Georgia Ports Authority v. Hutchinson

• Decision Date: 16 July 1993
• Docket Number: No. A93A0861,A93A0861
• Citation: 209 Ga.App. 726,434 S.E.2d 791
• Parties: GEORGIA PORTS AUTHORITY et al. v. HUTCHINSON.
• Court: Georgia Court of Appeals

Page 791

434 S.E.2d 791

209 Ga.App. 726

GEORGIA PORTS AUTHORITY et al. v. HUTCHINSON.

No. A93A0861.

Court of Appeals of Georgia.

July 16, 1993.

Reconsideration Denied July 28, 1993.

Certiorari Denied Nov. 4, 1993.

Michael J. Bowers, Atty. Gen., John B. Ballard, Jr., Roland F. Matson, Sr. Asst. Attys. Gen., Atlanta, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Mahoney III, R. Stephen Flagler, Savannah, for appellants.

David H. Fritts, Savannah, Billy E. Moore, Atlanta, Shari S. Miltiades, Savannah, for appellee.

BIRDSONG, Presiding Judge.

Charles Hutchinson III sued Georgia Ports Authority and crane operator Cory Green for damages to his hand, caused when Green dropped a 12-to-20 ton container box while Hutchinson was hooking a "locking shoe" to the box. Hutchinson contends the crane and crane operator were controlled by the Ports Authority, and that although crane operators use radios to communicate with other dock personnel, the procedure for communication between crane operators and longshoremen ninety feet below was inadequate and unsafe, consisting merely of hand signals by a longshoreman with a white paper cup stuck on three fingers. Hutchinson claimed punitive damages and showed evidence of other injuries caused by unsafe operating practices and careless crane operators. The Ports Authority contended the flagman, who did not testify, had made a signal; Hutchinson claimed Green dropped the container box without a signal. The jury awarded plaintiff "damages in the amount of $394,750, which includes the amount of $12,127.57 for his medical expenses." The Ports Authority appeals. Held:

1. The trial court correctly denied a directed verdict to the Ports Authority as to liability. A directed verdict is proper only where there is no conflict in the material evidence and the evidence, with all reasonable deductions, demands a certain verdict. OCGA § 9-11-50(a). On appeal we view the evidence in favor of the verdict. Appellant says the evidence undisputedly establishes that the flagman gave a signal to lower the box, and that the only witness who says otherwise was impeached by his deposition testimony. However, the testimony as to what this witness said in deposition is unclear. The witness insisted at trial that the flagman gave no signal. We presume the jury reconciled any inconsistencies in the witness' testimony. Hudson v. State, 163 Ga.App. 845, 295 S.E.2d 123. The evidence does not demand a finding that a signal was given and it does not demand a verdict for the Ports Authority. Union Camp Corp. v. Daley, 188 Ga.App. 756, 758, 374 S.E.2d 329.

2. Appellant contends the trial court erred in refusing to charge the jury on appellee's equal or superior knowledge of dangerous conditions. This principle applies to "static" defective or dangerous conditions on property. See Colbert v. Piggly Wiggly Southern, 175 Ga.App. 44(2), 332 S.E.2d 304. There was debate that the crane was improperly equipped and thus "defective," but the liability involves appellant's negligence in requiring the use of inadequate hand signals to crane operators, and the negligence of the operator in dropping the container box without a signal. Appellant's claim that appellee had equal/superior knowledge of a "defect" does not address proximate cause, which was the lowering of the box. Moreover, appellant has consistently claimed that even if the equipment was defective, the use of hand signals was safe and adequate to overcome any defect; yet by contending appellee is barred from recovery because he had equal/superior knowledge of a defect, appellant is contending the operator had no duty at all to watch for hand signals. This is inconsistent and is an argument that crane operators and Ports Authority enjoy absolute immunity for injury to a longshoreman related to hand signalling. It is also a contention that appellee assumed the risk of this injury by accepting his employment, which appellant is estopped to assert because it is inconsistent with the contention that the hand signal procedure was safe and adequate. Shepard v. Streetman, 198 Ga.App. 474, 475-476, 402 S.E.2d 87. A jury charge that appellant would not be liable if appellee had equal or superior knowledge of defective conditions in the crane was not only unwarranted but would have been misleading.

Even if such a charge were authorized, the failure to give it was not reversible error, as the jury was fully charged that appellee had a duty of ordinary care for his own safety and that appellant would not be liable unless its negligence was the proximate cause of appellee's injuries. See Colbert, supra.

3. The failure to give a charge per OCGA § 51-11-7: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover," was not reversible error. The court charged on appellee's duty to exercise reasonable care for his own safety and that appellant could not be liable unless its negligence was the proximate cause of appellee's injuries. Under these charges, the jury found appellant's negligence was the proximate cause of the injury. Although appellant suggests appellee was negligent, appellant cites no such evidence except that someone shouted that the box was dropping and the box was dropped at slow speed. Even assuming the box was dropped at slow speed, the evidence showed appellee moved his hand as soon as he realized the box was being dropped and acted fast enough to jerk his hand out of his glove; the glove was crushed by the box. As there was no evidence appellee was negligent, a charge on contributory negligence was not required. See Glenridge Unit Owners Assn. v. Felton, 183 Ga.App. 858, 360 S.E.2d 418.

4. The trial court did not err in charging that if the Ports Authority or its agent was negligent, any negligence of the stevedore or other longshoremen was irrelevant. Appellant concedes this charge is correct as to joint and several liability (see OCGA § 51-12-31; Church's Fried Chicken v. Lewis, 150 Ga.App. 154, 256 S.E.2d 916), but says the charge suggested the jury could ignore negligence of appellee, his co-workers or the stevedore. We disagree. The court did not charge the jury it could ignore appellee's negligence. The jury was charged not to find appellant liable unless they found its negligence was the proximate cause of the injury; the jury did not have to consider the negligence of third parties, as appellant is liable for the entire damages, jointly and severally with any other tortfeasor, and there is no accounting of comparative negligence among tortfeasors. Id.

5. Appellant's enumeration as to the trial court's failure to give charges "on the issue of control" is deemed abandoned, as appellant in its brief does not describe the substance of these charges and cites no law as to why they should have been given. Mitchell v. Southern Gen. Ins. Co., 194 Ga.App. 218(7), 390 S.E.2d 79.

6. The trial court correctly excluded evidence of a "tariff," which appellant contends would have proved it did not control the crane and crane operator. The tariff's disclaimer of liability was contrary to public policy (see City of Albany v. Oxford Constr. Co., 221 Ga. 872, 874, 148 S.E.2d 324), so even if it were relevant it would have been prejudicial. See MacNerland v. Johnson, 137 Ga.App. 541, 224 S.E.2d 431.

7. The trial court did not err in charging the jury as to certain OSHA standards on grounds that OSHA does not apply to appellant, as it is a department of the State and is not an "employer" under 29 U.S.C.A. § 652(5). Appellant's only objections to this charge were that OSHA was fully complied with and that the stevedore's violation of OSHA regulations might be wrongly imputed to appellant. The objection to the charge made on appeal was thus waived. T. G. & Y. Stores Co. v. Waters, 175 Ga.App. 884, 886, 334 S.E.2d 910.

8. The charge was not objectionable on grounds that the evidence proved OSHA regulations were complied with, as this was an issue of fact for the jury at trial, objections to the jury's consideration of OSHA regulations having been waived.

9. The trial court correctly denied a motion in limine to exclude mention of equipment which appellant contends it was under no duty to provide. Georgia law favors admissibility of evidence. Daras v. State, 201 Ga.App. 512, 513, 411 S.E.2d 367. The trial court did not abuse its discretion in allowing evidence as to equipment which appellant provides for other purposes but does not provide for communication with longshoremen. This evidence was relevant to the issue of appellant's negligence in the use of hand signals with paper cups in these circumstances.

10. The trial court did not err in permitting the witness Liakakis to testify as an expert for procedures where hand signals or sight alone is insufficient. See OCGA § 24-9-67. The weight to be accorded Liakakis' testimony was for the jury. See Hicks v. State, 196 Ga.App. 311(2), 396 S.E.2d 60.

11. The charge that appellee knew better than any doctor the extent of his pain and suffering was not reversible error, for appellee's statements were statements of fact, but doctors' testimony would be opinion. OCGA § 24-9-67. The value of any such testimony is a matter of credibility and weight. Arnold v. State, 155 Ga.App. 569, 271 S.E.2d 702.

12. Appellant contends the trial court allowed appellee's counsel to argue facts not in evidence, but at trial appellant made no objection to those remarks. T. G. & Y. Stores, supra. See Pheil v. Southern Bell Tel., etc., Co., 201 Ga.App. 846(4), 412 S.E.2d 609 as to procedure for objection to arguments; see Smith v. State, 189 Ga.App. 244, 246, 375 S.E.2d 496.

13. The trial court erred in denying appellant's motion for directed verdict as to punitive damages.

(a) An award of punitive damages against the Georgia Ports Authority was against Georgia public policy and is impermissible as a matter of law...