                              SECOND DIVISION
                               ANDREWS, P. J.,
                           MILLER and BRANCH, 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


                                                                 November 20, 2015




In the Court of Appeals of Georgia
 A15A1454. REDMON et al. v. DANIEL et al.

      BRANCH, Judge.

      Danny Jermont Daniel died as a result of being struck by one or more motor

vehicles while walking along an exit ramp on Georgia Highway 316 in Gwinnett

County. Connie June Daniel, as Danny’s surviving spouse and administrator of his

estate, sued Kelly Anne Gitaitis and Bobby Redmon, the drivers of the two vehicles

involved in the incident. She also sued Redmon’s employer, Republic Services of

Georgia, L. P., d/b/a United Waste Services (“Republic”). Daniel asserted a claim for

wrongful death, alleging that the negligence of Gitaitis and Redmon proximately

caused her husband’s death; she further alleged that Republic, as Redmon’s employer,

was vicariously liable for his negligence. A jury found in favor of Daniel and

apportioned 42 percent of the liability for Danny’s death to Redmon and his
employer. Redmon and Republic now appeal from the trial court’s order of judgment

as well as the denial of their motion for judgment not on verdict, arguing that there

was insufficient evidence to prove that any alleged negligence of Redmon

proximately caused Danny’s death. For reasons explained more fully below, we agree

and therefore reverse the judgment of the trial court.

      “On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we

construe the evidence in the light most favorable to the party opposing the motion,

and the standard of review is whether there is any evidence to support the jury’s

verdict.” Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011) (citation

and punctuation omitted). So viewed, the evidence shows that at approximately 5:00

a.m. on the morning of September 16, 2009, Danny was walking in or next to the

roadway of the exit ramp from Georgia Highway 316 to Georgia Highway 120. At the

time, Danny was dressed in dark green shorts and a black tee shirt. As Danny was

traveling the exit ramp on foot, Gitaitis, driving a Chevrolet Tahoe, exited Highway

316 and proceeded along the ramp towards Highway 120. Gitaitis was followed by

a Mack garbage truck owned by Republic and driven by Redmon. The portion of

Highway 316 from which the exit ramp runs is a controlled access highway on which

pedestrians are not allowed. There are no street lights present on the tree-lined exit

                                          2
ramp, and several witnesses, including the officers who investigated the accident,

testified that there is no ambient lighting on the ramp from any nearby street signs.

The evidence also showed that the exit ramp was particularly dark on the morning in

question, as it was cloudy with either a mist or light rain falling.

      The speed limit on Highway 316 is 55 miles per hour, and Gitaitis and Redmon

were moving along the exit ramp at between 40 and 50 miles per hour, with the

garbage truck traveling approximately 200 feet behind the Tahoe. According to both

Gitaitis and Redmon, Gitaitis was traveling along the middle of the exit ramp when

she struck Danny, who Gitaitis said was in the middle of the road. Gitaitis testified

that although she had her high-beam headlights on and was looking straight ahead,

she did not see Danny until her car hit him.

      Based on the evidence, both the police and the medical examiner believed that

the initial impact was between the right, front side of Gitaitis’s vehicle and the left

side of Danny’s lower body. Following this impact, Danny’s body was thrown onto

the hood of Gitaitis’s Tahoe, with his head shattering her windshield and creating a

large hole on the passenger side of the glass. Danny’s body then came off of the

Tahoe and was airborne for a short time before landing on the pavement in the middle

of the roadway. Although Redmon did not see the initial impact, he did see something

                                           3
that he believed was a deer come off Gitaitis’s vehicle and land in the roadway.

Because the body was coming off the right side of the Tahoe, Redmon took the only

evasive action available to him, which was to brake and swerve to the left. When

Redmon felt the empty garbage truck begin to tip, he corrected the steering wheel

back to the right. At some point, the rear tires of the garbage truck ran over Danny’s

head.

        With respect to the cause of her husband’s death, Daniel presented the

testimony of Dr. Carol Terry, the Chief Medical Examiner for Gwinnett County.

Based on the evidence available to her, Dr. Terry testified that there were three

potential causes of Danny’s death: the blow to Danny’s head when he struck Gitaitis’s

windshield; the blow to Danny’s head when he landed on the pavement; and the

rupturing of Danny’s skull.1 Dr. Terry further testified that she could not say that one

cause of death was more likely than any other and that she had no way to tell if Danny

was alive when the garbage truck hit him.2 She explained that head injuries caused

        1
        Danny’s death certificate listed the cause of his death as “generalized blunt
force trauma with bursting rupture of the head” as the result of being “struck by [ ]
motor . . . vehicles.”
        2
         Dr. Terry’s inability to determine whether either of the first two impacts was
fatal resulted from the fact that because of the injury inflicted by the garbage truck,
Danny’s skull and brain were not available for examination.

                                           4
by hitting the windshield and striking the pavement would have been blunt force

trauma injuries, both of which were potentially fatal. Dr. Terry testified that although

in some cases a blow to the head can cause instantaneous death, in most such cases

death is not instantaneous, and it takes longer than two to three seconds for a person

suffering a blunt-force head trauma to die. Thus, Dr. Terry concluded that while it

was a medical possibility that Danny was alive at the time the truck struck his head,

she could not say that it was a reasonable medical probability.

      Daniel’s theory of negligence as to Redmon was that he was following too

closely behind Gitaitis’s vehicle and was therefore unable to stop in time to avoid

hitting her husband. In support of this theory, Daniel presented evidence that as a

commercial truck driver, Redmon was required to maintain a minimum four-second

following distance between his truck and any other vehicle. Given Redmon’s

statement to police that he was approximately 200 feet behind Gitaitis at the time of

the accident and that he was traveling at between 45 and 50 miles per hour, however,

his following distance behind Gitaitis was only between 2.7 and 3 seconds. And had

Redmon had an additional 1 to 1.3 seconds of reaction time, Daniel argued, he could

have avoided hitting her husband.



                                           5
      To counter this theory of liability, the defense presented evidence in the form

of expert testimony and testimony from members of the accident investigation team

that investigated the events surrounding Danny’s death. Those witnesses stated that

it appeared from the location of the body and other debris that Gitaitis’s car struck

Danny while he was in the middle of the roadway, rather than on the shoulder.

Additionally, as explained more fully below, these witnesses uniformly testified that,

given the circumstances, an increased following distance would not have allowed

Redmon to avoid hitting Danny. Thus, each of the witnesses testified that they did not

view Redmon’s speed or his following distance as a factor in Danny’s death.

      At both the close of the plaintiff’s case and at the close of all evidence,

Redmon and Republic moved for a directed verdict, arguing that Daniel had failed to

prove the causation element of her negligence claim against them. The trial court

denied each of these motions and allowed the case to go to the jury.3 The jury

returned a $1.6 million verdict in favor of Daniel and apportioned liability as follows:

23 percent to Gitaitis, 35 percent to Danny, and 42 percent to Redmon and Republic.

Redmon and Republic then filed a motion for j.n.o.v. After a hearing, the trial court


      3
        Gitaitis also twice-moved for a directed verdict, and the trial court denied
each of those motions.

                                           6
denied that motion. Redmon and Republic now appeal from both the order denying

their motion for j.n.o.v. and the order of judgment.

      To prevail on her negligence claim against Redmon and Republic, Daniel was

required to prove by a preponderance of the evidence that Redmon had a legal duty

to conform to a certain standard of conduct so as to protect others against

unreasonable risks of harm; that Redmon breached this standard; that Daniel suffered

a loss or damages as a result of the Redmon’s alleged breach of his legal duty; and

that there was a legally attributable causal connection between Redmon’s conduct and

the resulting injury. Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d

9) (1990). A “preponderance of the evidence,” in turn, simply requires that the

evidence show a rational factfinder that a particular fact is more likely than not. See

Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (the preponderance

of the evidence “standard requires only that the finder of fact be inclined by the

evidence toward one side or the other”) (citation and punctuation omitted). “[A]nd

to prove causation, the plaintiff must show that the wrongdoing is both a cause in fact

and a proximate cause of the injuries [alleged].” Strength v. Lovett, 311 Ga. App. 35,

40 (2) (a) (714 SE2d 723)(2011). Thus, to prove the causation element of her

negligence claim Daniel was required to introduce evidence which provided the jury

                                          7
with “a reasonable basis for the conclusion that it is more likely than not” that

Redmon’s allegedly negligent conduct “was [both] a cause in fact” and a proximate

cause of her husband’s death. Wolfe v. Carter, 314 Ga. App. 854, 856-857 (1) (726

SE2d 122) (2012) (citation and punctuation omitted). If the evidence presented only

a “mere possibility” that Redmon’s conduct was either a cause in fact or a proximate

cause of Danny’s death such that the question of causation remained “one of pure

speculation or conjecture,” or if the evidence showed that “the probabilities [were]

at best evenly balanced,” then Redmon and Republic were entitled to judgment in

their favor as a matter of law. Id. at 857 (1) (citation and punctuation omitted).

      1. Bearing the foregoing principles in mind, we turn to the claims of error

asserted by Redmon and Republic.

      We begin by addressing Redmon’s and Republic’s claim that Daniel failed to

prove that any alleged negligence by Redmon was a cause in fact of the accident.4 As


      4
        In their second enumeration of error, Redmon and Republic assert that Daniel
“failed to prove her negligence claim” because the evidence showed that the accident
was unavoidable and not the result of any negligence by Daniel. They then argue that
given the unavoidable nature of the accident, Daniel failed to prove that Redmon was
negligent. As explained herein, however, this argument really goes to the issue of
causation, and specifically whether Redmon’s alleged negligence was a cause in fact
of the accident. In her reply brief, Daniel does not address the appellees’ arguments
as to the unavoidable nature of the accident.

                                          8
noted above, Daniel contended that Redmon acted negligently by failing to maintain

at least a four-second following distance behind Gitaitis. She further contended that

this negligence proximately caused her husband’s death because the proper following

distance would have provided Redmon with additional reaction time, thereby

allowing him to avoid Danny’s body as it lay on the exit ramp. The appellants,

however, point to evidence showing that even had Redmon maintained a greater

following distance, he nevertheless would have been unable to avoid running over

Danny. In light of this evidence, Redmon and Republic contend that Daniel failed to

prove that any negligent conduct by Redmon was a cause in fact of her husband’s

death. We agree.5


       5
          In her brief, Daniel argues, without any citation to legal authority, that
Redmon and Republic are precluded from asserting this claim of error because they
did not raise “any issue of Redmon’s negligence” in the court below. However, a
party is free to “contend on appeal that the evidence is insufficient to support a
verdict even if the party failed to move for a directed verdict[, a j.n.o.v.,] or new trial
in the trial court.” Aldworth Co. v. England, 281 Ga. 197, 199 (637 SE2d 198) (2006).
Moreover, a party may challenge the denial of a morion for a directed verdict even
if it does not file a motion for j.n.o.v., and “the essence of a motion for directed
verdict is that there is insufficient evidence as a matter of law for a jury to find for a
party’s opponent.” Id. at 200. Thus, a party who moved for a directed verdict as to a
specific claim will be entitled to judgment as a matter of law on that claim “if she
prevails on her [argument] on appeal that the evidence is insufficient to support the
verdict” as to that claim. Id. at 199. Here, Redmon and Republic twice moved for a
directed verdict on Daniel’s negligence claim. Accordingly, on appeal they are free
to challenge the sufficiency of the evidence as to that claim, even if they did not raise
in the court below the specific arguments set forth on appeal.

                                            9
      As we have explained previously,

      it is axiomatic that the mere fact that an accident happened and [that] the
      plaintiff may have sustained injuries or damages affords no basis for
      recovery against a particular defendant unless the plaintiff carries the
      burden of proof and shows that such accident and damages were caused
      by specific acts of negligence on the part of that defendant.


Cromer v. Hodges, 216 Ga. App. 548, 549 (1) (455 SE2d 94) (1995) (citation and

punctuation omitted; emphasis supplied). Thus, a “plaintiff must introduce evidence

which affords a reasonable basis for the conclusion that it is more likely than not that

the conduct of the defendant was a cause in fact of the result. A mere possibility of

such causation is not enough.” Hunsucker v. Belford, 304 Ga. App. 200, 202-203 (1)

(695 SE2d 405) (2010) (footnote omitted). And where an event would have occurred

even in the absence of the defendant’s negligence, that negligence, as a matter of law,

cannot be a cause infact of the event. Cowart, 287 Ga. at 631 (3) (a); Strength, 311

Ga. App. at 44 (2) (b).

      At trial, the defense presented substantial and unrebutted evidence showing

that Redmon’s alleged negligence in failing to maintain a following distance of four

seconds or more did not cause or contribute to his running over Danny and that

increasing his following distance would not have allowed Redmon to avoid hitting

                                          10
Danny. This evidence included the testimony of Officers Mark Dau and James

Dobbins of the Lawrenceville Police Department accident investigations unit, as well

as Captain Jeff Smith, the head of that unit. Dau was on the team that investigated the

accident at issue, and Dobbins was the lead investigator. Smith was not involved in

the investigation of this particular accident, but Republic hired him to serve as an

expert witness on behalf of both Redmon and the company.

      Smith testified that if Redmon had maintained a four-second following

distance, he would have been between 264 and 293 feet behind Gitaitis. Given the

darkness of the exit ramp, however, Redmon could not have seen anything that was

not illuminated by his headlights. And Redmon’s low-beam headlights would have

illuminated a maximum of 200 feet in front of the garbage truck. In short, no matter

how great the following distance, it would have been impossible for Redmon to see

Danny until he was no more than 200 feet away from him. And all of the evidence

showed that Redmon was approximately 200 feet away when he saw Danny’s

airborne body after the first impact and that he immediately took evasive action, to

no avail.6

      6
       Both Dau and Dobbins testified that by taking the evasive action of braking
and swerving to the left, Redmon had exercised the best and only option available to
him under the circumstances.

                                          11
      Moreover, as Smith explained, if Redmon’s following distance were changed,

his entire perspective of the scene on the exit ramp would also have been changed.

With a greater following distance, Redmon would not have been in a position to see

Danny coming off of Gitaitis’s vehicle.7 Under such circumstances, in which Redmon

had no way to know of Danny’s presence in the road, Redmon would have been

coming upon a dark-clad body lying in the middle of the roadway. Thus, a greater

following distance would have made it impossible for Redmon to know of Danny’s

presence in the roadway until it was too late to take evasive action. It was Smith’s

opinion, therefore, that Redmon’s running over Danny was unavoidable, even if you

increased the following distance.

      Dau provided similar testimony, explaining that following distance plays a

significant role in accidents that occur during daylight hours, when motorists can see

      7
          The evidence showed a significant possibility that a greater following
distance would have resulted in Redmon still being on Highway 316, rather than on
the exit ramp, at the time of the initial impacts. Smith testified that Danny’s body was
located 200 feet up the exit ramp. The evidence showed that the body most likely
remained where it landed after coming off of Gitaitis’s car and at the same location
where Redmon ran over it. There was no evidence showing that Redmon’s truck had
dragged the body any distance. Additionally, Redmon had just exited Highway 316
and was at the bottom of the exit ramp when he witnessed Danny come off the right
side of Gitaitis’s car. Thus, had Redmon been following at a distance greater than 200
feet, he may not have been present on the exit ramp at the time of the first and second
impacts and would not have had the opportunity even to attempt evasive action.

                                          12
a significant distance down the road and are not limited by the illumination provided

by their headlights. In night time accidents such as this one, however, following

distance plays less of a role because a driver can only react to that which he sees, and

vision at night is more limited. Thus, Dau reiterated that unless Redmon’s following

distance put him in a position to see Danny coming off of Gitaitis’s vehicle, he could

not react at all to Danny’s presence in the road. As Dau explained, it would have been

significantly more difficult for Redmon to perceive a dark-clad body lying in the

middle of the roadway than to see that same body while airborne. And Redmon would

have been unable to see Danny’s body until he got within 200 feet of it, too late to

allow him to avoid running Danny over. Accordingly, Dau was also of the opinion

that under the circumstances of the case, Redmon could not have avoided hitting

Danny.

      Dobbins’s testimony reenforced that of Smith and Dau, as he testified that the

police did not view following distance as a factor in the accident. Instead, the

conclusion of the accident investigation team was that the impact between Redmon

and Danny could not have been avoided.

      Notably, none of this testimony was refuted. Although Daniel elicited

testimony from Dau that the greater the following distance, the more time a driver

                                          13
would have to react, that testimony assumed that the driver could see that which he

was reacting to – i.e., the presence of Danny in the roadway. Daniel presented no

testimony, however, that under the circumstances of this case an increased following

distance would have allowed Redmon to avoid running over Danny. Rather, all of the

testimony addressing the conditions present during this particular accident showed

that Redmon’s collision with Danny was unavoidable. Accordingly, the evidence did

not provide the jury with a reasonable basis for concluding that any negligence by

Redmon was a cause in fact of Danny’s death. “A plaintiff must introduce evidence

which affords a reasonable basis for the conclusion that it is more likely than not that

the conduct of the defendant was a cause in fact of the result. A mere possibility of

such causation is not enough.” Post Properties v. Doe, 230 Ga. App. 34, 39 (495

SE2d 573) (1997) (citations and punctuation omitted).

      We recognize that questions of causation are normally for the jury. See Walker

v. Giles, 276 Ga. App. 632, 639 (1) (624 SE2d 191) (2005). Nevertheless, there must

be sufficient evidence to create a jury question on the issue of causation. See Reeves

v. Mahathre, 328 Ga. App. 546, 550 (759 SE2d 926) (2014). Thus, the defendant will

be entitled to judgment as a matter of law where “the record is devoid of any evidence

that [the defendant’s negligence] was a cause in fact of” the plaintiff’s injury. Jackson

                                           14
v. Wal-Mart Stores, 206 Ga. App. 165, 167 (424 SE2d 845, 847) (1992). See also

Cowart, 287 Ga. at 636 (3) (d). Here, the undisputed evidence showed that it was

more likely than not that the accident between Redmon and Danny would have

occurred even in the absence of any negligence by Redmon. Accordingly, Redmon’s

conduct cannot, as a matter of law, be a cause of that accident. See Cowart, 287 Ga.

at 636 (3) (d) (defendant in a wrongful death action was entitled to summary

judgment where doctor testified that he could not say if decedent would have

survived absent the defendant’s negligence); Hunsucker, 304 Ga. App. at 202 (1)

(defendant entitled to summary judgment where evidence showed only that defendant

was driving “within the alleged speed limit on a familiar road at night in mist and,

after cresting a hill, could not avoid a black-clothed pedestrian stepping into his

lane”). We therefore find that the trial court erred in denying Redmon’s and

Republic’s motions for a directed verdict and their motion for j.n.o.v.

      2. Redmon and Republic also assert that Daniel failed to prove proximate cause

of her negligence claim. Specifically, they assert that to prove that Redmon’s alleged

negligence was a proximate cause of Danny’s death, Daniel was required to prove

that her husband had survived his collisions with Gitaitis’s car and the pavement and

that he was alive when the garbage truck ran over him. Redmon and Republic argue

                                         15
that Daniel failed to meet this burden because she failed to come forward with any

expert medical testimony which would have allowed the jury to conclude that Danny

had survived the first two impacts. See Cowart, 287 Ga. at 626-627 (2) (a) (plaintiff

must prove causation by expert testimony “where the existence of a causal link

between the defendant’s conduct and the plaintiff’s injury cannot be determined from

common knowledge and experience and instead requires the assistance of experts

with specialized medical knowledge”). In light of our holding in Division 1, however,

we need not address this claim of error.

      For the reasons set forth above, we reverse the judgment of the trial court.

      Judgment reversed. Andrews, P. J., and Miller, J., concur.




                                           16
