FOURTH DIVISION

BARNES, P. J.,

RAY 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

November 18, 2015

In the Court of Appeals of Georgia

A15A1365. AGIC et al. v. METROPOLITAN ATLANTA RAPID

TRANSIT AUTHORITY et al.

RAY, Judge.

Abedina Agic and her parents, Mehmed and Alma Agic, (the “plaintiffs”), filed

a complaint for damages against Metropolitan Atlanta Rapid Transit Authority

(“MARTA”) and one of its bus drivers, Nolan Davis, for injuries that Abedina Agic

(“Agic”) sustained in a motor vehicle collision involving a MARTA bus.

1 Following

a trial, the jury returned a verdict in favor of MARTA and Davis, which was made the

final judgment of the trial court. The plaintiffs appeal from the verdict and judgment,

contending that the trial court erred in excluding evidence regarding a traffic citation

1 Katy Cole wasthe driver of one of the other vehiclesinvolved in the collision

and was named as an additional defendant, but she was voluntarily dismissed from

the action prior to trial. Cole is not a party to this appeal.
that had been issued to Davis in conjunction with the accident. For the reasons that

follow, we reverse.

Although certain aspects of the accident were contested, it was undisputed that

the accidentstarted with a collision between a MARTA bus driven by Davis and a car

driven by Katy Cole, and that the collision occurred while Davis was attempting to

change lanes on North Druid Hills Road. Following this initial collision, Cole’s car

traveled acrossthe roadway into the lanes of oncoming traffic, where it wasstruck by

a sport-utility vehicle driven by Justin Hawkins. Agic, who was a passenger in

Hawkins’ SUV, was seriously injured in the accident. 

After the wreck, the police initially told Davisthat he was “clear to go.” Shortly

after leaving, however, Davis was directed to return to the scene of the accident,

where the police issued him a citation for improper lane change. The citation

indicates on its face that the improper lane change was involved in the accident.

2

Davis ultimately paid the citation online without appearing in traffic court, which

2

 MARTA and Davis argue in their appellate brief that the plaintiffs failed to

make a proffer of the citation to the trial court and, thus, that the citation is not

properly in the record for the purposes of appellate review. However, as noted by the

trial court, a copy of the citation was duly filed in the record below. 

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resulted in a bond forfeiture.3 Furthermore, after an internal investigation by

MARTA, Davis signed a report acknowledging that the accident was “preventable.”

Within MARTA, this meant that Davis was at fault or responsible for the accident. 

Prior to trial, MARTA and Davis filed a motion in limine to exclude any

reference to the citation that had been issued to Davisin connection with the accident,

including the fact that he had paid the fine for the citation. The trial court granted the

motion without stating its findings. 

At trial, Davis’ testimony regarding his actions and the circumstances of the

accident differed from other witness testimony. An eyewitness to the accident

testified that Davis activated his turn signal “for like half a second” and immediately

merged into the right lane of traffic “[w]ithout looking or anything[.]” The eyewitness

further testified that Cole’s car had been traveling in the right lane at the time and that

3 Although MARTA and Davis argue in their appellate brief that there was no

evidence in the record to show that Davis did not appear in traffic court, we note that

defense counsel presented argument to the trial court on the motion in limine that

Davis understood “that he paid a fine and did not have to appear [in traffic court],”

but that he did not realize that his payment of the fine and failure to appear would

result in a bond forfeiture. Thus, counsel implicitly admitted that Davis failed to

appear in traffic court and that Davis forfeited his bond. See 9766, LLC v. Dwarf

House, Inc., 331 Ga. App. 287, 291 (4) (a) (771 SE2d 1) (2015) (“[a]dmissions of

fact, made by a party’s counsel during a hearing or trial, are regarded as admissions

in judicio and are binding on the party”) (citation and punctuation omitted). 

3
the front of Davis’ MARTA bus collided with Cole’s car, causing it to spin in front

of the bus and veer across the roadway into oncoming traffic, where it was struck by

Hawkins’ SUV. Davis, however, testified that he activated histurn signal and looked

in his mirror twice to confirm that the right lane was clear before he attempted to

change lanes. He further testified that he felt a “bump” in the rear of his vehicle, but

that he did not know what it was. He then testified that he looked in his mirror again

and observed Cole’s car behind his bus making a turn into the path of oncoming

traffic, where it was struck by Hawkins’ SUV. 

To bolster his version of events, Davis testified that the police officer told him

during the accident investigation that he was “clear to go.” He even testified that he

asked the police officer if it was good idea to leave because “I didn’t know whether

I was involved or not[,]” and that the officer “demanded that I leave.” Although he

admitted that he signed the internal MARTA report acknowledging that he was at

fault for the “preventable” accident, he endeavored to minimize his acknowledgment

of fault by testifying that “[MARTA] told me it was preventable, so I had to sign the

[report].” Thus, Davis’s testimony was not only inconsistent with eyewitness

testimony, it was inconsistent with him having been issued a citation in connection

with the accident, inconsistent with his acknowledgment of fault in the internal

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MARTA report, and inconsistent with his decision to pay the fine for the improper

lane change citation without appearing in traffic court to contest it.

Before cross-examining Davis, the plaintiffs’ counsel asked the trial court,

outside the presence of the jury, to reconsider itsruling on the motion in limine. After

hearing argument from counsel, the trial upheld its earlier ruling. Consequently, the

plaintiffs were precluded from cross-examining Davis regarding the citation to

establish negligence per se in the violation of a traffic law, as well asfor the purposes

of impeachment. 

In three related enumerations of error, the plaintiffs contend that the trial court

erred in excluding admissible evidence that Davis had made an admission of guilt

regarding the citation for improper lane change by forfeiting his bond. Under the

circumstances presented here, we agree.

1. “Decisions regarding the admissibility of evidence and the scope of

cross-examination fall within the trial court’s discretion. Such decisions will not be

reversed absent a clear abuse of discretion.” (Footnotes omitted.) Eubanks v.

Waldron, 263 Ga. App. 75, 75 (587 SE2d 253) (2003).

We have consistently held that where a party pays a fine on a citation and fails

to appear in court on a citation, the party’s failure to appear is deemed an admission

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of guilt, and this admission may subsequently be used in a civil action for damages

as an admission against interest to establish negligence. See Cannon v. Street, 220

Ga. App. 212, 214 (2) (469 SE2d 343) (1996) (defendant admitted that he committed

the offense alleged in the citation by virtue of his failure to appear in court and by

forfeiting his cash fine); Roberts v. Ledbetter, 218 Ga. App. 860, 860 (1) (463 SE2d

533) (1995) (defendant’s admission that he failed to appear to contest a traffic citation

could be used to establish negligence per se). These rulings are consistent with

OCGA § 40-13-58, which provides that a party cited for a traffic violation who posts

a cash bond and subsequently forfeits the bond by failing to appear has legally pled

guilty. “Under such circumstances, plaintiff has established negligence per se in the

violation of a statute, which is a prima facie showing of negligence.” (Citation and

punctuation omitted.) Roberts, supra.

However, we have also ruled that no such admission occurs when a defendant

simply pays a fine after pleading not guilty on a citation, pleads nolo contendere, or

is adjudicated guilty by a traffic court after pleading not guilty. Waszczak v. City of

Warner Robins, 221 Ga. App. 528, 528-530 (1) (471 SE2d 572) (1996) (no explicit

voluntary admission of guilt shown where defendant pled not guilty to citation and

then posted a cash bond, particularly where there was no evidence to show that

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defendant changed his plea or totally failed to appear in court); Hunter v. Hardnett,

199 Ga. App. 443, 443 (1) (405 SE2d 286) (1991) (“an adjudication of guilt by a

traffic court that the defendant was in violation of a law alleged to be the proximate

cause of the plaintiff’s injuries is inadmissible . . .” because the defendant makes no

admission of guilt under this circumstance) (citations omitted); Reese v. Lyons, 193

Ga. App. 548, 548 (5) (388 SE2d 369) (1989) (evidence of a nolo contendere plea to

a traffic citation is inadmissible since it is not an admission of guilt). Such

circumstances are not present in the instant case.

Here, there is no evidence that Davis entered any plea or took any action with

regard to the citation which would preclude the admissibility of his failure to appear

as an admission against interest. While it is true that simply paying a fine is not, in

and of itself, an admission of guilt, see Waszczak, supra at 529-530 (1), the record in

this case is not limited to the payment of the fine. In the instant case, there was

evidence that Davis signed an internal MARTA report acknowledging that the

accident was preventable and understood this to mean that he was at fault.

Furthermore, Davis “admitted that he [improperly changed lanes] as alleged in the

traffic citation, by failing to appear in court and by forfeiting his . . . bond.” Cannon,

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supra. Accordingly, we find no reasonable basis for excluding evidence of the bond

forfeiture at the trial of this case.

Although MARTA and Davis argue on appeal, as they did below, that Davis

asked one of his daughters to go online and pay the fine for the citation on his behalf,

there is a lack of evidentiary support for this argument. Even if such facts had

evidentiary support, we find no merit in their argument that such payment and the

resulting bond forfeiture should not be construed as an admission against interest on

Davis’ part. Regardless of whether Davis paid the fine personally or had his daughter

do it on his behalf, the evidence is undisputed that Davis was aware of the citation

and that he authorized the payment of the fine. See Burnette v. Brown, 272 Ga. App.

383, 383-384 (2) (612 SE2d 489) (2005) (where defendant was aware that she had

been issued a citation for failure to maintain lane, defendant’s husband paid citation

on defendant’s behalf and later informed her of that fact, and defendant subsequently

failed to appear in court to contest the citation, the resulting bond forfeiture was

admissible as evidence of an admission against interest in a personal injury action

brought against defendant). Compare Howard v. Lay, 259 Ga. App. 391, 391-393 (1)

(577 SE2d 75) (2003) (evidence of bond forfeiture properly excluded where

defendant was unconscious after the accident and did not find out that she had been

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issued a citation or that her husband had paid the fine until long after her court date

had passed).

2. Given our finding that the exclusion of evidence regarding the bond forfeiture

was in error, we must now determine whether the error affected the verdict. The

doctrine of harmless error in civil cases is set forth in OCGA § 9-11-61, which

provides, in relevant part, that

[n]o error in . . . the exclusion of evidence . . . by the court . . . is ground

for granting a new trial or for setting aside a verdict or for vacating,

modifying, or otherwise disturbing a judgment or order, unless refusal

to take such action appears to the court inconsistent with substantial

justice. The court at every stage of the proceeding must disregard any

error or defect in the proceeding which does not affect the substantial

rights of the parties.

There appears to be no explicit standard in our case law for weighing error in

civil cases. Thus, the determination of whether the error affected a party’s “substantial

rights” or whether the failure to correct the error would be “inconsistent with

substantial justice” is often difficult to ascertain. Clearly, “whether an error requires

reversal depends on the nature of the error and the importance of the issue to which

it applies.” (Citation and punctuation omitted.) Phillips v. Harmon, 297 Ga. 386, 392

(I) (B) (744 SE2d 596) (2015).

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In forfeiting his bond, Davis made an admission of guilt to making an improper

lane change. See OCGA § 40-13-58;Cannon, supra.Had this admission been allowed

into evidence, the plaintiffs would have established negligence per se in the violation

of a traffic law and, thus, a prima facie showing of negligence on the part of Davis.

See Roberts, supra. We are unpersuaded by the appellees’ argument that this

admission against interest would have been merely cumulative of Davis’

acknowledgment of fault in the internal MARTA report because Davis was allowed

to provide unfettered testimony to discredit his acknowledgment. We find that the

exclusion of Davis’ bond forfeiture on the citation affected “substantial rights” of the

plaintiffs because it prevented them from impeaching Davis on this important aspect

of the case. Furthermore, as a result of the exclusion of the citation and bond

forfeiture, Davis was allowed to provide testimony that the police officer

investigating the accident had informed him that he was “clear to go,” thereby

creating the impression that Davis had been exonerated by the police.

In sum, the trial court’s exclusion of the evidence relating to Davis’ citation

and bond forfeiture precluded the plaintiffs from establishing negligence per se by

virtue of his admission against interest, and it further deprived them of viable

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opportunitiesto impeach Davis. Accordingly, we find that under the facts of this case

that the verdict cannot stand.

Judgment reversed. Barnes, P. J., and McMillian, J., concur.

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