Medi-Clean Services, Inc. v. Hill
| Decision Date | 01 December 1977 |
| Docket Number | No. 2,MEDI-CLEAN,No. 54574,54574,2 |
| Citation | 144 Ga.App. 389,241 S.E.2d 290 |
| Parties | SERVICES, INC. v. Stephanie HILL, by n/f |
| Court | Georgia Court of Appeals |
Brinson, Askew & Berry, Robert M. Brinson, Robert N. Farrar, Rome, for appellant.
Smith, Shaw, Maddox, Davidson & Graham, William E. Davidson, Jr., Rome, for appellee.
The appellee, an 11-month-old child, was injured when she placed her hand inside the moving parts of an automatic linen folder located in the appellant's laundry plant. She brought this action by next friend and won a $186,000 jury verdict. The appellant brings this appeal from the denial of its motion for new trial, listing 35 separate enumerations of error.
The appellee's mother had entered the plant to pick up her husband, an employee there. She carried the child with her as she had done on numerous previous occasions. After chatting briefly with her husband and the plant superintendent, she heard her sister-in-law call to her from the production area of the laundry, where heavy, industrial machinery was being operated. She walked back into this area to talk to the sister-in-law, still carrying the child. Although there was evidence that the mother knew this section of the plant was off-limits to nonemployees, she was neither prevented from coming in nor ordered to leave.
While standing in front of the automatic folding machine, the mother placed the child on the floor in order to find a cigarette for an employee who had asked her for one. The child immediately walked around to the side of the machine, placed its hand into the exposed moving parts of the drive mechanism, and lost four fingers. A protective metal guard normally covered the power transfer mechanism; however, it had been removed for several weeks in order to facilitate repairs which were being made.
1. A property owner is under a duty to exercise reasonable care to prevent injury to a licensee or trespasser who is actually known to be or may reasonably be expected to be "within the range of a dangerous act being done." Mandeville Mills v. Dale, 2 Ga.App. 607, 609, 58 S.E. 1060, 1061 (1907); Murray Biscuit Co. v. Hutto, 115 Ga.App. 870(1), 872, 156 S.E.2d 132 (1967) and 119 Ga.App. 377, 381, 167 S.E.2d 182 (1969); Huddle House, Inc. v. Burke, 133 Ga.App. 643, 648, 211 S.E.2d 903 (1974). See Fotopoulos v. Lamas, 123 Ga.App. 731, 732, 182 S.E.2d 326 (1971); Patterson v. Thomas, 118 Ga.App. 326, 163 S.E.2d 331 (1968).
The evidence in this case disclosed ample reason for the appellant to expect the presence of visitors, including children, in the production area of the laundry amidst the heavy machinery. Although there was testimony that a rule had been established to prevent nonemployees from going into the interior portions of the plant, there was also testimony that such visits by friends and relatives of employees were routine and that any rule prohibiting or restricting them was rarely enforced. It was clearly not enforced in this case. In fact, the mother testified that she was only a few feet behind her husband and the superintendent as she walked back into the production area. Furthermore, this was not the first time that the appellee and her mother had made such a visit to the plant. Under these circumstances, the jury was clearly authorized to charge the appellant with actual or constructive knowledge that the appellee was in close proximity to the machinery. Cf. Murray Biscuit Co. v. Hutto, 119 Ga.App. 377(2, 5), 167 S.E.2d 182 (1969).
The jury was also authorized to find that the operation of the machinery in its unguarded condition was a dangerous act. The shield was specifically designed to protect persons from contact with the drive mechanism, and it is evident that the mechanism had the capacity to cause serious bodily injury. Furthermore, it appears that other machinery in the area was operating with exposed moving parts having the potential to do injury. See Murray Biscuit Co. v. Hutto, supra.
Notwithstanding this evidence, the appellant vigorously asserts that it cannot be held liable, arguing that the mother's act of placing the child on the floor and letting go of her was an act of negligence which it could not reasonably have foreseen and which amounted to an intervening cause. We do not agree. Stern v. Wyatt, 140 Ga.App. 704, 231 S.E.2d 519 (1976). See Rollestone v. Cassirer & Co., 3 Ga.App. 161, 59 S.E. 442 (1907). Furthermore, "Negligence or dereliction of the parent or custodian of children is no justification for others to injure them." Air-Line Railway Co. v. Gravitt, 93 Ga. 369, 378, 20 S.E. 550, 553 (1893).
Nor can we accept the appellant's contention that this type of injury to an infant, apparently safe in its mother's arms, was not reasonably foreseeable as a matter of law. The jury was properly charged on proximate cause and foreseeability and these issues are always for jury resolution except in those rare cases in which reasonable minds cannot disagree. See Young v. Tate, 112 Ga.App. 603, 145 S.E.2d 747 (1965). Furthermore, the issue here is not whether injury to this particular plaintiff was reasonably to be anticipated, but whether licensees and trespassers in general could reasonably be expected to be within the range of danger from the unguarded machinery and whether the appellant took reasonable steps to prevent such injury. Stuart v. Berry, 107 Ga.App. 531, 537, 130 S.E.2d 838, 843 (1963).
The case of Wright v. Shoney's of Savannah, 141 Ga.App. 362, 233 S.E.2d 474 (1977), relied upon by the appellant for the proposition that the injury was not foreseeable, is distinguishable from the case before us now. In that case, we held that a restaurant could not be charged with a duty to foresee that a young child would remove air freshener from a cabinet in one of its restrooms and ingest it. In this case we are dealing not with the storage of air freshener in a restroom, but with an industrial machine being operated without the benefit of the safety shield normally covering its drive mechanism. The latter can reasonably be called a "dangerous act being done." The former cannot.
For the foregoing reasons, we hold that the evidence supported the verdict and that the trial court did not err in overruling the appellant's motions for directed verdict, for judgment notwithstanding the verdict, and for new trial on the general grounds.
2. The appellant enumerates as error the admission into evidence of certain regulations of the Occupational...
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