BOGGS, Judge.
Quintez Brown and Kimberly Little, individually, and as legal guardian and natural parent of her four minor children, filed personal injury actions against DeKalb County ("the County") and others as a result of a collision involving a DeKalb County fire truck. On appeal, they contend that the trial court erred by granting summary judgment in favor of the County. For the reasons explained below, we disagree and affirm.
"On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165, 695 S.E.2d 31 (2010); see OCGA § 9-11-56(c).
So viewed, the evidence shows that on May 3, 2011, Brown was driving a car in which Little and her three children were passengers when it collided with a DeKalb County Fire Department truck. Brown and Little testified that they never saw or heard the fire truck before the collision. The driver of the fire truck never saw Brown's car before the collision, while two fire truck passengers saw it just before the impact and had no time to give a warning.
The testimony conflicts as to whether the car driven by Brown struck the fire truck as Brown entered the intersection with a green light or whether the fire truck struck Brown as it entered the intersection against a red light. Brown and Little claim the fire truck struck them, while all other witnesses stated that the car driven by Brown struck the fire truck. Little testified that the car was at a standstill immediately before the impact, while Brown testified that he had just started to proceed when the fire truck struck his car. According to the driver and two passengers of the fire truck, the fire truck entered the intersection with its lights and siren activated when all traffic was stopped and the intersection was clear. An accident reconstruction expert averred in an affidavit that, based upon data retrieved from Brown's car, it traveled at a constant speed of 29 mph for 213 feet without any braking immediately prior to impact.
It is undisputed that at the time of the accident, the fire truck was responding to an emergency call and was blowing an air horn at the time it entered the intersection. Two firefighters averred in an affidavit that the flashing red emergency lights on the fire truck "were visible from a much greater distance than 500 feet" at the time of the accident. Witnesses disagreed about how hard it was raining at the time of the accident. Brown and Little both testified that it was "pouring down raining," while the fire truck driver testified that it was "slightly raining."
Brown and Little contend on appeal that a jury should be allowed to decide the following issues: (1) "whether it was reasonable for the emergency vehicle to have entered the intersection when the light was red when there was a torrential rain at the time of the collision"; (2) "whether the DeKalb County fire truck entered the intersection with their audible signal and flashing red lights"; and (3) whether the "fire truck was authorized to enter[] the intersection when the light was red based upon the exception provided under Code section OCGA § 40-6-6." We disagree.
We start our analysis with a well-established principle: "That an accident occurred and a plaintiff suffered injury establishes no basis for recovery unless the plaintiff comes forward with evidence showing that the accident was caused by the defendant's negligence." (Citations and punctuation omitted.) Morton v. Horace Mann Ins. Co., 282 Ga.App. 734, 736(1), 639 S.E.2d 352 (2006). In order to examine whether appellants presented evidence that the driver of the fire truck was negligent, we must examine the following provisions of OCGA § 40-6-6:
The direct evidence before the trial court shows that the fire truck was responding to an emergency call while using an audible signal and flashing red emergency lights visible from a distance of 500 feet at the time of the accident. Brown and Little assert that their testimony that it was "pouring down raining" and that they failed to see or hear the fire truck before the collision creates genuine issues of material fact regarding whether the privilege afforded by OCGA § 40-6-6 could be exercised. Again, we disagree.
(Citation and punctuation omitted.) Brown v. GeorgiaCarry.Org, Inc., 331 Ga.App. 890, 894, 770 S.E.2d 56 (2015). The fact that Brown and Little did not see or hear the fire truck before the collision and that it was raining provides circumstantial evidence to support an inference that the fire truck may
Little's testimony that the fire truck was traveling 60 to 70 mph at the time of impact also fails to create a genuine issue of material fact as to negligence on the part of the County. Lay opinion lacking a proper foundation cannot be considered when ruling upon a summary judgment motion. Jordan v. Atlanta Replex Corp., 228 Ga.App. 670, 674(a), 492 S.E.2d 536 (1997) (physical precedent only). OCGA § 24-7-701(a)(1) provides that a lay "witness's testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are [][r]ationally based on the perception of the witness." Here, Little's testimony that the car was traveling 60 to 70 mph could not be rationally based on her perception of how the impact felt. She acknowledged that she had never before been hit by a car traveling at that speed and that she was not an expert in accident reconstruction.
In a case decided under Ga.Code § 38-1708, recodified in 1980 as OCGA § 24-9-65,
While lay opinion testimony about the speed of a vehicle is generally "quintessential Rule 701 opinion testimony," Asplundh Mfg. Div. v. Benton Harbor Eng., 57 F.3d 1190, 1197(II)(A) (3rd Cir.1995), superseded on other grounds, Estate of Knoster, 200 Fed. Appx. 106, 111 n. 3 (3rd Cir.2006), such testimony is nonetheless "inadmissible absent an adequate factual foundation demonstrating a rational link between the witness' observations and her ultimate testimonial conclusions." Felton v. Felton, 1999 WL 381814, at *2-3(II), 1999 U.S.App. LEXIS 12081 at *7(II) (4th Cir.1999). Here, no rational link exists between Little's perception of the force of the impact and her testimony about a particular speed for a fire truck that she never saw in motion.
Based upon the direct evidence that the fire truck was authorized under OCGA § 40-6-6 to enter the intersection against the red light and the absence of any evidence showing negligence on the part of the fire truck operator, we affirm the trial court's grant of summary judgment to the County.
Judgment affirmed.
DOYLE, C.J. and PHIPPS, P.J., concur.