Hillman v. Carlton Co., A99A1028.

• Decision Date: 20 September 1999
• Docket Number: No. A99A1028.,A99A1028.
• Citation: 522 S.E.2d 681,240 Ga. App. 432
• Parties: HILLMAN v. CARLTON COMPANY.
• Court: Georgia Court of Appeals

522 S.E.2d 681

240 Ga. App. 432

HILLMAN v. CARLTON COMPANY.

No. A99A1028.

Court of Appeals of Georgia.

September 20, 1999.

Reconsideration Denied October 20, 1999.

Certiorari Denied February 25, 2000.

Mathis, Cannon & Cormack, J. Philip Cannon, Albany, for appellant.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Albany, for appellee.

MILLER, Judge.

Johnell Hillman, Jr. sued Carlton Company for injuries arising out of a forklift malfunctioning and dumping Hillman 20 feet onto a concrete floor. Carlton, which maintained the forklift, defended on grounds that Hillman voluntarily assumed the risk of the fall by climbing onto the vehicle's forks despite his awareness of visible warnings prohibiting such. Agreeing that Hillman assumed the risk, the court granted Carlton's motion for summary judgment. We reverse on the ground that although Hillman assumed the risk of falling, he did not assume the risk of being dumped by the forklift.

Construed in favor of Hillman, the record showed that Carlton negligently maintained the forklift by failing to adjust certain anchor devices controlling the lift chains, thus allowing the stop bar to repeatedly slam against and weaken the stop bolts when the forks reached their maximum height. Over time Carlton replaced four stop bolts, including two six months prior to the accident. On the morning of the accident, Carlton inspected the machine and certified it as "ready to go."

During his employment Hillman had, without injury, often climbed onto the forklift's forks for various purposes, despite being aware of written warnings on the machine expressly prohibiting such. On the morning of the accident, Hillman stood in a box stacked inside another box that was on the forks, so that the forklift operator could raise him to measure the height of the warehouse ceiling. As the forks neared their peak height, the stop bolts failed, and the forks exceeded their peak height. The top two sets of carriage rollers came out of the mast channel, and the forks tilted downward, dumping Hillman and the boxes onto the floor. Hillman had never before seen a forklift malfunction in this manner.

1. The issue is whether Carlton showed, as a matter of law, that Hillman assumed the risk of the forklift dumping him onto the floor.

In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

(Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864(1), 471 S.E.2d 866 (1996); see Cornwell v. Chambers of Ga., 228 Ga.App. 64, 65, 491 S.E.2d 132 (1997).

Construed in favor of Hillman, the evidence does not conclusively establish the first element, let alone the latter elements. Hillman had actual knowledge of the inherent risk he could fall if he stood on or was raised by the forks, but his knowledge did not extend to the possibility that because of poor maintenance, the forks would malfunction, tilt forward, and dump him onto the ground. Vaughn emphasized that the first element can be shown only if the plaintiff had actual, subjective knowledge of the specific defect and fully appreciated its danger.

Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff's part. 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. The knowledge requirement does not refer to a plaintiff's comprehension of general, non-specific risks that might be associated with such conditions or activities.

(Punctuation and footnotes omitted; emphasis in original.) Vaughn, supra, 266 Ga. at 864, 471 S.E.2d 866; Cornwell, supra, 228 Ga.App. at 65, 491 S.E.2d 132 (evidence must show plaintiff fully appreciated the specific danger).

Even the federal circuit case cited by Carlton, Mitchell v. Young Refining Corp., 517 F.2d 1036, 1040 (5th Cir.1975), explained that plaintiff must be "fully and completely aware of the dangerous or defective conditions he is encountering, and the danger to himself entailed therein...." Mitchell relied in part on Kreiss v. Allatoona Landing, 108 Ga.App. 427(2), 133 S.E.2d 602 (1963), in which summary judgment for the defendant was reversed because, even though the plaintiff assumed certain general risks by traversing defendant's dock in the dark, she did not know of the defect in the dock that caused her fall.

A more recent case reversed summary judgment on this very ground. Sutton v. Sumner, 224 Ga.App. 857, 859-860, 482 S.E.2d 486 (1997), held that although a spectator in a pit area during a race assumed the general inherent risk of getting hit by a car (such as by a car over which the driver lost control), he had no reason to anticipate the risk of getting hit by an improperly towed car. Such was not a "normal, ordinary danger inherent in watching the race from the pit area." Id. at 860, 482 S.E.2d 486.

Similarly, Vaughn, supra, 266 Ga. at 865(2),471 S.E.2d 866, reversed a defense verdict where the plaintiff police officer's car was struck by a truck as the officer was proceeding through an intersection in the wrong lane with his siren sounding and his blue lights flashing. The truck, parked at the road's right side and facing the same direction as the officer, suddenly and without signaling turned left into the officer's path. Although the officer had assumed the general risks associated with speeding through an intersection on the wrong side of the road, he had no reason...