Georgia Dep't of Corr. v. Couch, A11A1083.
| Decision Date | 15 November 2011 |
| Docket Number | No. A11A1083.,A11A1083. |
| Citation | 11 FCDR 3741,312 Ga.App. 544,718 S.E.2d 875 |
| Parties | GEORGIA DEPARTMENT OF CORRECTIONS v. COUCH. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Samuel S. Olens, Atty. Gen., Robert Lee Bunner, Asst. Atty. Gen., for appellant.
Farah & Farah, Kevin Elwell, Thomas George Tidwell, for appellee.
David Lee Couch filed this premises liability action against the Georgia Department of Corrections (“the Department”) seeking damages for physical injuries he sustained while working in a prison detail at Walker State Prison. The Department appeals the judgment entered on the jury's verdict in favor of Couch. For the reasons that follow, we affirm.
In an appeal from a jury verdict, this Court must affirm the judgment “if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict.” 1
So viewed, the record shows that on July 9, 2004, while housed as an inmate at Walker State Prison, Couch volunteered to paint the warden's house, which was located across from the prison. The house was under renovation, and another crew had removed the flooring in the kitchen and dining area of the home, leaving the floor joists exposed, because the floor and some of the joists were water-damaged and rotted. By the time of the incident, the Department was in the process of replacing the floor joists, but although some of the floor joists in the dining area had been replaced, the crew had left some of the joists that were dry-rotted.
When Couch arrived at the house, he and the other members of the painting crew traversed the kitchen and dining area by walking along the floor joists in order to retrieve painting supplies stored in the garage and to access the second floor of the home where they were painting. Couch and the other crew members were not warned about the dry rot and were not told to stay out of the kitchen and dining area. Couch testified that walking across floor joists is a common practice in residential construction and generally is not considered dangerous.
After a few times of walking through the area over the course of the day, Couch was proceeding back to the second floor when one of the joists in the dining area deteriorated and gave way beneath his foot, causing him to fall and land with his legs straddling a joist. As a result of the fall, Couch suffered a severed urethra.
The jury returned a verdict in favor of Couch in the amount of $105,417. The verdict form did not require the jury to specifically address whether Couch was an invitee or licensee. The trial court entered judgment on that verdict. The Department appeals, asserting that the trial court erred by (1) denying its motion for a directed verdict; (2) overruling objections regarding the admission of certain evidence; (3) denying its motion for mistrial; and (4) refusing to give a jury charge on the issue of voluntary departure.
1. First, the Department argues that the trial court erred by denying its motion for a directed verdict.
“A directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.” 2
(a) Specifically, the Department contends that Couch should have been classified as a licensee to whom the Department only owed a duty to refrain from wilfully or wantonly injuring Couch.
[Couch]'s status as either a licensee or an invitee determines the duty of care that [the Department owed him]. An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose. A licensee, on the other hand, is a person who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted to go on the premises merely for her own interests, convenience, or gratification. The generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render [his] presence of mutual benefit to both, or was for business with one other than the owner or occupier.3
The Department contends that as a matter of law Couch should have been deemed to be a licensee, either because of his status as a prisoner or because he left the area of the home in which he was invited to be and entered an area of the home where he was not invited and then became injured. Nevertheless, we need not address this question.
When there is conflicting evidence as to the legal status of the injured party, the question is rightfully left to the jury.4 Here, the trial court properly denied the Department's motion for directed verdict as to the issue of duty because there was conflicting evidence as to whether Couch was in the warden's home as a benefit to the Department and whether Couch was warned to stay out of the kitchen and dining area. The trial court correctly charged the jury on the law of duties of care owed to licensees and invitees, and evidence presented at trial supported a finding that Couch was an invitee at the time he was injured.5 Accordingly, the Department's argument is without merit.
(b) The Department also contends that Couch had equal knowledge of the dry rot that caused his fall because he had traversed the floor joists several times before he fell and that Couch failed to exercise due care for his own safety as a matter of law. We disagree.
The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. It is the plaintiff's knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely [his] knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids. 6
In this case, the trial court correctly allowed the case to go to a jury because although there was no question that Couch was aware of the phenomenon of dry rot in general and was aware that one could fall from a floor joist, there was no evidence that he was aware of any dry rot in these particular floor joists. Therefore, a question of fact existed as to whether Couch was aware or should have been aware of the hazard after walking over the area prior to his fall.7 Moreover, the trial court also correctly determined that a jury question existed as to the issue of “[w]hether [Couch] exercised that duty of care commensurate with [his] knowledge [and] ... exercised due care for [his] personal safety.” 8 10
(c) The Department contends that the trial court erred by denying its motion for a directed verdict because Couch assumed the risk of injury by traversing the floor joists. Again, we disagree.
“[E]xcept in plain, palpable[,] and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of contributory negligence and assumption of risk are for the jury.” 11
Absolutely fundamental to any assumption of the risk analysis is knowledge of the risk involved, which must be both actual and subjective—the knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. Significantly, a plaintiff's comprehension or general understanding of nonspecific risks that might be associated with the activity at issue is not sufficient. Rather, in its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.12
The undisputed testimony of the record established that Couch had previously worked in the construction industry and was of the opinion that walking along exposed floor joists was a reasonable, common practice, and that he expected any rotten areas to be cordoned off or warned about; although he was aware that wood could rot, he was not aware of a specific risk that the wood over which he walked was rotten so as to expose him to the risk of having a portion of the joist deteriorate under his foot as he traversed the area.13 Thus, at the very least, there was a question of fact as to whether Couch assumed the risk of the fall by traversing the floor joists rather than walking around the outside of the home, and the trial court did not err by refusing to grant a directed verdict based on this argument.
2. Next, the Department contends that the trial court abused its discretion by denying its motion for mistrial after the admission of the opinion of Dr. Joseph Paris regarding the liability of the Department for the cost of Couch's treatment. We disagree.
When ruling on a motion for mistrial, a trial court is vested with broad discretion, and this Court will not disturb the ruling absent a manifest abuse of discretion.14 “In reviewing the trial court's refusal to grant a mistrial, we consider whether the remarks affected or infected the verdict, and whether it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” 15
Couch presented the testimony of Dr. Norman Fitz–Henley via deposition at trial. Prior to trial, the parties' attorneys conferred regarding the deposition, and the two had agreed to redact certain portions. Couch's attorney inadvertently failed to...
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