Bruce v. Georgia-Pacific, LLC.

• Decision Date: 27 March 2014
• Docket Number: Nos. A13A1874,A13A1806.,s. A13A1874
• Citation: 326 Ga.App. 595,757 S.E.2d 192
• Court: Georgia Court of Appeals
• Parties: BRUCE v. GEORGIA–PACIFIC, LLC. Georgia–Pacific, LLC v. Lincoln General Insurance Company et al.

326 Ga.App. 595

757 S.E.2d 192

BRUCE

v.GEORGIA–PACIFIC, LLC.

Georgia–Pacific, LLC

v.Lincoln General Insurance Company et al.

Nos. A13A1874, A13A1806.

Court of Appeals of Georgia.

March 27, 2014.

Carlock, Copeland & Stair, Charles M. McDaniel, Jr., for Lincoln General et al.

Steward, Seay & Felton, L. Chris, Stewart, for Bruce.

BRANCH, Judge.

Malcolm Bruce was injured when he fell off a loaded truck owned by his employer, Annett Holdings, Inc. d/b/a TMC Transportation (“TMC”), at a facility in Monticello, Georgia, owned and operated by Georgia–Pacific, LLC. On appeal from a grant of summary judgment to Georgia–Pacific in Bruce's personal injury suit, Bruce argues in Case No. A13A1874 that questions of material fact remain as to both Georgia–Pacific's negligence and Bruce's contributory negligence. On appeal from a grant of summary judgment to TMC and its insurer, Lincoln General Insurance Company, in Georgia–Pacific's third-party action, Georgia–Pacific argues in Case No. A13A1806 that TMC and Lincoln have a duty to defend Georgia–Pacific as to Bruce's claims. We find no error and affirm in both cases.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga.App. 554, 555, 588 S.E.2d 441 (2003). A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga.App. 11, 12, 530 S.E.2d 477 (2000).

Case No. A13A1874

Construed in favor of Bruce, the record shows that on October 15, 2007, Bruce, a TMC employee, drove one of the company's flatbed tractor-trailers to Georgia–Pacific's Monticello plant to pick up a load of wood paneling. Bruce had been a commercial truck driver for more than 20 years, and had been driving flatbed trailers, a job which often required him to cover and secure loads, for at least six months. Bruce himself testified that an entirely flat surface on top of a load was “very rare,” and that every load was uneven “to some extent.”

While Bruce waited in a break room, a Georgia–Pacific employee loaded the trailer with a variety of paneling, resulting in an uneven surface on the top of the load. After the Georgia–Pacific employee had finished loading the trailer, Bruce, who was responsible for inspecting, covering, and securing the load, climbed onto the trailer and began covering it with Visqueen, a translucent plastic sheeting supplied in 4–foot rolls by Georgia–Pacific for the purpose of protecting wood products from moisture. According to Bruce, Georgia–Pacific required its contractor truckers to apply Visqueen, and Bruce had previously and successfully wrapped a load with Visqueen at the same Georgia–Pacific facility. Georgia–Pacific's own employees were forbidden to climb on or secure loaded trailers.

From his position on top of the load, Bruce unrolled, cut and unfolded the Visqueen, crawling along the top of the load as he did so, leaving a foot or two uncovered at the front and the rear to stand on. Bruce got down from the front, completed wrapping the sides of the load with Visqueen, and tied down the corners. Bruce then began covering the load with the first of two tarpaulins, one from the back toward the front and the second, overlapping the first, from the front toward the back. He crawled across the back of the load on his hands and knees unrolling the 4–foot–wide first tarp, which was still folded, until its edge was lying a few feet past the middle of the load. Bruce then got up off his hands and knees and was bending over in the process of unfolding and throwing a portion of the first tarp over the edge of the load when he stepped into a space within the load, lost his balance, and fell off the trailer. The Georgia–Pacific forklift operator who had loaded the trailer and who responded to Bruce's fall testified that as he lay on the ground, Bruce exclaimed that he “[couldn't] believe [that he] did this,” that he had “been driving a truck for 20–something years,” and that he “[couldn't] believe [that he was] that stupid” as to fall off his own trailer. Treatment of Bruce's injuries required him to be airlifted to a hospital.

On February 9, 2009, Bruce filed his first complaint against Georgia–Pacific, which Bruce voluntarily dismissed in December of the same year. On March 17, 2010, Bruce filed this renewal action. In June 2011, Georgia–Pacific moved for summary judgment, which the trial court granted after a hearing. This appeal followed.

1. Bruce first argues that the trial court erred when it granted summary judgment to Georgia–Pacific because the company had not implemented Occupational Safety and Health Administration (OSHA) regulations requiring fall protection for workers applying Visqueen to trailers in or next to a building. We disagree.

A cause of action for negligence requires

(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.

Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982).

On appeal, plaintiff has cited only his OSHA expert's deposition, at which the expert cited 29 CFR §§ 1910.132(d) and 1926.501,¹ as supporting a conclusion that Georgia–Pacific was obligated to provide fall protections to Bruce. Plaintiffs argue both that the regulations themselves are evidence of a legal duty owed to him by Georgia–Pacific and that Georgia–Pacific's failure to enforce these OSHA regulations gives rise to a cause of action for breach of that duty undertaken for the benefit of the injured person. See, e.g., Dupree v. Keller Industries, 199 Ga.App. 138, 141(1), 404 S.E.2d 291 (1991), citing OCGA § 51–1–6 (an injured party may recover for a breach of duty if he suffers damage thereby and if the duty is imposed by law for the benefit of the injured person).

As a preliminary matter, the OSHA regulations cited by plaintiff as giving rise to a legal duty on Georgia–Pacific's part do not provide that the owner of a truck loading dock like the one at issue here is obligated to provide fall protections to any person working on a trailer there. 29 § CFR 1910.132(d) sets out only a general standard that an employer “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment,” and that if such hazards exist, the employer shall select and have the employee use personal protection equipment. Such general admonitions cannot overcome evidence introduced by Georgia–Pacific showing that as OSHA itself interprets 29 CFR § 1926.500 et seq., “walking-working surfaces” requiring fall protection devices do not include tractor-trailers. According to OSHA, “fall protection is not required for employees who are on vehicles and trailers when,” as here, “the employee must be on the vehicle or trailer to perform his or her duties,” in which case “there is typically no feasible means of providing fall protection.” See Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 664 S.E.2d 223 (2008) (courts should defer to an administrative agency's “interpretation of statutes it is charged with enforcing or administering and the agency's interpretation of rules and regulations it has enacted to fulfill the function given it by the legislative branch”); Upper Chattahoochee Riverkeeper, Inc. v. Forsyth Cty., 318 Ga.App. 499, 502, 734 S.E.2d 242 (2012) (“the interpretation of a statute or regulation is a question of law”). Likewise, fall protections described in 29 CFR § 1926.501, which on their face apply to “construction,” do not apply here because the loading of a tractor-trailer does not involve construction. See Cleveland Elec. Illuminating Co. v. OSHA Review Comm., 910 F.2d 1333, 1336(II) (6th Cir. 1990) (“an operation will be considered ‘construction’ [for purposes of OSHA] only if the work is performed on, or in close proximity to, [a] constructionsite”) (citation and punctuation omitted).

More fundamentally, and as we held in Dupree, the relevance of OSHA regulations “in a particular case ... depend[s] on the relationship of the parties.” 199 Ga.App. at 141(1), 404 S.E.2d 291. Specifically, OSHA imposes a duty of care only “between an employer and its employees,” and “[i]f a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence.” Id. at 141–142(1), 404 S.E.2d 291, citing 29 USC § 651 et seq.² Georgia courts have thus concluded that a company cannot be held liable for a violation of OSHA regulations unless it is bound to enforce such regulations for the safety of its own employees. In Boyd v. Packaging Corp. of America, 292 Ga.App. 281, 664 S.E.2d 277 (2008), for example, this Court held that because an injured construction worker was the employee of an independent contractor, neither the crane operator involved in moving the heavy steel plates that injured the worker nor the crane operator's employer owed any duty of care to the injured worker. Id. at 283(1), 664 S.E.2d 277.

Given the undisputed evidence in this case that Georgia–Pacific's employees were forbidden to climb on or secure loaded trailers, Georgia–Pacific had no obligation to provide protection for falls from such trailers to its own workers at the Monticello facility. It follows that it owed no such duty to employees of other companies working at that facility. See Boyd, 292 Ga.App. at 283(1), 664 S.E.2d 277 (affirming grant of summary judgment to owner of paper mill where accident occurred); Dupree, 199 Ga.App. at 142(1), 404 S.E.2d 291 (OSHA regulations did not establish any common-law...