Uncovering Rational Methods
“The elimination of negligence per se in Georgia was apparently intended,” Brodhead said Wednesday after the court denied his motion for reconsideration of McFadden’s ruling. “Under the express terms of this opinion, negligence per se is rebutted by showing that the violation of the statute was ‘unintentional.’ It is right there in black and white on page 7.” Brodhead was referring to McFadden’s statement that, in order to “rebut the presumption” of negligence, the driver who caused the crash was required to present evidence that “any violation of a state statute was unintentional.” McFadden continued on page 8 to say the defendant 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.” Judge Elizabeth Branch, who has since moved up to the U.S. Court of Appeals for the Eleventh Circuit, and Judge Charlie Bethel, joined in McFadden’s nine-page opinion. Brodhead filed a 20-page motion for reconsideration Monday, working with appellate counsel Michael Terry of Bondurant Mixson & Elmore. Laurie Webb Daniel of Holland & Knight, the lawyer on the winning side of the appeal, said Wednesday that she had prepared a response but had not yet filed it when the court denied Brodhead’s motion. “I think his motion lacks merit,” Daniel said Wednesday. “In my opinion, he should not burden the court system with this any further.” Brodhead said he will appeal to the Georgia Supreme Court. “This is a major change in the law,” he said. “Negligence cases, by definition, allege unintentional conduct—no one is even trying to show the conduct is intentional,” Brodhead said. “There is no qualifying language. There is no explanation that limits this opinion to the facts of this case. There is no contradictory Supreme Court case. It is now the controlling law in Georgia that negligence per se for violating a statute is rebutted by showing that the violation was ‘unintentional.’ Under this opinion, if there is even ‘slight evidence’ that the violation was ‘unintentional’ and the trial court fails to give this instruction, the jury verdict must be reversed.” In the opening paragraph of the March 15 opinion, McFadden wrote, “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.” McFadden said the trial judge, “whether requested or not,” must give the jury appropriate instructions “on every substantial and vital issue presented by the evidence, and on every theory of the case.” What became known as the $30 million hand verdict was delivered during a trial before Fulton County State Court Judge Eric Richardson in 2016.
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