Little Rapids Corp. v. McCamy

• Decision Date: 07 July 1995
• Docket Number: A95A0293,Nos. A95A0292,s. A95A0292
• Citation: 460 S.E.2d 800,218 Ga.App. 111
• Parties: LITTLE RAPIDS CORPORATION v. McCAMY. PHYSICIAN SALES & SERVICE, INC. v. McCAMY.
• Court: Georgia Court of Appeals

Page 800

460 S.E.2d 800

218 Ga.App. 111

LITTLE RAPIDS CORPORATION v. McCAMY.

PHYSICIAN SALES & SERVICE, INC. v. McCAMY.

Nos. A95A0292, A95A0293.

Court of Appeals of Georgia.

July 7, 1995.

Reconsiderations Denied July 26, 1995.

Certiorari Denied Nov. 3, 1995.

Swift, Currie, McGhee & Hiers, W. Ray Persons, Micheal D. Watson, Monique R. Walker, Atlanta, for Little Rapids Corp.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Marietta, for McCamy.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, James R. Doyle II, Atlanta, for Physician Sales & Service.

McMURRAY, Presiding Judge.

Plaintiff Virgil Mark McCamy brought this tort action against defendant Little Rapids Corporation d/b/a Graham Medical Products ("Little Rapids") and defendant Physician Sales & Service, Inc. ("Physician Sales"), alleging that Little Rapids, at its facility in Holyoke, Massachusetts, "negligently loaded the truck [plaintiff was driving with medical supplies] so as to cause [the truck] to be crammed or the pallets therein to be improperly stacked." Plaintiff's ultimate destination was the location of defendant Physician Sales in Marietta, Georgia. While unloading plaintiff's truck, agents and employees of Physician Sales "negligently operated a forklift so as to cause certain medical supplies to fall on the Plaintiff causing him injury."

The case was tried before a jury, which found for the plaintiff. Viewed in the light most favorable to that verdict, ¹ the evidence showed that plaintiff was employed as a long- distance trucker, "dispatched mainly to the eastern seaboard and provinces of Quebec and [Ontario]." On July 2, 1991, he was dispatched to Little Rapids' facility in Holyoke, Massachusetts, to pick up a load of disposable medical products, such as examination capes, gowns, and table rolls for doctors' offices. "[T]his was the first time that [he had ever gone] up there[.]" Plaintiff slept "while [employees of Little Rapids] loaded the truck[.]" The truck was "already completely loaded when they woke [plaintiff] up[.]" The truck was "pretty full[;] ... there was just barely enough room for [plaintiff] to get [his] locks and stuff in there." Inside the trailer, cardboard dividers, reaching "from top to bottom," separated the loads designated for different stops. Plaintiff left Little Rapids' Holyoke, Massachusetts facility and drove without incident to West Columbia, South Carolina, to another stop in Atlanta, Georgia, and then on to Physician Sales' facility in Marietta, Georgia. There, plaintiff was to deliver seven pallets of medical supplies. He volunteered to help the Physician Sales' employees unload the truck, to "make sure the count was alright."

Edward F. Sophranowitz, a supervisor and group leader in Little Rapids' shipping department, explained that shipments of medical supplies were stacked on pallets and then bound by shrink wrap, i.e., the supplies were horizontally wrapped completely around in plastic wrap by placing the pallet on a turntable. The plastic wrap tightly binds the supplies in a stack. However, Little Rapids would only shrink wrap up to a height of "ninety inches or less, because that's the maximum height ... of [its] warehouse door[.]" Consequently, Little Rapids "can't shrink wrap to the top" of a loaded pallet. Little Rapids' employees would place loose loads of "the light stuff to top off [the shrink wrapped load, such as] examination capes and gowns." This was Little Rapids' "standard procedure in every truck." The loading order for plaintiff's deliveries reflects that "on the top of the load delivered to Marietta, Georgia was 20 cases of hand towels."

Plaintiff understood the purpose of shrink wrapping was "to secure the load and keep it from shifting...." However, this particular load "wasn't shrink wrapped all the way up." Plaintiff did not know this when he left Holyoke, Massachusetts, because of the divider that "went all the way from the bottom to the top." When he arrived at his stop in Marietta, Georgia, the truck "was a mess.... We took the divider down and then we seen [sic] what it was. Some of it--was not shrink wrapped. One of them had fell [sic] over. It was just the way they crammed it into the nose of the trailer and that's all they did." Plaintiff told the two Physician Sales employees, Anthony Eugene Coleman and Kenny Strom, "to be careful ..." as they unloaded the truck. He "thought it was an unsafe load ... [because it] was not shrink wrapped completely." On top of the shrink wrapped portion "were a couple of layers of boxes." These boxes came "[w]ithin three inches ..." of the trailer ceiling. Physician Sales employees unloaded six stacks without incident. However, with the final stack, the Physician Sales employee, Anthony Coleman, "knew he only had three inches [clearance]...." Plaintiff stepped into the trailer and behind Anthony Coleman to pick up some loose "[r]olls of paper [that] fell off," taking care to remain "far enough back to make sure ..." nothing further would fall on him. While plaintiff was carrying the box of paper rolls, Coleman stopped in front of him at the edge of the trailer by the loading dock. Plaintiff also "stopped to see what the problem was." He had just bent over and set the box down when Anthony Coleman started pulling the last stack over the lip and out the trailer door. The "top layer of boxes hit the edge of the door and some fell off." Plaintiff was approximately four-and-one-half feet away when "the load started falling on [him]. It hit [him] in the head, shoulder and mouth...." There were four or five boxes atop the stack, each box weighing, in plaintiff's estimation, "about thirty-five to forty pounds...." Anthony Coleman "never considered [whether he could knock loose boxes from the top of a shrink wrapped pallet with only three inches clearance if he caught the lip of the trailer,] because it had never happened before. [He had] never run into [any]thing before." Anthony Coleman raised the height of the pallet by jacking the hand- operated forklift before attempting to exit the trailer.

Pursuant to a special verdict, the jury awarded plaintiff $200,000 against Physician Sales and $100,000 against Little Rapids. In Case No. A95A0292, Little Rapids appeals from the judgment entered by the trial court against it, and in Case No. A95A0293, Physician Sales appeals from the judgment entered against it. The two cases are hereby consolidated for disposition on appeal. Held:

Case No. A95A0292

1. Little Rapids enumerates the denial of its motion for directed verdict, arguing first that "the undisputed facts clearly establish that plaintiff assumed the risk of injury, thereby barring plaintiff from recovery against the defendant." Specifically, Little Rapids argues that defendant's admissions establish that plaintiff "knew that there were loose boxes on top of the [last] pallet[ ... which] could possibly fall on him[, ... yet] he walked within a distance so close to the stack that he was struck by the falling boxes."

" 'The doctrine of the assumption of the risk of injury, applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury. (Cit.)' [ (Emphasis omitted.) ] Myers v. Boleman, 151 Ga.App. 506, 509(3) (260 SE2d 359)." Girone v. City of Winder, 215 Ga.App. 822, 824(2), 825, 452 S.E.2d 794. " ' "In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone." Prosser, Law of Torts (4th Ed.) p. 440....' Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980)." Stallings v. Cuttino, 205 Ga.App. 581(1), 582, 422 S.E.2d 921. "However, '(i)t is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic travelling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk .... (T)he plaintiff has exposed himself to the risk of future harm, but he has not consented to relieve the defendant of any future duty to act with reasonable care....' Prosser & Keeton, The Law of Torts, § 68, p. 485 (5th ed. 1984)." Beringause v. Fogleman Truck Lines, 200 Ga.App. 822, 823(4), 409 S.E.2d 524. Significantly, "the rule does not extend to assuming the risk of the negligent act of another. Thomas v. Shaw, 217 Ga. 688[ (1) ] (124 SE2d 396)." Owens-Illinois, Inc. v. Bryson, 138 Ga.App. 78, 79, 225 S.E.2d 475.

In the case sub judice, undisputed evidence that plaintiff knew of the type of harm posed by the loose boxes on top of the secure load does not demand a finding that plaintiff consented in advance to relieve defendant Little Rapids of liability for any injuries subsequently sustained while plaintiff bent over and set the box down, in order to see why Mr. Coleman had stopped and then moved again without warning. Plaintiff's proximity to this foreseeable hazard may be evidence of contributory or comparative negligence on the part of plaintiff but it is not an assumption of the risk. Beringause v. Fogleman Truck Lines, 200 Ga.App. 822, 823(4), 409 S.E.2d 524, supra. Compare Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga.App. 343, 344, 433 S.E.2d 344, where the plaintiff in that case knew of the precise risk involved and yet ...