                            THIRD DIVISION
                             MILLER, P. J.,
                       MCFADDEN and MCMILLIAN, 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


                                                                        July 8, 2016




In the Court of Appeals of Georgia
 A16A0168. ELDER v. HAYES.

      MCMILLIAN, Judge.

      We granted Herman Elder’s motion for interlocutory appeal of the trial court’s

order denying his motion for summary judgment in this action arising out of a fatal

automobile collision. The wreck occurred when Wendell Hardigree’s truck rear-ended

Tiffany Hayes’s sedan, causing it to spin and hit Elder’s SUV. Hayes and two other

occupants of her car (collectively referred to herein as the “Plaintiffs”) sued Elder for

negligence, and Elder argued in his motion for summary judgment that there was no

evidence that his negligence, if any, proximately caused the Plaintiffs’ injuries. We

reverse the trial court’s denial of Elder’s motion for the reasons set forth below.

      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). We
  review a grant or denial of summary judgment de novo and construe the evidence in

  the light most favorable to the nonmovant. Home Builders Assn. of Savannah v.

  Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

          So viewed, the evidence shows that the accident in this case occurred on July

  7, 2010 on Georgia Highway 10 near Athens.1 At that location, Georgia Highway 10

  is a four-lane divided highway with a 65-mph speed limit. Hayes was driving

  northbound in the outer, right-hand lane, with her mother’s boyfriend seated next to

  her in the front passenger seat; her mother, Gloria Watkins, seated behind her in the

  left rear passenger seat; and her 23-month-old son Tobias sitting in a baby seat

  located in the right rear passenger seat. Tobias was strapped into the baby seat, but

  Georgia State Patrol (“GSP”) investigators later determined that the baby seat was not

  properly secured to the car.2



      1
        We note that in their briefs in the trial court and on appeal, the Plaintiffs cited to
allegations in their unverified complaint to support certain of their factual statements
without also providing a record citation demonstrating that the cited allegation had been
admitted by Elder. We take this opportunity to remind counsel that “unsworn allegations
in pleadings that have not been admitted by the opposing party are not evidence for
purposes of summary judgment resolution.” (Citation and punctuation omitted.) Sirdah v.
N. Springs Assoc., LLLP, 304 Ga. App. 348, 352 (3) (696 SE2d 391) (2010).
      2
       Hardigree also testified that when he went to Hayes’s car after the accident, he
observed that the baby seat was not strapped to the car.

                                              2
      At the pertinent time, Hardigree was driving a truck pulling a trailer and was

traveling directly behind Hayes. An ambulance responding to an emergency call

approached in the inner, left-hand lane with its lights flashing and siren sounding.

Elder had just entered the highway from an on-ramp and was merging into the outer

lane behind Hardigree when he saw and heard the ambulance coming. After the

ambulance passed him, Elder pulled into the inner lane behind it to pass Hardigree’s

vehicle.

      Meanwhile, Hayes heard the ambulance and braked to a stop. A factual issue

exists as to whether she pulled completely onto the shoulder before stopping or

whether at least a portion of her car remained in the lane of travel. Hardigree, still

following Hayes, saw her vehicle stop and tried unsuccessfully to pull to the right to

avoid hitting her car. Unable to stop or maneuver around Hayes’s sedan, he crashed

into the rear of the car (the “First Collision”). This collision crushed the back of the

sedan and pushed the trunk partially inside the rear passenger compartment.

      As Elder passed Hardigree in the inner lane, he saw that Hayes’s car was

slowing or stopped and realized that Hardigree was going to hit it. Elder steered into

the median to avoid involvement in the crash, but when Hardigree hit Hayes, the

impact of that collision pushed her car forward and spun it across the left, inner lane

                                           3
  of traffic and into Elder’s SUV (the “Second Collision”). Hayes’s car came to a rest

  in the median.

          The driver of the ambulance turned back to render aid. Hayes had a cut on her

  head. Watkins suffered a broken pelvis, a bruise to her aortic valve, and other injuries,

  which she said led to complications in her kidneys and which required one to two

  months of hospitalization. Tobias sustained multiple skull fractures and, tragically,

  died later that day at an Atlanta hospital.3

          After conducting an investigation, the GSP’s Specialized Collision

  Reconstruction Team (“SCRT”) concluded in a written report that the accident was

  caused by Hardigree following too closely behind Hayes (“SCRT Report”) without

  assigning any fault to Hayes or Elder.

          Hayes, Watkins, Tobias (through Hayes as his next friend), and Tobias’s estate

  sued Hardigree4 and Elder for personal injury and wrongful death. The Plaintiffs

  assert that Elder’s “decision to closely trail the ambulance and not to move over and



      3
        The record indicates that Watkins’s boyfriend was also injured and transported to
the hospital, but he is not a party to this litigation. Elder and Hardigree apparently were not
seriously injured.
      4
        The claims against Hardigree were dismissed by consent judgment, but those
against Elder remain pending.

                                              4
stop or slow down for the ambulance constituted negligence and resulted in his

vehicle crashing into Tiffany Hayes’ vehicle.” The Plaintiffs also claim that Elder was

negligent per se in committing a number of traffic violations, i.e., failing to yield to

an emergency vehicle, following too closely, reckless driving, driving too fast for

conditions, failure to exercise due care in the operation of a vehicle, and homicide by

vehicle. Elder moved for summary judgment, arguing that there was no evidence that

any negligence on his part — assuming any negligence existed — proximately

caused the Plaintiffs’ injuries. The trial court denied the motion, finding that genuine

issues of material fact remained on the issue of proximate cause, but the court

certified its order for immediate review.

      Causation is but one of four elements required to establish a claim of

negligence in Georgia. “In order to have a viable negligence action, a plaintiff must

satisfy the elements of the tort, namely, the existence of a duty on the part of the

defendant, a breach of that duty, causation of the alleged injury, and damages

resulting from the alleged breach of the duty.” (Citation and punctuation omitted.)

Diamond v. Dept. of Transp., 326 Ga. App. 189, 193 (2) (756 SE2d 277) (2014).

However, “[s]ummary judgment is appropriate if there is a lack of evidence as to any

one essential element of a party’s claim or affirmative defense. If one essential

                                            5
element cannot be proven, all of the other disputes of fact are rendered immaterial.”

(Citations and punctuation omitted; emphasis in original.) Great Southwest Express

Co., Inc. v. Great American Ins. Co. of New York, 292 Ga. App. 757, 760 (1) (665

SE2d 878) (2008).

      Here, the Plaintiffs put forth two theories of causation. The first theory asserts

that Elder followed the ambulance too closely, preventing Hardigree from moving to

the left to avoid crashing into Hayes, thus proximately causing the First Collision.

The Plaintiffs’ second theory of proximate cause posits that when “Hardigree’s truck

struck . . . Hayes’s stopped vehicle[,] it pushed it from its stopped position into the

path of . . . Elder’s SUV that was closely trailing the ambulance, with the impact from

. . . Elder’s vehicle causing or contributing to the injuries and death complained of in

the Plaintiffs’ Complaint.”

      Although questions of causation are generally for the jury, “[n]evertheless,

there must be sufficient evidence to create a jury question on the issue of causation.”

Redmon v. Daniel, 335 Ga. App. 159, 166 (1) (779 SE2d 778) (2015). Proof of

proximate cause requires a showing of “a legally attributable causal connection

between the defendant’s conduct and the alleged injury.” (Citation and punctuation

omitted.) Grinold v. Farist, 284 Ga. App. 120, 121 (1) (643 SE2d 253) (2007).

                                           6
  Therefore, “[t]he 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.” (Citation and punctuation omitted.) Id. However, “[a]

  mere possibility of such causation is not enough; and when the matter remains one

  of pure speculation or conjecture, or the probabilities are at best evenly balanced, it

  becomes the duty of the court to grant summary judgment for the defendant.”

  (Citation omitted.) Id. at 121-22 (1).

          On appeal, Elder asserts that the trial court erred in denying his summary

  judgment motion because (1) the record is void of any evidence that any alleged

  negligent act on his part contributed to the First Collision, and (2) the record contains

  no evidence establishing that his conduct proximately caused any injuries to Watkins

  or Tobias in the Second Collision.

          1. With regard to the first of these arguments, Elder denies that he was

  following the ambulance too closely,5 but he argues that even if he were following

  more closely than the law allows, the record contains no evidence that the location



      5
         Elder testified that the ambulance was “moving away from [him] rapidly” and that
at the time of the collision the ambulance was “long gone” and “quite a ways in front of”
the collision site.

                                             7
of his vehicle prevented Hardigree from moving into the left lane to avoid the

collision.

      Elder testified that he had passed Hardigree’s truck and was “enough in front

of [Hayes’s car] to where [he] could not see the impact, because it occurred behind

[him].” Both Elder and Hardigree testified that Elder had moved over almost into the

median when the First Collision occurred. Elder said that he thought he had cleared

any danger until he felt the impact of the Second Collision. The Plaintiffs assert,

however, that their expert’s testimony and measurements in the SCRT Report raise

an issue as to whether Elder’s car had, in fact, passed Hardigree’s truck or whether

it was close enough to have prevented Hardigree from moving to the left to avoid a

collision with Hayes’s vehicle.

      But Hardigree specifically testified that Elder’s SUV did not obstruct him from

moving left to change lanes and that he never intended to move left. He stated that as

he applied his brakes, they locked, pulling the truck to the right, and he decided to let

his truck go onto the right shoulder, not into the left lane, in an attempt to avoid the

wreck. He explained, “I didn’t have time to go to the left just like I didn’t have time

to stop.” Hardigree further testified:



                                           8
          Q.    Was there any time when Dr. Elder’s white SUV obstructed you
                from going to the left?


          A.    No.


          Q.    It’s my understanding that you didn’t go to the left, because you
                ran out of time? Is that right?


          A.    Yeah, I was going to the right. I was going to go around on the
                shoulder. But I couldn’t get stopped and slowed enough to get off
                the road.


          Q.    The position of his car had nothing to do with your not going left;
                did it?


          A.    No, because he was just about off the pavement when I spun
                [Hayes’s car] around[;] it ran into him.6


          Despite this testimony, the Plaintiffs argue that the evidence of record

  nevertheless raises an inference that the location of Elder’s car somehow influenced

  Hardigree’s decision to move right. In other words, the Plaintiffs argue that the jury

  could reject Hardigree’s explanation for why he moved right and instead speculate



      6
        Hardigree also testified that Elder was just trying to get out of the way and did not
cause either the First or Second Collisions.

                                             9
that he actually chose to move right because Elder’s car was blocking the left lane.

However, “a witness’s uncontradicted testimony [cannot] simply be disbelieved in

order to eliminate the evidence it provides.” Cowart v. Widener, 287 Ga. 622, 633 (3)

(c) (697 SE2d 779) (2010). Rather, on summary judgment,

      what one witness says on a material point [must be] genuinely
      contradicted by some other evidence—what another witness says, a prior
      statement by the witness, or a document or other piece of physical
      evidence. Once the pleadings are pierced with actual evidence, the
      plaintiff must point to admissible evidence showing a genuine issue of
      fact as summary judgment cannot be avoided based on mere speculation
      or conjecture.


(Citation omitted.) Jobling v. Shelton, 334 Ga. App. 483, 488-89 (779 SE2d 705)

(2015). See also Hill v. Jackson, 336 Ga. App. 679, 681 (783 SE2d 719) (2016)

(“Guesses or speculation which raise merely a conjecture or possibility are not

sufficient to create even an inference of fact for consideration on summary

judgment.”) (citation and punctuation omitted).

      Accordingly, because the undisputed evidence shows that neither the location

of Elder’s car nor any actions taken by him caused the First Collision, the trial court

erred in failing to grant summary judgment under the Plaintiffs’ first theory of

proximate cause.

                                          10
          2. Elder next argues that the trial court erred in denying his motion for

  summary judgment on the claims asserted by Watkins, Tobias, and Tobias’s estate

  because the record contains no evidence that Elder’s conduct, as opposed to

  Hardigree’s actions, caused their injuries. Stated another way, he asserts that the

  record contains no evidence demonstrating whether Watkins’s and Tobias’s injuries

  were received in the First Collision or the Second Collision.7

          The record contains no direct evidence of causation with respect to the injuries

  suffered by Watkins and Tobias. Medical records attached to the Plaintiffs’ trial court

  briefing indicate only that their injuries occurred as a result of a motor vehicle

  collision, although the emergency room report shows that Watkins was complaining

  of pain in her left arm and hip and the EMT’s report indicates that “apparently the

  front seat head rest struck [Tobias] in the head.” (Emphasis supplied.) In support of

  the element of causation, the Plaintiffs cite to circumstantial evidence provided by

  their expert accident reconstructionist, licensed professional engineer Craig Depken,


      7
        Although Elder originally also sought summary judgment as to Hayes’s claims for
her own injuries, in his reply brief below, he withdrew the motion as to her claims,
acknowledging that an issue of fact existed as to causation on such claims. We note that
Hayes testified in her deposition that the injury to her head did not occur in the First
Collision. She said that she received that injury when she hit the windshield during the
Second Collision.

                                             11
opining how the accident occurred. Depken did not claim to have any training as a

biomechanical engineer, and he stated that he could not comment on the passengers’

injuries, stating specifically that he did not know which of the two collisions caused

the injuries to Tobias. However, he stated that he could testify about the inertial effect

upon the occupants resulting from each collision. Depken opined that when

Hardigree’s truck collided with Hayes’s car, the impact propelled her sedan into a

forward spin, thrusting its occupants backwards into their seats and breaking the front

seats in the car. The Second Collision with Elder’s SUV, on the other hand, would

have propelled the sedan’s occupants upward and forward, which as the Plaintiffs

argued in the trial court below, “provided the opportunity for the occupants of

[Hayes’s car] to be thrust forward and make contact with some portion of the interior

of the [car].”

      The Plaintiffs assert that the jury could rely on this testimony to determine

which of the collisions resulted in the injuries to Watkins and Tobias. Nevertheless,

even accepting Depken’s evidence that in the First Collision, the occupants were

pushed backward and in the Second Collision, they were pushed upward and forward,

we find that this evidence does not establish that the injuries were more likely to have



                                           12
occurred in the Second Collision than in the First Collision or that the Second

Collision contributed to any of the injuries.

      Watkins suffered a broken pelvis and a bruised aortic valve, injuries that also

apparently affected her kidneys, but the record contains no evidence showing the

location of the impact to Watkins (e.g., whether to Watkins’s front, back, or side) or

demonstrating the kind of impact that could have resulted in her injuries. And we

cannot say that the kind of impact required to create such injuries is within the

common knowledge and experience of the average lay person so that a jury could

determine, without further information, which of the two collisions was more likely

to have caused her injuries. See Cowart, 287 Ga. at 628 (2) (b).

      Further, the evidence showed that Tobias suffered head fractures, possibly

caused by impact with the front headrest, and that Tobias’s car seat was not attached

to the car. Depken testified that the front seat broke during the First Collision. Thus,

it is unclear from the evidence whether Tobias’s head injuries could have occurred

during the First Collision when the seat in front of him broke or whether it was more

likely to have occurred during the Second Collision when the occupants were

projected forward.



                                          13
      In the absence of clear evidence indicating which of the collisions caused, or

was more likely to have caused, the injuries to Tobias or Watkins, we are guided by

this Court’s earlier decision in Berry v. Hamilton, 246 Ga. App. 608 (541 SE2d 428)

(2000). In Berry, a motorcyclist fell off her motorcycle on I-285 and then was run

over by Hamilton, who stopped and called 911. After police arrived but before they

could stop traffic, they saw two other unknown drivers run over the motorcyclist, who

was dead at the scene. Id. at 608. Doctors could not pinpoint which of multiple life-

threatening injuries had killed her, or when. Thus, the doctor could not determine

whether the motorcyclist had died when she fell off her motorcycle or when she was

later run over by several automobiles. Id. at 609-10. In a subsequent suit filed by the

victim’s survivors, this Court affirmed the grant of summary judgment to Hamilton,

holding that there was no evidence that he had proximately caused her death, as it was

also possible that she could have died in the initial fall from the motorcycle. Id. at

610. The Court held that “[w]hen a party is relying on inferences to prove a point, not

only must those inferences tend in some proximate degree to establish the conclusion

sought, but must also render less probable all inconsistent conclusions.” (Citation

omitted.) Id. Thus, “[t]he circumstantial evidence must be sufficient to establish a



                                          14
reasonable inference that [the defendant] caused [the injuries]. If it raises only a mere

conjecture as to how [the injuries occurred], there can be no recovery.” Id.

      Here, the evidence shows only that the Second Collision presented an

“opportunity” for injury, as the Plaintiffs argued below, but the evidence also presents

the possibility that Watkins and Tobias suffered their injuries in the First Collision.

Because the circumstantial evidence of record leaves the jury to conjecture how and

when the injuries to Watkins and Tobias occurred, the trial court erred in denying

Elder’s motion for summary judgment as to their claims. See Redmon, 335 Ga. App.

at 166-67 (1); Dawkins v. Doe, 263 Ga. App. 737, 740 (1) (589 SE2d 303) (2003);

Berry, 246 Ga. App. at 610.

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




                                           15
