Atlanta Affordable Housing Fund v. Brown

• Decision Date: 15 January 2002
• Docket Number: No. A01A1768.,A01A1768.
• Citation: 558 S.E.2d 827,253 Ga. App. 286
• Parties: ATLANTA AFFORDABLE HOUSING FUND LIMITED PARTNERSHIP et al. v. BROWN et al.
• Court: Georgia Court of Appeals

558 S.E.2d 827

253 Ga. App. 286

ATLANTA AFFORDABLE HOUSING FUND LIMITED PARTNERSHIP et al. v. BROWN et al.

No. A01A1768.

Court of Appeals of Georgia.

January 15, 2002.

Lord, Bissell & Brook, Corliss S. Lawson, Devlin & Robinson, Earnest Redwine, Atlanta, for appellants.

Stuart B. Houck, Sheryl L. Burke, Rosser A. Malone, Atlanta, for appellees. ELDRIDGE, Judge.

Atlanta Affordable Housing Fund Limited Partnership and Ledic Management Group, Inc. appeal from a jury verdict and judgment for Shaatia J'Nai Brown, a nine-year-old, brought by her mother Tascena Jennings, individually and as her natural guardian, for injuries that the minor received when struck by a truck in the Park Place apartment complex where she lived. Brown was enrolled in an academic enrichment after-school program, "Make a Difference," sponsored in the complex by the defendants. At the time of her injury, she was taking out the trash for the program and ran from behind a van parked in a no-parking zone into the path of a truck, which struck her. The defendants contend that the trial court erred in not granting summary judgment, directed verdict, or judgment notwithstanding the verdict and in failing to charge on assumption of risk for this nine-year-old. Further, the defendants contend that there existed no premises liability or duty to supervise Brown. We do not agree and affirm the judgment.

1. The defendants in separate enumerations of error contend that the trial court erred in failing to grant summary judgment, directed verdict, or j.n.o.v. and in failing to charge on assumption of risk.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that [she,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff's part.... The knowledge requirement does not refer to a plaintiff's comprehension of general, non-specific risks that might be associated with such conditions or activities. As stated by Dean Prosser: In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given [her] consent to relieve the defendant of an obligation of conduct toward [her], and to take [her] chances of injury from a known risk arising from what the defendant is to do or leave undone.

(Citations and punctuation omitted; emphasis in original and supplied.) Vaughn v. Pleasent, 266 Ga. 862, 864(1), 471 S.E.2d 866 (1996); see also Hillman v. Carlton Co., 240 Ga.App. 432, 434(1), 522 S.E.2d 681 (1999).

"[A]ctual, subjective knowledge of the specific [danger of an approaching truck] and fully appreciat[ing] its danger" constitute the first element of assumption of the risk defense. Hillman v. Carlton Co., supra at 433-434(1), 522 S.E.2d 681. Thus, a generalized risk may be assumed, i.e., not stopping and looking both ways before crossing a street or driveway. But for the defense of assumption of the risk to apply in this case, there must be a particularized and subjective awareness of the actual danger of the approaching truck as well, which is the subjective risk assumed of racing against the truck's approach. Id. at 434, 522 S.E.2d 681; see also Vaughn v. Pleasent, supra at 865(2), 471 S.E.2d 866; Gen. Manufactured Housing v. Murray, 233 Ga.App. 382, 384(1), 504 S.E.2d 220 (1998); Trustees of Trinity College v. Ferris, 228 Ga.App. 476, 479(3), 491 S.E.2d 909 (1997); Sutton v. Sumner, 224 Ga.App. 857, 859-860, 482 S.E.2d 486 (1997).

While the defendants proved that the nine-year-old plaintiff was generally aware of the risk of crossing streets or driveways and being hit by moving vehicles and the need to stop and look, there existed no evidence that the child saw or was aware of the approach of the specific truck that hit her when she darted out across the driveway, because a van parked in a no-parking area of the complex blocked her view of the approaching truck, and she had seen her friend just ahead of her safely race across the driveway without incident. Plaintiff knew generally that there was a danger in crossing without looking where vehicles drove. However, the presence or absence of moving vehicles in the driveway was a constantly changing situation so that specific knowledge of the condition could not pre-exist without specific subjective observation at any given time to determine the presence or absence of danger. Thus, the child had no subjective knowledge of the danger from the approaching truck that hit her; therefore, the first element of the defense of assumption of the risk was not proved. It was proper to deny motions for summary judgment, directed verdict, and j.n.o.v.

In contrast to the facts of this case, Goodman v. City of Smyrna, 230 Ga.App. 630, 497 S.E.2d 372 (1998), dealt with a specific static condition of a known danger posed by a downhill street grade to a curve in the street without a guardrail and a steep drop-off to a creek, which the 11-year-old knew of generally and subjectively both prior to and during her fleeing on skates down the street toward the open and obvious static danger. In contrast in this case, the nine-year-old never saw the truck that hit her so that she never had a subjective knowledge of the actual danger to assume such risk. Thus, the facts of this case failed to establish the first element of the defense of assumption of the risk. See Vaughn v. Pleasent, supra at 864, 471 S.E.2d 866.

The trial court properly refused to give a jury instruction that was not authorized by the evidence. See Stinson v. Allstate Ins. Co., 212 Ga.App. 179, 182(2)(a), 441 S.E.2d 453 (1994).

2. The defendants contend that the trial court erred in denying its motions for directed verdict, j.n.o.v., and new trial based on the plaintiff's conduct being the sole proximate cause of her injuries.

"The question of proximate cause is one for the jury except in palpable, clear, and indisputable cases." (Citation and punctuation omitted.) Woodbury v. Whitmire, 246 Ga. 349, 350(1), 271 S.E.2d 491 (1980).

[P]roximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent. The best use that can be made of the authorities on proximate cause is merely to furnish illustrations of situations which judicious men upon careful consideration have adjudged to be on one side of the line or the other. Thus, whether proximate cause exists in a given case is a mixed question of law and fact. It requires both fact-finding in the "what happened" sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury upon appropriate instructions from the judge. The decision may be made by the trial judge or appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of "foreseeability") to the facts. In other words, although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases.

(Citations and punctuation omitted.) Atlanta Obstetrics &c. Group, v. Coleman, 260 Ga. 569-570, 398 S.E.2d 16 (1990); see also Bailey v. Jim's Minit Market, 242 Ga.App. 518, 519, 529 S.E.2d 436 (2000).

[Plaintiff at nine years] come[s] within the age category of minors whose failure to exercise due care is for decision by a jury. There is no presumption of law that a child between the ages of seven and fourteen did or did not exercise due care, or does or does not have sufficient capacity to recognize danger or to observe due care. As was well said by Judge Bell in ... controlling authority: "It seems clear from the Georgia cases that the question of capacity or lack of capacity to be contributorily negligent in the case of children between the ages of seven and fourteen is a subjective one which necessarily depends in each situation upon the particular child's mental and physical capacity. Thus, there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care. Since the question of capacity is an individual one in each of the cases involving children between seven and fourteen years of age, the jury must first find that the particular child had the capacity required and then must decide whether or not the child exercised it.... The better rule would be for the jury to deal with each case upon its own facts, unhampered by presumptions of law either for or against the competency of the child."

(Citations and punctuation omitted.) Jackson v. Young, 125 Ga.App. 342, 343-344(2), 187 S.E.2d 564 (1972); see also Goodman v. City of Smyrna, supra at 632, 497 S.E.2d 372.

A child of tender years may not be under the duty of exercising ordinary care as defined in the Civil Code, but [she] is charged with the duty of exercising such care as [her] capacity, mental and physical, fits [her] for exercising, this capacity to be judged by the jury from the circumstances surrounding the transaction under investigation, and the child's conduct in reference thereto. Necessarily it was for the jury to determine in the present case what due care required of the plaintiff, a child [nine] years of age, at the time of the injury, and if they should find that [she] was of the age capable of

...