Game Truck Georgia, LLC v. Salvador Reyes Quezada ( 2021 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and COLVIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 8, 2021
In the Court of Appeals of Georgia
A21A0439. GAME TRUCK GEORGIA, LLC v. SALVADOR
REYES QUEZADA.
COLVIN, Judge.
Salvador Reyes Quezada (“Reyes”) sued Game Truck Georgia, LLC, for
negligence after he sustained injuries in a game of bubble soccer. After a trial, the
jury awarded Reyes five million dollars in damages.1 On appeal from the trial court’s
denial of its motion for new trial, Game Truck Georgia argues that the trial court erred
by (1) failing to charge the jury on assumption of the risk, (2) refusing to allow the
jury to consider the fault of nonparties, (3) allowing Reyes’s expert to provide
opinions on irrelevant Georgia law, and (4) denying a new trial on the damages award
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The jury apportioned fault, finding Reyes 7 percent responsible for his own
injuries and Game Truck Georgia 93 percent responsible. In its entry of final
judgment, the trial court accordingly adjusted the jury’s damages award to
$4,650,000.
as excessive in light of the evidence. For the following reasons, we reverse the trial
court’s judgment and remand for a new trial.
The record shows that Reyes was a senior on Campbell High School’s soccer
team in 2016. To celebrate the end of the soccer season, the school’s soccer coach
organized a bubble soccer match for the soccer teams. Game Truck Georgia provided
the bubble soccer equipment and facilitated the bubble soccer matches, where
participants would play soccer while wearing large, inflatable bubble suits.
Employees of Game Truck Georgia provided a briefing to prior to the start of
the bubble soccer event, where the participants were informed of the rules of bubble
soccer. Prior to the start of each match, Game Truck Georgia employees assisted the
participants with putting on the bubble suits correctly and reminded them of
important safety rules. Reyes was late to the event, so he missed the initial safety
briefing. Reyes testified that he observed participants in earlier matches running into
each other with the bubble suits on, and that no Game Truck Georgia employee
warned him of any safety precaution prior to his bubble soccer match. In fact, Reyes
testified that he felt safe in the bubble suit and had no indication that bubble soccer
could be dangerous.
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At the start of Reyes’s bubble soccer match, he ran fast toward another
participating student. When Reyes collided with the student, he fell to the ground and
was injured. The soccer coach called for an ambulance when he noticed excessive
bleeding from Reyes’s nose and swelling on his forehead. At the hospitals, doctors
determined that he had multiple bone fractures in his forehead and brain damage to
his frontal lobe. As a result of his injuries, Reyes required surgery to implant a
prosthetic plate in his head. After surgery, Reyes continued to experience cognitive
impairment and a permanent loss of taste and smell.
During a pretrial hearing, the trial court ruled on two motions in limine. In
granting the first motion, the trial court excluded Game Truck Georgia’s liability
release form from evidence. Arguing against this motion in limine, Game Truck
Georgia asserted that the release form was relevant to its theory of nonparty fault as
to the school district, the school, and a school employee. The trial court found that the
release form would not be relevant because Game Truck Georgia had not included its
theory of nonparty fault in the pretrial order.
The trial court denied a second motion in limine in which Game Truck Georgia
argued for the exclusion of opinions from Reyes’s expert in operational safety for
recreational sporting equipment on regulations and standards that govern amusement
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rides but not for activities like bubble soccer. The trial court denied this motion, and
at trial, the expert opined that Game Truck Georgia failed to provide specific safety
instructions and warnings to participants and failed to enforce rules by stopping
unsafe behavior.
At the conclusion of trial, the trial court charged the jury but did not include
an instruction on assumption of the risk, even though such a charge was requested by
Game Truck Georgia. Although the charge conference was not taken down, Game
Truck Georgia objected to the lack of charge for assumption of the risk and the trial
court noted its refusal to give the requested charge for the record.
1. Game Truck Georgia argues that the trial court erred by refusing to give a
jury charge on assumption of the risk. 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.” (Citation and punctuation omitted.)
Almassud v. Mezquital, 345 Ga. App. 456, 458 (1) (811 SE2d 110) (2018). “There
need be only slight evidence supporting the theory of the charge to authorize a
requested jury instruction.” (Citation omitted.) Daly v. Berryhill, 308 Ga. 831, 833
(843 SE2d 870) (2020). “It is also necessary to decide whether the law given in the
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disputed charge was adequately explained by other portions of the trial court’s
instruction.” Golden Peanut Co. v. Bass, 249 Ga. App. 224, 227 (1) (547 SE2d 637)
(2001). “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.” (Citations omitted.) Almassud, 345 Ga. App. at 458
(1).
The affirmative defense of assumption of the risk bars a plaintiff from
recovering on a negligence claim if it is established that he, without
coercion of circumstances, chooses a course of action with full
knowledge of its danger and while exercising a free choice as to whether
to engage in the act or not. A defendant asserting an assumption of the
risk defense must establish that the plaintiff (1) had actual knowledge of
the danger; (2) understood and appreciated the risks associated with
such danger; and (3) voluntarily exposed himself to those risks.
Knowledge of the risk means that the plaintiff has both actual and
subjective knowledge of the specific, particular risk of harm associated
with the activity or condition that proximately causes injury.
(Citations and punctuation omitted.) Daly, 308 Ga. at 834.
Prior to trial, Game Truck Georgia requested that the trial court charge the jury
with the pattern jury instruction for assumption of the risk:
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When a person knowingly and voluntarily takes a risk of physical injury,
the danger of which is so obvious that the act of taking such risk, in and
of itself, amounts to a failure to exercise ordinary care for one’s own
safety, that person cannot hold another liable for injuries proximately
caused by such action even though the injuries may be in part
attributable to the negligence of the other person.
Georgia Suggested Pattern Jury Instructions 60.130.
Reyes does not dispute that the pattern charge for assumption of the risk
contains an accurate statement of the law. Despite Game Truck Georgia’s assertion
of the defense of assumption of the risk in the pretrial order, Reyes argues that the
charge was not warranted because it is not supported by the evidence presented at
trial. Nonetheless, an examination of the record reveals that there was at least slight
evidence that Reyes had knowledge of the risk he was undertaking by charging at
another player during the bubble soccer game.
At trial, Game Truck Georgia elicited testimony that Reyes had played soccer
since a young age, that he was familiar with its rules, that he understood that bubble
soccer would be played according to the basic rules of soccer, and that the rules of
soccer prohibit players from head-butting or rushing at other players who do not have
the ball. There was also some evidence that a Game Truck Georgia employee
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instructed Reyes not to engage in horseplay or to charge at other players prior to the
bubble soccer match. Moreover, Reyes admitted to purposely running directly toward
another student at the start of the bubble soccer game. Given this slight evidence, the
trial court should have instructed the jury on assumption of the risk. See Daly, 308
Ga. at 834; Almassud, 345 Ga. App. at 458-459 (1).
Of course, “we view the charge as a whole in determining whether it contained
error[,]” and it “is not error where the charges actually given substantially cover the
principles contained in the request.” (Footnotes omitted.) Collins & Assoc. v. Henry
County Water & Sewerage Auth., 290 Ga. App. 782, 785 (4) (661 SE2d 568) (2008).
Accordingly, Reyes argues that any error was harmless since the trial court’s charge
as a whole reflected an accurate statement of the law and included an instruction for
duty to use ordinary care for one’s safety:
Every person has a duty to use ordinary care for his or her own safety.
If you should determine from the evidence that the plaintiff failed to use
ordinary care, and that the failure was the sole proximate cause of the
plaintiff’s injuries, then the plaintiff could not recover from the
defendant.
Georgia Suggested Pattern Jury Instructions 60.110. Although similar to the
requested charge on assumption of the risk, the pattern charge on duty to use ordinary
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care for one’s safety omits the knowledge and voluntary exposure elements
highlighted in the pattern charge of assumption of the risk. Therefore, the charge as
given is not a complete statement of the appropriate law that makes up Game Truck
Georgia’s defense on the substantial and vital issue of assumption of the risk. See
Golden Peanut Co., 249 Ga. App. at 229-230 (1) (reversible error where trial court
gave part, but not all, of pattern jury charge on defense of accord and satisfaction).
“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.” (Citations and punctuation omitted.)
Almassud, 345 Ga. App. at 460 (1). Thus, we must grant a new trial because the trial
court’s failure to give the requested charge on assumption of the risk “deprived
[Game Truck Georgia] of defenses fairly raised by the evidence.” Golden Peanut Co.,
249 Ga. App. at 230-231 (1).
2. Game Truck Georgia argues that the trial court erred by denying the addition
of potentially at-fault nonparties to the verdict form under Georgia’s apportionment
statute. We disagree.
The trial court’s ruling in question was made contemporaneously with a ruling
on a motion in limine to exclude evidence concerning Game Truck Georgia’s release
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form. Arguing against the exclusion of such evidence, Game Truck Georgia asserted
that the release form was relevant to its theory of nonparty fault. Game Truck Georgia
also explained to the trial court that it was entitled to have the jury consider the issue
of nonparty fault because it filed a proper notice of fault. The trial court ruled that
“[t]here’s certainly nothing whatsoever contained within the [p]retrial [o]rder that
indicates . . . that there’s any issue concerning apportionment of fault. So I will grant
the [m]otion in [l]imine.” Game Truck Georgia made no objection following the
ruling on the motion in limine and no objection appears in the record as to the form
of the verdict.2 Accordingly, Game Truck Georgia has not preserved this error for
appeal. See Auto-Owners Insurance Co. v. Dolan, 342 Ga. App. 179, 182 (2) (803
SE2d 104) (2017) (“In the absence of such specific and timely objections, a party
waives error relating to the manner in which questions on a special verdict form are
submitted to the jury”) (citation and punctuation omitted; emphasis supplied),
reversed on other grounds by Williams v. Harvey, __ Ga. __ (1) (b) (Case No.
S20G1121, decided May 17, 2021).
2
The verdict form submitted to the jury contained a section for the
apportionment of fault between Game Truck Georgia and Reyes only.
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Even assuming that Game Truck Georgia made a specific and timely objection
as to the inclusion of the nonparties on the verdict form, Game Truck Georgia has not
shown that the trial court erred by refusing to let the jury consider nonparty fault.
Two years prior to trial, Game Truck Georgia filed three notices of potential
nonparty fault, identifying the Cobb County Board of Education, Campbell High
School, a school employee, and the student with whom Reyes collided. The student’s
status as a nonparty was not put before the trial court. Instead, Game Truck Georgia
argued only for the jury’s consideration of the school-related nonparties based upon
the fact that the nonparties failed to distribute Game Truck Georgia’s release forms
to the students participating in bubble soccer. Had they done so, Game Truck Georgia
argues, Reyes would have been informed of the risk of physical injury associated with
playing bubble soccer. But Game Truck Georgia has not challenged on appeal the
trial court’s grant of the motion in limine excluding evidence relating to the release
forms. Under these circumstances, when the exclusion of evidence related to the
release forms has not been challenged on appeal, and when Game Truck Georgia
bases its theory of fault for the school-related nonparties on the excluded evidence,
there is no “competent evidence that the nonpart[ies] in fact contributed to the alleged
injury or damages.” Southwestern Emergency Physicians, P.C. v Quinney, 347 Ga.
10App. 410, 427 (4) (819 SE2d 696) (2018). Accordingly, Game Truck Georgia has not
properly preserved its argument as to the jury’s consideration of nonparties.
3. Game Truck Georgia also argues that the trial court erred by allowing
Reyes’s expert witness to provide opinions based upon Georgia’s Rules and
Regulations of Amusement Rides and Devices and American Society of Testing
Materials (“ASTM”) standards for amusement ride because bubble soccer is not
governed by those regulations and standards. At trial, Reyes’s expert on operational
safety for recreation sporting equipment testified that he reviewed Georgia’s Rules
and Regulations of Amusement Rides and Devices and ASTM standards as part of
his research on the rules of bubble soccer. The expert explained that, although he
reviewed those materials, he did not ultimately rely upon them in forming the
opinions to which he testified. Under these facts, we find no abuse of discretion in
admitting this testimony. See Layfield v. Dept. of Transp., 280 Ga. 848, 851 (1) (632
SE2d 135) (2006) (an expert’s opinion based upon inadequate knowledge “does not
mandate the exclusion of the opinion but, rather, presents a jury question as to the
weight which should be assigned the opinion”) (citations and punctuation omitted);
Cleveland v. Sentinel Ins. Co., 354 Ga. App. 795, 796-797 (1) (840 SE2d 738) (2020)
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(reviewing a trial court’s ruling on the exclusion of expert opinion for abuse of
discretion).
4. Given our finding in Division 1, we need not discuss whether the award for
damages was so excessive in light of the evidence that a new trial was warranted on
this issue.
Judgment reversed and case remanded. Dillard, P. J., and Mercier, J., concur.
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