J.R. Mabbett & Son, Inc. v. Ripley

• Decision Date: 22 January 1988
• Docket Number: No. 75449,75449
• Citation: 365 S.E.2d 155,185 Ga.App. 601
• Parties: J.R. MABBETT & SON, INC. v. RIPLEY et al.
• Court: Georgia Court of Appeals

Page 155

365 S.E.2d 155

185 Ga.App. 601

J.R. MABBETT & SON, INC. v. RIPLEY et al.

No. 75449.

Court of Appeals of Georgia.

Jan. 22, 1988.

John E. Hall, Jr., Michael G. Frick, Atlanta, for appellant.

Thomas H. Nickerson, David E. Tuszynski, Atlanta, for appellees.

McMURRAY, Presiding Judge.

Appellee Julius Howard Ripley sued appellant J.R. Mabbett & Son, Inc. (Mabbett) for injuries received in a fall from the top of a tanker trailer truck owned by Mabbett; his wife sought damages for loss of consortium. The jury found for Mr. Ripley in the amount of $55,000 in actual damages, and $10,000 for Mrs. Ripley. Judgment was entered on the verdict and Mabbett appeals from the denial of its motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Held:

1. The evidence, construed most strongly in support of the verdict and judgment, was as follows. Mabbett is a trucking firm that hauls fuel and other petroleum products to various customers in its tanker trailer trucks. Ripley was employed by General Motors Corporation (General Motors), a customer of Mabbett's. Mabbett delivered fuel and petroleum products to General Motors three or four times a week, using tanker trailer # 208 which was over five years old. It was the duty of Mabbett and its employees to inspect, maintain and repair trailer # 208. To comply with Occupational Safety and Health Administration (OSHA) requirements and for general safety reasons, the top of trailer # 208 was coated with a non-skid deck tread to be used as a walkway for the persons who had to seal, inspect and open the compartment lids located there.

At the origin of a shipment of products to General Motors, a Mabbett employee would walk along the top of trailer # 208 with a one gallon can of petroleum based additive and pour it into the compartments. Upon delivery of a shipment at General Motors, it was the duty of a General Motors' employee to walk along the top of trailer # 208 and check and open the compartment seals. Over a period of time, General Motors' employees had complained to Mabbett's drivers on a number of occasions about the poor condition of trailer # 208. The ladder to the top of the truck was in disrepair, the deck tread on the walkway was worn bare in spots and was sometimes slippery, and there were foreign substances on the walkway that were not always visible until stepped in. The general condition of trailer # 208 was poor in comparison with trailers from other haulers making deliveries to General Motors. When trailer # 208 was not in use it was left parked in an uncovered parking area, and remained at all times in the care and control of Mabbett employees.

At approximately 4:30 on the morning of April 19, 1983, trailer # 208 arrived at General Motors with a delivery of fuel. The walkway on top was not inspected by the Mabbett driver upon arrival. Ripley performed his usual duties upon delivery, climbing up the ladder to the top of trailer # 208, walking along the walkway to the front to check the seals and open the valve covers. Ripley had a reputation of performing his job duties in a safe manner, and wore work gloves, safety glasses and safety shoes with special non-skid soles. As he was returning from the front of the trailer to the ladder at the rear, which was the only way to get off the trailer, he stepped on a spot where the non-skid deck tread had been worn bare to the metal. He did not see any foreign substance prior to stepping on the bare spot, but when he stepped on it he recognized it from his many years of experience as being an oily, petroleum based product. Ripley's feet shot out from underneath him, and having nothing to grab onto to keep from going over the side, he fell twelve feet to the concrete below, suffering broken bones and other traumatic injuries.

Appellant's contention that it was entitled to judgment as a matter of law is based upon the unwarranted premise that this is simply a slip and fall case, where in order to recover the plaintiff must affirmatively establish that the defendant had actual or constructive knowledge of the condition or circumstances causing the fall and the plaintiff had no such actual or constructive knowledge. See, e.g., Alterman Properties v. Witherspoon, 183 Ga.App. 465, 468(2), 359 S.E.2d 223 (1987). Such cases are analogous only because Ripley was an invitee on trailer # 208 at the time he was injured and thus Mabbett owed him a duty to exercise ordinary care to keep the "premises" safe and/or to warn him of any hidden dangers or defects. However, Mabbett had a common law duty to maintain, inspect, repair and keep its trailer trucks in safe operating condition and the failure to do so would constitute negligence on its part. See N.L. Indus. v. Madison, 176 Ga.App. 451(1), 336 S.E.2d 574 (1985).

Mabbett also had a duty under both state and federal statutes to maintain its vehicles in safe condition at all times. OCGA § 46-7-68(1). "Every motor carrier shall systematically inspect, repair and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its control." Federal Motor Carrier Safety Regulations, 49 CFR, Ch. III, § 396.3 (10-1-86 ed.) Under OCGA § 46-7-78, failure to comply with the provisions governing motor common carriers constitutes a misdemeanor. "It is well settled that violation of a statute ... is negligence per se. [Cits.]" White v. Cline, 174 Ga.App. 448, 449(2, 3), 330 S.E.2d 386 (1985); Cox v. Cantrell, 181 Ga.App. 722, 724(5), 725, 353 S.E.2d 582 (1987). Clearly Mabbett owed a duty to Ripley, who was required by his job to use the walkway on top of trailer # 208, to use reasonable care in inspecting the trailer and to keep it in such condition as to be used with reasonable safety. See Atlanta & West Point R. Co. v. Creel, 77 Ga.App. 77, 80(1), 47 S.E.2d 762 (1948).

Trailmobile v. Smith, 181 Ga.App. 134, 351 S.E.2d 528 (1986) is likewise inapposite, and it was a products liability case alleging negligent design of or manufacturing defect in a tanker trailer truck. The plaintiff, in that case, was the driver of the tanker trailer and the person who was in control of its inspection, operation and maintenance. Thus, there was no duty to inspect, maintain, repair or keep the truck in safe operating condition owed by the defendant to the plaintiff in that case; nor was there any issue of the defendant's negligence in keeping the walkway properly repaired or evidence that it was in disrepair. Inasmuch as no actionable design or defect was shown, this court did not consider whether OSHA standards were admissible to prove a design defect.

Here, however, there was ample evidence that Mabbett, which was in sole control of the care and repair of trailer # 208, was negligent in permitting the deck tread required for safety reasons to become and remain worn in an environment where the tread was sometimes exposed to slippery substances. The appellee Mr. Ripley had no control over the inspection, operation or maintenance of Mabbett's truck and had the right to expect that Mabbett would fulfill its common law and statutory duty to keep the truck in safe repair. Ripley had no choice as to whether he would go to the top of trailer # 208 as this was a necessary consequence of his employment, and had no safer alternative for performing his duties...