Cooper Tire & Rubber Co. v. Merritt

Decision Date01 December 2004
Docket Number No. A04A0811, No. A04A0812.
Citation271 Ga. App. 16,608 S.E.2d 714
PartiesCOOPER TIRE & RUBBER COMPANY v. MERRITT; and vice versa.
CourtGeorgia Court of Appeals


Philip Savrin, Sun Choy, Freeman, Mathis & Gary, Atlanta, for Appellant.

Kermit Dorough, Divine & Dorough, Albany, Jesse Bowles, Bowles & Bowles, Cuthbert, for Appellee.

MIKELL, Judge.

D.K. Merritt, an employee of Georgia Electric Company ("Georgia Electric") who worked at Cooper Tire and Rubber Company's manufacturing plant ("Cooper Tire") pursuant to an independent contractor agreement between Cooper Tire & Georgia Electric, was injured when a transformer fell on his left arm. Merritt sued Cooper Tire, alleging that it was liable for failing to keep the premises safe and vicariously liable for Georgia Electric's failure to maintain its equipment as required by Occupational Health and Safety Administration ("OSHA") regulations. The jury awarded Merritt $90,000 for medical expenses; $150,000 for past lost wages; $250,000 for future lost wages; and $750,000 in general damages. In Case No. A04A0811, Cooper Tire appeals the trial court's denial of its motions for judgment notwithstanding the verdict, to amend judgment, and for new trial. For reasons that follow, we reverse.1

In reviewing the denial of both a motion for a directed verdict and a motion for j.n.o.v., this Court must construe the evidence in the light most favorable to the prevailing party and determine whether there is any evidence to support the jury's verdict.2 Viewed in this light, the evidence shows that in August 1996, Merritt was employed by Georgia Electric as a millwright. Georgia Electric maintains a long-term independent contractor relationship with Cooper Tire; a Georgia Electric maintenance and construction crew has been present at Cooper Tire's Albany, Dougherty County plant since 1990, performing installation and maintenance on the plant's electric systems pursuant to a purchase order that is renewed annually. The purchase order provides, in pertinent part, that, "[i]n the performance of work under any Contract, the contractor agrees to comply with all applicable Federal, State, or local laws, rules, regulations, or ordinances.... [C]ontractor agrees to strictly comply with the OSHA Hazard Communications Regulations." The contract further provides that, "[Georgia Electric's] services to Cooper [Tire] will be in the form of an independent contractor."

Merritt was injured on August 25, 1996, while the construction crew was using two Georgia Electric forklifts to raise and install a new transformer. As Merritt crawled underneath the transformer to remove wooden crating material, the parking brake of Georgia Electric's Caterpillar forklift failed and the forklift jumped backward, dropping the transformer. Merritt's left arm was crushed by the falling transformer.

With respect to the forklift in question, a Caterpillar T-125D, the following evidence was adduced at trial. Georgia Electric purchased the used forklift specifically for use at Cooper Tire's plant. The forklift was delivered to the plant on January 6, 1996. George Capps, a former employee of Georgia Electric's forklift maintenance crew, testified that he was not required to keep daily checklists on Georgia Electric's forklifts as required by OSHA,3 but that he checked the brakes on the subject forklift when it first arrived at the plant. After that initial inspection, however, Capps never checked, fixed, or repaired the parking brake on the forklift. Cooper Tire did not monitor Georgia Electric's maintenance of its industrial trucks, including its forklifts, or verify whether Georgia Electric was in compliance with OSHA regulations. Gene Ritchie, Cooper Tire's plant engineer, testified that he never observed or requested copies of a daily checklist generated by Georgia Electric for the subject forklift from January 1996, until Merritt's injury. Ritchie confirmed that Cooper Tire routinely collects daily forklift checklists from its employees, and that a forklift without an emergency brake could be dangerous depending on its use. Merritt's evidence showed that the forklift did not have an operable emergency brake. According to a fact witness who inspected the subject forklift, the caliper was "contaminated with grease" and the general condition of the brake pad was "[b]orderline to bad." This witness further testified that after he repaired the forklift and tested it, the forklift did not move.

Merritt filed this action against Cooper Tire alleging a failure to exercise ordinary care to keep the premises safe as required by OCGA § 51-3-1 and vicarious liability for the negligence of Georgia Electric pursuant to OCGA § 51-2-5(4).4 Cooper Tire moved for summary judgment, arguing that Merritt's claims were not viable. The trial court denied the motion but certified its order for immediate review. This Court denied Cooper Tire's application for interlocutory review and the case was tried before a jury. At the close of Merritt's evidence, Cooper Tire moved for a directed verdict on both claims, which the trial court denied. As noted above, the jury returned a verdict in favor of Merritt and the trial court entered judgment in Merritt's favor for $ 1,240,000. Cooper Tire then moved for j.n.o.v., a new trial, and to amend judgment, which the trial court denied. Cooper Tire appeals.

1. In two enumerations of error, Cooper Tire argues that the trial court erred in denying its motions for j.n.o.v., a new trial, and to amend judgment for three reasons: (1) Cooper Tire has no common law duty to safeguard Georgia Electric's employees; (2) the evidence does not support a claim under OCGA § 51-3-1 or § 51-2-5(4); and (3) it is immune from tort liability under the exclusive remedy provisions of the Workers' Compensation Act, OCGA § 34-9-1 et seq. We agree with Cooper Tire that the evidence does not support a claim under OCGA § 51-3-1 or § 51-2-5(4) and, therefore, reverse the trial court's judgment.

(a) Relying on Murphy v. Blue Bird Body Co.,5 Cooper Tire argues that Merritt's claim under OCGA § 51-3-1 fails because it does not involve a defective condition in the premises. In Murphy, the plaintiff, an employee of an independent contractor, was injured on the defendant's premises while using the defendant's forklift. The trial court granted summary judgment to the defendant, and the plaintiff appealed, arguing that the defendant breached its duty to plaintiff to keep the premises safe. We rejected this argument, reasoning that (1) there was no evidence that the premises were unsafe, and (2) the forklift "was not a part of the premises or a fixture thereto."6 In the case at bar, as in Murphy, the forklift was not a part of the premises. Moreover, premises liability cases cited by the dissent for the proposition that Cooper Tire owed Merritt a duty to inspect and maintain the forklift are inapposite. In Johnson v. Clark,7 for example, a concrete safety pole that should have been bolted to the ground fell on a painting contractor's employee, and issues of fact existed as to the property owner's knowledge of the dangerous condition. In Towles v. Cox,8 an employee of a dry cleaning store was injured when she opened the back door of the store and a jackhammer, which had been propped against the back wall by a plumber's employee, fell against her leg.

Salient facts distinguish Johnson and Towles from the case sub judice. First, the allegedly dangerous instrumentality, the forklift, was owned and operated by Merritt's employer, Georgia Electric, and not by Cooper Tire. Moreover, the evidence shows that it had a hidden defect. In Towles, the injury occurred because the jackhammer was placed in an unexpected location, not because it malfunctioned or was negligently maintained.

Under OCGA § 51-3-1, an owner or occupier is liable to invitees for "failure to exercise ordinary care in keeping the premises... safe."9 However, "a property owner is not an insurer of the safety of its invitees. The mere showing of the occurrence of an injury does not create a presumption of negligence."10 Rather, the true basis of an owner's liability is the owner's superior knowledge of the defect or hazard.11 In this case, Merritt presented no evidence that Cooper Tire had actual or constructive knowledge of a defect in the forklift.12

To agree with the dissent would change and expand the holding in Towles and would overrule by implication our decision in Murphy. Imposing premises liability on Cooper Tire in the case at bar would create a precedent requiring the owners or occupiers of land to maintain, and to inspect for hidden defects, all vehicles, and perhaps all tools, by whomever owned, which happen to be found on the premises. We are not willing to make such a drastic change to existing law.

(b) At trial, Merritt claimed that Cooper Tire was liable for Georgia Electric's violation of OSHA under OCGA § 51-2-5(4). In a pretrial order, the trial court ruled that

[t]he applicable OSHA regulations are not admissible for the purpose of establishing that [Cooper Tire] has a direct duty or standard of care to plaintiff either to maintain [or] service ... Georgia Electric's forklifts or to safeguard against injuries resulting from improper or defective maintenance because [Merritt] was not at the time of injury an "employee" of [Cooper Tire].

(Emphasis in original.)

The trial court further ruled that

[Cooper Tire] is statutorily liable under OCGA § 51-2-5(4) if ... the evidence shows that ... Georgia Electric was negligent and the wrongful act of its contractor is a violation of a duty imposed by statute. Therefore, the applicable OSHA regulations are relevant and admissible to establish what Georgia Electric's duty of care was to [Merritt]. If the evidence establishes a violation of that standard, the violation ... [is] imputed to [Cooper Tire] under OCGA § 51-2-5(4).

(Emphasis in original.) Cooper Tire contends that...

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