BROWNING-FERRIS INDUSTRIES v. Pitts

• Decision Date: 08 July 1999
• Docket Number: No. A99A0443.,A99A0443.
• Citation: 239 Ga. App. 26,520 S.E.2d 539
• Parties: BROWNING-FERRIS INDUSTRIES OF GEORGIA, INC. v. PITTS.
• Court: Georgia Court of Appeals

520 S.E.2d 539

239 Ga. App. 26

BROWNING-FERRIS INDUSTRIES OF GEORGIA, INC. v.PITTS.

No. A99A0443.

Court of Appeals of Georgia.

July 8, 1999.

Mark D. Oldenburg, Peachtree City, for appellant.

Joan P. Davis, Marietta, for appellee.

McMURRAY, Presiding Judge.

Marjorie Pitts was severely injured after her car struck a residential trash container that rolled into her oncoming car's traffic lane.This appeal followed entry of a favorable judgment for Pitts on a $200,000 jury verdict against the City of Canton's ("the City") waste management contractor, Browning-Ferris Industries of Georgia, Inc.("BFI").We affirm because the evidence authorizes the jury's verdict.

The evidence adduced at trial, construed so as to uphold the jury's verdict (Flournoy v. Brown,226 Ga.App. 857, 861(4), 487 S.E.2d 683), reveals that BFI owned the trash container in question and assigned it for use (weekly curbside garbage pickups) at a residence adjacent to the collision scene; that the occupant of this residence placed the trash container in or near the roadway upon vacating the premises two weeks before the collision, and that this container obstructed traffic until the collision.The evidence also reveals that BFI employees serviced (emptied or checked) the trash container on two separate occasions before Pitts' collision; that the container was "just over the [road's] white line" a few hours before the collision, and that a truck swerved to avoid this hazard moments before Pitts' car hit the container.Eyewitness testimony reveals that this truck's maneuver somehow caused BFI's wheel-equipped garbage can to roll directly into the path of Pitts' car, and that road conditions at the time of the collision provided Pitts no safe opportunity for avoiding the hazard.Held:

BFI contends the trial court erred in denying its motions for directed verdict, arguing that the undisputed evidence shows that the occupant of the residence where the subject trash container was assigned was obliged to look after the container and was, therefore, solely responsible for the hazard which caused Pitts' collision.

The threshold question of BFI's legal duty toward Pitts cannot be assigned according to BFI's or the City's agreement with the occupant of the residence where the subject trash can was assigned."The legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm."Bradley Center v. Wessner,250 Ga. 199, 201, 296 S.E.2d 693.The requisite inquiry is therefore whether, under the particular circumstances in the case sub judice, Pitts' injuries can be fairly attributed to BFI's conduct.That is, do the facts authorize the jury's finding that BFI unreasonably exposed Pitts to a foreseeable risk of harm?SeeEllington v. Tolar Constr. Co.,237 Ga. 235, 237-238, 227 S.E.2d 336.To this issue, we observe testimony indicating that BFI instructed its employees to watch out for and remove any BFI trash container they found in the roadway during their regular garbage collection activities and that BFI employees serviced the trash container in question (and presumably observed it in the roadway) two days before the collision, but that they did not then remove the hazard from the road.This evidence, and proof that BFI employees were or should have been aware that the subject trash can was in the roadway and obstructing traffic two days before the collision, authorizes the jury's finding that BFI breached a common law duty to remove a foreseeable hazard from the roadway and that this failing was a proximate cause of Pitts' damages.SeeHousing Auth. of Atlanta v. Famble,170 Ga.App. 509, 511, 317 S.E.2d 853.BFI's argument that any negligence on its part was too remote to be a proximate cause of Pitts' collision was a matter which was properly left for jury resolution.Seeid.Questions of negligence, contributory negligence, and proximate cause are, except in plain, palpable and indisputable cases, for the jury.Duncan & Stancil, Inc. v. Peden,159 Ga.App. 77, 79, 282 S.E.2d 708.

The trial court did not err in denying BFI's motions for directed verdict.

Judgment affirmed.

POPE, P.J., SMITH, RUFFIN and ELDRIDGE, JJ., concur.

JOHNSON, C.J., and ANDREWS, P.J., dissent.

ANDREWS, Presiding Judge, dissenting.

Because I do not believe any alleged negligent act of Browning-Ferris Industries (BFI) was the legal causation of the accident in which Pitts was injured, I must respectfully dissent.

The only allegation of a negligent act against Browning-Ferris was that its employees "failed to place the refuse containers out of the roadway."

In addition to the facts set out by the majority, the following facts, viewed with all inferences in favor of Pitts, the opponent of the motion for directed verdict, are important to consideration of this matter.BFI picked up refuse for residents of the City of Canton pursuant to a contract between it and the city, and residents paid the city for their trash service directly.While trash containers marked with the BFI logo were provided to residents, this was done only when requested by the city.If a resident moved, unless notified to pick up the can by the city, BFI left the trash can for the incoming resident.

Reinhardt Parkway, where the wreck occurred, was a two-lane road, twenty-four feet wide, making each lane approximately twelve feet wide.The road was fairly busy, particularly during rush hours.BFI's weekly route on Reinhardt Parkway was run on Wednesday mornings, usually between 10:30 a.m. and 11:00 a.m.It was the homeowner's responsibility to have their trash container at curbside for this...