¶1dissenting.
¶2I respectfully dissent. Although I agree with the majority that the charge was erroneous, I do not agree that the error was harmless. Additionally, I disagree with portions of the majority’s analysis.
¶3As the majority correctly points out, the standard of proof required to establish that an injury resulted from a defendant’s negligence is a preponderance of the evidence. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 708 (2) (505 SE2d 232) (1998). “Preponderance of [the] evidence means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” (Punctuation omitted.) Id. See also OCGA § 24-1-1 (5).
¶4As the majority also correctly concludes, the court erred in charging the jury that the plaintiff was required to show “within a reasonable degree of medical certainty that the injury was the result of the defendant’s negligence.” It is improper to charge in a civil case that proof must establish the contention to a certainty. See, e.g., Masonic Relief Assn. v. Hicks, 47 Ga. App. 499, 500 (3) (171 SE 215) (1933); Youmans v. Moore, 11 Ga. App. 66 (2) (74 SE 710) (1912). In this connection, OCGA § 24-4-4 sets forth guidelines for determining where preponderance of evidence lies.
¶5I agree with the majority that to the extent that Johnson v. Cooper, 234 Ga. App. 753, 756 (2) (507 SE2d 559) (1998), and Royal v. Davis Hauling Co., 164 Ga. App. 409, 410 (2) (297 SE2d 333) (1982), indicate that causation must be proved with certainty, the charges at issue were incorrect.
¶6Despite my agreement with the majority’s position that the charge was erroneous, I am troubled by the majority’s indiscriminate treatment of medical malpractice and ordinary negligence cases. Although, as the majority notes, the court in Estate of Patterson v. Fulton-DeKalb Hosp. Auth. discussed the standard of preponderance of the evidence, that case was one for medical malpractice. In that context, this court stated that “reasonable medical probability” has no greater meaning than a preponderance of the evidence. Nonetheless, it is important to note that the issue in Patterson was whether the medical testimony of plaintiff’s medical expert was sufficient evidence of causation to withstand the motion for summary judgment. The question at issue in Patterson as to whether the plaintiff’s expert’s assertion was legally sufficient to establish causation differs from the question before us in this ordinary negligence case. For this reason, the majority’s reliance on various medical malpractice cases appears misplaced.
¶7The trial court’s erroneous charge incorrectly stated Herr’s burden of proving damages and was harmful. See generally Marek Interior Systems v. White, 230 Ga. App. 518, 521 (3) (496 SE2d 749) (1998). “Where the material issues are close, under the evidence, such erroneous instruction requires a new trial.” Youmans, 11 Ga. App. at 66 (2). Here, the majority concedes that the damages were “hotly contested,” primarily because the parties disputed whether a preexisting jaw problem necessitated Herr’s extensive dental work. Moreover, the majority notes that Withers’ experts vigorously disputed Herr’s claim that the accident caused his oral problems with proof that he had preexisting bite abnormalities. Those experts also testified that trauma did not cause the facial weakness. The jury’s verdict was about $3,000 less than Herr’s special damages. In light of the conflicting evidence regarding Herr’s damages in this case, we cannot conclude that the significantly erroneous charge on the burden of proving those damages was harmless. The charge was fundamental to Herr’s case, and accordingly, the error therein was harmful.
¶8I am authorized to state that Presiding Judge Beasley and Judge Ruffin join in this dissent.
¶9 Nevertheless, the arguments raised by the appellants in Johnsonand Royaldid not address the burden of proof, and thus this court did not directly address this issue. Thus, I do not think that it is necessary to disapprove or overrule the cases.