Lakeshore Contracting, LLC v. Lopez-Hernandez

• Decision Date: 28 June 2019
• Docket Number: A19A0446
• Parties: LAKESHORE CONTRACTING, LLC v. LOPEZ-HERNANDEZ.
• Court: Georgia Court of Appeals

830 S.E.2d 561

LAKESHORE CONTRACTING, LLC
v.
LOPEZ-HERNANDEZ.

A19A0446

Court of Appeals of Georgia.

June 28, 2019

Callie D. Bryan, Barret West Kirbo, Macon, for Appellant.

William Michael Smith, Brent McIntosh, Summit S. Tucker, Atlanta, for Appellee.

Gobeil, Judge.

After he was injured by a fall from an allegedly defective ladder that he claims was provided to his employer by Lakeshore Contracting, LLC ("Lakeshore"), Bernardo Lopez-Hernandez filed suit against Lakeshore in Crisp County Superior Court, seeking to

830 S.E.2d 562

recover for his injuries. Lakeshore now appeals from the trial court’s denial of its motion for summary judgment, arguing that Lopez-Hernandez failed to come forward with any evidence to create a jury question on the issue of Lakeshore’s liability. Specifically, Lakeshore contends that Lopez-Hernandez failed to come forward with any evidence showing either that Lakeshore had actual or constructive knowledge of the ladder’s allegedly defective condition or that Lakeshore owed Lopez-Hernandez any duty to provide him with a "safe working environment." Lakeshore further contends that the undisputed evidence shows that Lopez-Hernandez failed to exercise ordinary care for his own safety. For reasons explained more fully below, we agree with Lakeshore that Lopez-Hernandez failed to come forward with any evidence that Lakeshore had actual or constructive knowledge of the ladder’s alleged defect. Accordingly, we reverse the trial court’s order and remand for entry of judgment in favor of Lakeshore.

On an appeal from the grant or denial of a motion for summary judgment, we review the record de novo, construing the evidence in the light most favorable to the non-movant. Samuels v. CBOCS, Inc. , 319 Ga. App. 421, 422, 742 S.E.2d 141 (2012). And when conducting that review, we bear in mind that to prevail on a motion for summary judgment:

the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial the defendant may show that [it] is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

Beale v. O’Shea , 319 Ga. App. 1, 2, 735 S.E.2d 29 (2012) (citation and punctuation omitted).

Viewed in the light most favorable to Lopez-Hernandez, as the non-movant, the record shows that Lakeshore is a general contracting company that builds and remodels both residential and light commercial properties. Lakeshore’s sole owner is Greg Walker, and the company has no employees other than Walker. Thus, Walker subcontracts most of the jobs that Lakeshore is hired to perform. In May 2016, Quality Solutions, Inc. hired Lakeshore to repair a damaged wall at a Verizon Wireless store in Newnan. Lakeshore subcontracted the job to Danny Montana, and Montana, in turn, hired Lopez-Hernandez and Wilson Coca to assist him with the project.¹

Lopez-Hernandez and Coca each testified at their respective depositions² that before traveling to Newnan, the two of them, together with Montana, stopped by Walker’s workshop in Cordele to pick up materials needed for the job. According to both men, Walker loaded items onto a trailer attached to Montana’s truck, including the ladder at issue. Lopez-Hernandez further testified that there were no other ladders on the trailer. The men then drove with the ladder on the trailer for approximately three hours to reach the job site, traveling from Cordele to Newnan.

Montana, Coca, and Lopez-Hernandez began work at the Verizon store at approximately 10:00 p. m., after the store had closed. The men brought the ladder into the store from the trailer, and both Coca and Montana used the ladder without incident, although

830 S.E.2d 563

neither man stepped above the second rung. Coca testified that he was the first person to use the ladder and when he did so, he made sure that the braces on either side were locked. He also walked around the ladder to make sure it looked safe before he climbed it. Although the ladder appeared somewhat old and somewhat worn out, Coca did not see that it was broken or otherwise looked unsafe.

At approximately 1:00 a. m., Lopez-Hernandez moved the already-open ladder to his work area and began to ascend the same. As he neared the top of the ladder, one of the rungs apparently broke or gave way, and Lopez-Hernandez fell from the ladder head first, suffering several injuries, including a neck injury that required surgery. The ladder fell with Lopez-Hernandez, landing on its side. At his deposition, Lopez-Hernandez testified as to his belief that the rung on which he attempted to place his foot when he fell was already broken explaining that he "didn’t feel that I had put any weight on it" before the fall. Lopez-Hernandez acknowledged, however, that he did not perform even a cursory inspection of the ladder, even though nothing prevented him from doing so. Instead, despite the ladder’s allegedly old and worn appearance, Lopez-Hernandez simply assumed that the ladder was in good condition and was safe to use.

After the accident, Lopez-Hernandez filed the current lawsuit against Lakeshore, alleging that Lakeshore provided Montana and his workers the ladder at issue to use during the course of the job at the Verizon store. Lopez-Hernandez further asserted that Lakeshore had actual or constructive...