thus, the trial court granted summary

judgment to both defendants.

      2. Politzer argues that the trial court erred by granting summary judgment to

the defendants on her negligence claim. We disagree.

            The elements of a cause of action for negligence in Georgia are:
      (1) A legal duty to conform to a standard of conduct raised by the law
      for the protection of others against unreasonable risk of harm; (2) a
      breach of this standard; (3) a legally attributable causal connection
      between the conduct and the resulting injury; and, (4) some loss or
      damage flowing to the plaintiff’s legally protected interest as a result of
      the alleged breach of the legal duty. The mere fact that an accident
      happened and a plaintiff was injured affords no basis for recovery unless
      the plaintiff carries [his] burden of proof and shows that the accident
      was caused by specific acts of negligence of the defendant.6




      6
       (Punctuation omitted.) Moore, 317 Ga. App. at 652-653, quoting Berry v.
Hamilton, 246 Ga. App. 608, 608-609 (541 SE2d 428) (2000).

                                          5
      In Moore v. Camara,7 the plaintiff was walking along the shoulder of a

highway at 10:00 p.m. when he was struck by the defendant’s vehicle.8 The defendant

never saw the plaintiff, he was not speeding, he had his headlights on, and there was

no traffic in the area.9 The plaintiff told the police officer who responded to the scene

that he had been trying to cross the highway when he was hit, and “[t]he officer

concluded that [the plaintiff] misjudged the clearance and was distracted as he was

crossing the highway, thus causing the accident.”10 This Court affirmed the grant of

summary judgment to the driver, concluding that

      a jury would not be authorized to infer negligence because an inference
      cannot be based on evidence which is too uncertain or speculative or
      which raises merely a conjecture or possibility. A finding of fact which
      may be inferred but is not demanded by circumstantial evidence has no
      probative value against positive and uncontradicted evidence that no
      such fact exists.11


      7
          317 Ga. App. at 651.
      8
          See id. at 652.
      9
          See id.
      10
           See id.
      11
        (Punctuation omitted.) Id. at 653, quoting Butler v. Huckabee, 209 Ga. App.
761, 762 (2) (434 SE2d 576) (1993), Werner Enterprises. v. Lambdin, 307 Ga. App.
813, 815 (706 SE2d 185) (2011).

                                           6
      Here, the evidence shows that Politzer, who was dressed in black clothing,

crossed a major roadway at night outside of an available cross-walk, and there is no

evidence that Xiaoyan was speeding, was violating any rules of the road, or saw her

before striking her. And Politzer’s “suggestion that [Xiaoyan] must have failed to

exercise due diligence to avoid striking [her] is not supported by evidence. Because

[Politzer] points to no specific evidence in the record giving rise to a triable issue, we

affirm.”12




      12
          Moore, 317 Ga. App. at 653. See also Tucker v. Love, 200 Ga. App. 408, 409
(1) (408 SE2d 182) (1991) (finding that the defendant bus driver had no duty to
discover the pedestrian plaintiff in the street because she entered the roadway after
the bus had begun to move forward after discharging a passenger, and “there is no
evidence whatsoever that [the] defendant could have, or should have, seen the victim
running into a collision path with the [bus]”) (punctuation omitted); Johnson v. Ellis,
179 Ga. App. 343, 344-345 (346 SE2d 119) (1986) (affirming the grant of a directed
verdict because there was no evidence that the defendant driver, who had her
headlights on and was traveling within the speed limit, “could have, or should have,
seen” the plaintiff, who had been drinking, crossing a four-lane highway in a dimly
lit interchange and colliding with her car). Compare Fountain v. Thompson, 252 Ga.
256, 257 (312 SE2d 788) (1984) (holding that a jury could find that a defendant
driver was negligent in failing to discover the pedestrian, who had an illegal blood
alcohol concentration and was lying prone on “a straight, clear, unobstructed section
of highway” because the driver “could have seen the deceased well before hand and
certainly in time to stop or evade him if he had been more observant”).

                                            7
      3. Based on our holding in Division 2, we need not address whether Politzer

assumed the risk of her injuries or failed to exercise ordinary care for her own safety.

      Judgment affirmed. Miller, P. J., and Reese, J., concur.




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