Kitchens v. Winter Co. Builders, Inc.

• Decision Date: 17 March 1982
• Docket Number: No. 62902,62902
• Citation: Kitchens v. Winter Co. Builders, Inc., 289 S.E.2d 807, 161 Ga.App. 701 (Ga. App. 1982)
• Court: Georgia Court of Appeals
• Parties: KITCHENS v. The WINTER COMPANY BUILDERS, INC.

Page 807

289 S.E.2d 807

161 Ga.App. 701

KITCHENS v.The WINTER COMPANY BUILDERS, INC.

No. 62902.

Court of Appeals of Georgia.

March 17, 1982.

Charles E. McCranie, Thomas W. Thrash, Atlanta, for appellant.

Lowell S. Fine, Kathy L. Portnoy, Atlanta, for appellee.

McMURRAY, Presiding Judge.

This case involves a construction worker who fell off a ladder at a job site and suffered personal injuries from the fall.Frank B. Kitchens, an employee of a subcontractor at the time of the incident, brought this action against the general or prime contractor, The Winter Company Builders, Inc., alleging that his injuries were directly and proximately caused by the negligence of the defendant in that the ladder upon which he was climbing was improperly constructed as to the step spacing, did not have a side rail, was placed in a muddy area and the platform at the top of the ladder did not have a hand rail and same was extremely muddy and slippery.He alleges that in attempting to step from the ladder to the floor, "because of the slippery condition of the ladder and the floor, his feet slipped from underneath him," thereby causing the fall to the ground below.He also contends the defendant was guilty of negligence per se in the violation of general industry health and safety standards (29 CFR 1910.25).

Defendant answered, inter alia, adding numerous and extensive defenses to the action, admitting only jurisdiction and otherwise denying the claim.

Following extensive discovery the defendant moved for summary judgment, and after a hearing the trial court granted same, noting "that plaintiff could have avoided the consequences to himself caused by the alleged negligence of the defendant in that he knew of and fully appreciated the danger presented by the alleged negligence and assumed the risk."Plaintiff appeals.Held :

1.As a general proposition, issues of negligence, assumption of risk, contributory negligence and lack of ordinary care for one's own safety in avoiding the consequences of another's negligence and comparative negligence are not susceptible of summary adjudication either for or against the claimant but must be resolved by a jury as a trier of fact.SeeWakefield v. A. R. Winter Company, Inc., 121 Ga.App. 259, 260, 174 S.E.2d 178.Further, the trial court can only determine as a matter of law that 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.SeePowell v. Berry, 145 Ga. 696, 701, 89 S.E. 753;Ellington v. Tolar Construction Company, 237 Ga. 235, 237, 227 S.E.2d 336.Thus, even if there be no dispute as to the facts, if that be the case here, it is usually a question for the jury to determine whether the conduct in question of the plaintiff under the circumstances met "the standard of the reasonable man."Wakefield v. A. R. Winter Company, Inc., 121 Ga.App. 259, 260, 174 S.E.2d 178, supra.See alsoMcCurry v. Bailey, 224 Ga. 318, 320, 162 S.E.2d 9;Wynne v. Southern Bell Telephone & Telegraph Co., 159 Ga. 623, 629, 126 S.E. 388;Ellington v. Tolar Construction Company, 237 Ga. 235, 237, 227 S.E.2d 336, supra.We note here the language of the Supreme Court in Ellington v. Tolar Construction Company, supra, at page 238, 227 S.E.2d 336: "Both the common law and statutes regard conduct involving an unreasonable risk of harm as anti-social conduct.This is the essence of negligence law.Negligence consists of exposing another to whom one owes a duty, or exposing oneself, to a foreseeable unreasonable probability of harm.Reasonable foresight does not require of a plaintiff or a defendant that he anticipate exactly what will happen and exercise perfect judgment to prevent injury."The Supreme Court then held that the issues of the defendant's failure to exercise ordinary care and the plaintiff's duty to exercise ordinary care for his own safety are not capable of summary adjudication under the facts as shown, citing Peacock Construction Company v. Chambers, 223 Ga. 515, 518, 156 S.E.2d 348, affg. s. c. 115 Ga.App. 670, 675, 155 S.E.2d 704;Butler v. Lewman & Company, 115 Ga. 752, 42 S.E. 98, andWakefield v. A. R. Winter Company, Inc., 121 Ga.App. 259, 263, 174 S.E.2d 178, supra.

The defendant's contention here is that the plaintiff and the other workers on the job who had repeatedly complained to the supervisors about the ladder, which for the purpose of summary judgment is assumed to be faulty and the cause of injury, had only to walk off the job and refuse to work, but in continuing to work they assumed the risk.The doctrine of assumption of risk applies in tort cases when a person without coercion of circumstances, pursues a course of conduct with full knowledge of its danger thereby exercising a free choice as to whether to engage in the act or not.See in this connection Whitehead v. Seymour, 120 Ga.App. 25, 28, 169 S.E.2d 369;Myers v. Boleman, 151 Ga.App. 506, 509(3), 260 S.E.2d 359.Thus, the workers and employees had knowledge of the danger but despite their grumbling continued to perform their duties required on this construction job.Yet they had not waived the requirement that the defendant was under a duty to protect them; and they did not tacitly and impliedly agree to take their own chances.SeeRoberts v. King, 102 Ga.App. 518, 521, 116 S.E.2d 885;Owens-Illinois, Inc. v. Bryson, 138 Ga.App. 78, 79, 225 S.E.2d 475.

However, this case is here on summary judgment, and the court in construing the evidence must give the party opposing the motion the benefit of all favorable inferences that may be reasonably drawn from the evidence.SeeJ. C. Penney Casualty Insurance Company v. Williams, 149 Ga.App. 258, 261-262, 253 S.E.2d 878.It goes without saying that all construction work is dangerous and if we applied the doctrine of assumption of the risk, which the defendant desires the court to do here, there would be no construction work, as all employees would immediately be required to walk off the job or assume the risk of injury by waiving any negligence as to anyone involved.However, under the circumstances here, it is for the jury to determine whether under the facts and circumstances and inferences drawn from the evidence that a situation is so dangerous that the person injured in continuing to work with full appreciation of the danger involved and without restriction of his freedom of choice by circumstances or coercion deliberately pursued an obviously perilous course of conduct.Any construction worker as a servant and employee has a certain amount of his freedom of choice restricted by the circumstances under which he works and the coercion of...