Partner Nik Makarenko and Associate Douglas MacKimm win Summary Judgment in Wrongful Death Case

November 23, 2020 – Partner Nik Makarenko and Associate Douglas MacKimm obtained Summary Judgment on behalf of their client in Barrow County Superior Court in a wrongful death claim arising out of a motor vehicle accident.  In March 2017 the Defendant was on his way home from work when the other driver pulled in front of him from a stop sign and they collided.  This was a serious accident and unfortunately the other driver passed away from her injuries.  The Defendant was traveling at or below the posted speed limit in Barrow County on Hog Mountain Road approaching the intersection with Jackson Trail Road when the other driver pulled in front of him from a road to his right.  The other driver had a stop sign that dictated she stop before entering the road the Defendant was travelling on.

The Plaintiff, the husband of the deceased driver, filed this wrongful death suit alleging that Mr. Makarenko’s client was the direct and proximate cause of this accident. Plaintiff contended that the Defendant had driven recklessly, failed to keep a proper lookout, was travelling in excess of the posted speed limit and failed to make a timely application of his brakes.   The Defendant denied these allegations in his testimony and maintained that he was driving below the speed limit, was not on a cell phone, was watching the road ahead and simply did not have time to avoid the other driver when she pulled in front of his vehicle.  Other drivers who witnessed the accident agreed that the deceased driver had not completely stopped at the posted stop sign before entering Hog Mountain Road.  There was no evidence that the Defendant was negligent or did anything to cause or contribute to the accident.

Mr. Makarenko moved for summary judgement on behalf of his client arguing that there was no evidence that his client had in any way caused or contributed to this tragic accident.  Mr. Makarenko argued that in fact it was the failure of the deceased driver to completely stop or yield before crossing in front of the Defendant that caused this accident.  Judge Wayne D. McLocklin of the Superior Court of Barrow County heard oral argument on the motion and later granted summary judgement for the Defendant. Judge McLocklin found that “[a]ll evidence in this case supports the fact that the Defendant was unable to avoid this accident” and that it was the other driver’s actions which “were the sole, direct and proximate cause of this collision.” Accordingly, it was determined that summary judgement was proper.

The case is James Wallace, as next of kin, Tina Wallace v. Oscar Cazarin Fierro.

Superior Court of Barrow County, CAFN: 18-CV-000378-W