First Support Services, Inc. v. Trevino

• Decision Date: 16 November 2007
• Docket Number: No. A07A1551.,A07A1551.
• Citation: First Support Services, Inc. v. Trevino, 655 S.E.2d 627, 288 Ga.App. 850 (Ga. App. 2007)
• Parties: FIRST SUPPORT SERVICES, INC. v. TREVINO, et al.
• Court: Georgia Court of Appeals

288 Ga. App. 850

655 S.E.2d 627

288 Ga.App. 850

FIRST SUPPORT SERVICES, INC. v. TREVINO, et al.

No. A07A1551.

Court of Appeals of Georgia.

November 16, 2007.

Reconsideration Denied December 13, 2007.

Hawkins & Parnell, Warner S. Fox, Teresa E. Lazzaroni, Atlanta, for appellant.

Moore & Hawthorne, Marc D. Hawthorne, Wilbur J. Moore, Atlanta, for appellees.

BARNES, Chief Judge.

Francisco and Maria Trevino sued First Support Services, Inc. (FSS) for injuries Mr. Trevino sustained after he fell from a platform he was standing on to service an airplane. The case went to trial and the jury returned a verdict in favor of Mr. Trevino for $1,273,000 and of Mrs. Trevino for $250,000 for loss of consortium. FSS appeals, contending that the trial court erred in denying its motion for directed verdict, that the evidence was not sufficient to support the verdict, and that the jury instructions were improper. Because the trial court erred in denying FSS's motion for a directed verdict on the ground that it was the wrong party, we reverse.

In July 2004, Trevino, who is an aircraft mechanic employed by the Department of Defense, fell from a C-5 aircraft "wing stand," which is a large platform on which the mechanics stand to reach the aircraft they are servicing. The wing stand is positioned as closely as possible to the plane but not directly up against it to protect the delicate fuselage. The final few feet between the wing stand and the plane is spanned by pulling out a retractable platform with a rubber edge that rests against the plane. The platform is held out by pins that drop down through the platform and lock into position. Each time a plane comes or goes, the platform is retracted to leave a gap for the plane to maneuver in or out, and then the platform is pulled back out against the next plane.

On the day he was injured, Trevino set his unopened A-frame ladder on the platform, leaned it against the plane, then climbed up it to reach the area he was going to work on. Suddenly, a section of the platform beneath the ladder retracted and Trevino fell more than thirty feet through the resulting two-foot square gap. He suffered serious injuries, including multiple fractures.

Trevino sued FSS doing business as SKE Support Services (SKE), which had a contract with the United States Air Force to service ground support equipment at Robins Air Force Base. In his initial complaint, Trevino alleged that he fell because the lock pins popped out and that FSS knew the stand had problems with misaligned or missing pins in the wing stand but negligently allowed them to remain in use. In his amended complaint, Trevino alleged that FSS had fabricated and installed defective locking pins, which proximately caused his injury, and was strictly liable for his injuries. He also alleged that FSS was liable in numerous specific ways, including negligent installation, inspection, and training, failure to warn or instruct about the pins, failure to provide safety devices, and breach of implied warranties of merchantability and fitness for a particular purpose.

After Trevino presented his evidence, FSS argued in its motion for a directed verdict that it was not the proper party, because it bought SKE a month after Trevino fell, it was not the same corporation, it did not assume SKE's liabilities, and it did not have the same owners. Additionally, FSS argued that SKE was not strictly liable for Trevino's injuries as a manufacturer, because it did not design the pins, but merely made copies of the pins designed by the Air Force. Finally, FSS argued that Trevino failed to establish that SKE's pins proximately caused him to fall. The trial court denied the motion and the trial proceeded to the jury verdict.

1. On appeal, FSS argues that the trial court erred in denying its motion for a directed verdict on several grounds. A motion for directed verdict can only be granted "[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict." OCGA § 9-11-50(a); Miranda v. Fulton DeKalb Hosp. Auth., 284 Ga.App. 203, 204-205(1), 644 S.E.2d 164 (2007). In considering the motion, the court must view the evidence in the light most favorable to the party opposing the motion. "[T]his approach governs the actions of appellate courts as well as trial courts." (Citation and punctuation omitted.) Church's Fried Chicken v. Lewis, 150 Ga. App. 154, 159(1)(C), 256 S.E.2d 916 (1979). A trial court's decision either to grant or deny a motion for directed verdict will not be disturbed on appeal if there is any evidence to support it. Griffin v. Associated Payphone, 244 Ga.App. 183(1), 534 S.E.2d 540 (2000).

2. Because the issue is dispositive, we first address FSS's contention that Trevino sued the wrong entity. The company asserts that the trial court erred in denying its motion for a directed verdict because Trevino failed to establish that it was a "successor corporation" to SKE, the entity that actually made the pins at issue, and therefore FSS is not liable for SKE's actions. In a related enumeration, FSS contends that the trial court erred in giving, over objection, Trevino's charge that "where the name of the corporation SKE Support Services, Inc. has legally changed to First Support Services, Inc., the corporation is suable in the new corporate name, though the cause of action may have arisen before the name change."

In Georgia, strict liability applies only to the "manufacturer of any personal property sold as new property," and not to a "product seller." OCGA §§ 51-1-11(b)(1); 51-1-11.1. However, a successor corporation can be held strictly liable as a "manufacturer," if it is a mere continuation of the predecessor corporation which actually manufactured the product. In Georgia, the common law continuation theory has been applied where there was some identity of ownership.

(Citations and punctuation omitted.) Farmex, Inc. v. Wainwright, 269 Ga. 548, 549, 501 S.E.2d 802 (1998).

"Generally, a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation." (Citation omitted.) Bullington v. Union Tool Corp., 254 Ga. 283, 284, 328 S.E.2d 726 (1985).

The first issue, then, is whether Trevino presented enough evidence to the jury to create a genuine issue of material fact as to whether FSS was a continuation of SKE...