Newcomb v. Spring Creek Cooler Inc.

• Decision Date: 05 June 2019
• Docket Number: No. 18-12036,18-12036
• Citation: 926 F.3d 709
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Michael NEWCOMB, Kathy Newcomb, Plaintiffs - Appellants, v. SPRING CREEK COOLER INC, Spring Creek Produce LLC, SF Farms Inc, SF Exports Inc, T & L Farms Inc, et al., Defendants - Appellees.

926 F.3d 709

Michael NEWCOMB, Kathy Newcomb, Plaintiffs - Appellants,

v.SPRING CREEK COOLER INC, Spring Creek Produce LLC, SF Farms Inc, SF Exports Inc, T & L Farms Inc, et al., Defendants - Appellees.

No. 18-12036

United States Court of Appeals, Eleventh Circuit.

June 5, 2019

Maxwell Kent Thelen, Kurt G. Kastorf, James Darren Summerville, The Summerville Firm, LLC, ATLANTA, GA, Jack Jeffrey Helms, III, Helms Law Firm, HOMERVILLE, GA, for Plaintiffs - Appellants.

Mark L. Pickett, McLain & Merritt, PC, ATLANTA, GA, Donald Alexander Sweat, Gardner Willis Sweat Plaire & Pickett, ALBANY, GA, for Defendants - Appellees.

Before MARCUS and BLACK, Circuit Judges, and RESTANI,^* Judge.

MARCUS, Circuit Judge:

Michael Newcomb, a truck driver, was injured on the job while picking up a shipment of corn at Spring Creek’s facility in Brinson, Georgia. While carrying a load from a storage cooler to Newcomb’s trailer, a forklift operator employed by Spring Creek ran into Newcomb, who was standing on the loading dock by his truck. Newcomb suffered severe injuries to his head

and is now disabled and unable to work. He and his wife filed suit against Spring Creek in federal court, invoking the court’s diversity jurisdiction.

The district court granted summary judgment to Spring Creek, finding that Newcomb’s knowledge of the hazard on the premises was equal to or greater than Spring Creek’s and thus he had assumed the risk of the injury. We disagree. As we see it, the trial court has misapprehended controlling Georgia tort law which we are Erie-bound to follow. Newcomb traveled under two theories of liability in the district court -- premises liability and respondeat superior. The equal-or-superior-knowledge rule applies only to premises liability claims; the extent of Newcomb’s prior knowledge of the hazard posed by the operation of the forklift, whatever that may have been, does not bar recovery from Spring Creek on the theory that it is liable for its employees acts of negligence under the doctrine of respondeat superior. And, if that rule does not apply, the assumption-of-risk defense cannot defeat Newcomb’s negligence claim on summary judgment under Georgia law. We, therefore, reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion.

I.

Defendant Spring Creek Cooler, Inc., harvests and sells sweet corn. Spring Creek harvests corn from the field, places it in crates, stacks the crates onto pallets, then transports the pallets in flatbed trucks to a separate facility where the corn is washed and doused with cool water. The pallets of corn, after being cleaned and cooled, are stored in a large cooler measuring about 140 feet by 70 feet. The final step in the process is transferring the pallets -- each of which contains about 2100 pounds of corn in 42 crates -- from the storage cooler to refrigerated trucks for distribution.

On June 20, 2013, Michael Newcomb drove his truck to Spring Creek’s Brinson, Georgia, facility to pick up a load of corn. After he parked his truck, he received documents explaining that he was "responsible for the count and condition of [the] load," an instruction that was also written on a sign taped to the office window. Newcomb then opened the doors to his truck’s trailer, backed it up to the loading dock, and prepared the trailer to be loaded. As he waited for the truck to be loaded, Newcomb bought a single crate of corn for himself at the office window. After Newcomb placed the order, he was directed back out onto the loading dock where the crate was delivered by a worker.

Throughout the loading process, Newcomb remained on the dock near the trailer, so that he could count the crates and "pulp" the corn -- that is, take its temperature -- as it was being loaded. Two signs were placed on the loading dock: one said, "Restricted Area -- Forklift in Operation," and the other read, "Employees Only Past This Point." Newcomb said that he assumed the "restricted area" sign didn’t apply to him -- since he was responsible for the count and condition of the load, he had to be present on the dock -- and he said that he didn’t pass the "employees only" sign, which was posted outside an area where office work was performed.

Over the course of about an hour, a Spring Creek employee named Ronald Smalls transported pallets of corn from the cooler to the trailer via forklift, two pallets at a time. Smalls drove the forklift forward with the pallets loaded in front of him, which at least partially blocked his visibility. Each time, Smalls drove in a loop from the storage cooler across the warehouse floor, stopping short of Newcomb’s trailer before lining up directly behind it to enter and unload the pallets in the truck. Newcomb stood to the right of the trailer. On the fifth trip to the trailer, Smalls did not stop or straighten out the forklift like he did the first four times. Instead he continued driving his forklift directly toward Newcomb, who remained on the loading dock. When he realized Smalls was heading in his direction, Newcomb unsuccessfully attempted to evade the collision and was struck with the crates stacked on one of the pallets carried on the forklift.

Newcomb was thrown from the loading dock and his head hit a metal hinge on the corner of his trailer. He suffered a fractured skull

and a cerebral brain fluid leak, which required surgery. Newcomb is now disabled and unable to work.

Michael and his wife Kathy Newcomb filed this lawsuit against Spring Creek and Smalls, the forklift operator, in the United States District Court for the Middle District of Georgia.¹ Newcomb claimed that Smalls negligently struck him with the forklift and that Spring Creek was negligent in hiring, supervising, and retaining Smalls as a driver. He asserted that Spring Creek was liable for Smalls’ negligence under the doctrine of respondeat superior. Newcomb also alleged that Spring Creek "was negligent in failing to protect invitees from the hazard posed by its forklift drivers and failing to keep the premises safe for invitees." Newcomb asked for damages for medical expenses, lost wages, pain and suffering, and loss of consortium.

Spring Creek moved for summary judgment on both claims. The district court first granted the motion as to the negligent hiring and supervision claim. Spring Creek had admitted that the respondeat superior doctrine applied, and under Georgia law a negligent hiring claim is deemed duplicative of a respondeat superior negligence claim unless the plaintiff seeks punitive damages from the employer. See Mastec N. Am., Inc. v. Wilson, 325 Ga.App. 863, 755 S.E.2d 257, 259 (2014). As for the simple negligence claim, the district court held that Newcomb "had as much, if not more, knowledge than Spring Creek and voluntarily remained in the path of the forklift," and therefore he had "assume[d] the risk and dangers incident to the known condition." Even taking the facts in the light most favorable to Newcomb, the court concluded that he "knew of the risk posed by the manner in which Smalls was driving the forklift" and he knew "at the time that Smalls’ view was obstructed." His choice to remain on the loading dock therefore constituted assumption of the risk, and so Spring Creek was entitled to summary judgment.

This timely appeal followed.

II.

On appeal, Newcomb argues that the district court erred in granting summary judgment on his negligence claim. We review a grant of summary judgment de novo, applying the same standard as the district court. Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). We must "view all of the evidence in a light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor." Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 342 (11th Cir. 2012) (quotation omitted). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We are Erie-bound to apply Georgia’s substantive law in this diversity action. See Federated Rural Elec. Ins. Exch. v. R.D. Moody & Assocs., Inc., 468 F.3d 1322, 1325 (11th Cir. 2006) (per curiam).

To decide the ultimate issue of whether the district court was correct to grant summary judgment, we are required to address a preliminary question: What is the appropriate body of Georgia tort law to apply to this case? Newcomb’s negligence claim traveled on two distinct theories of liability. He claimed first that Spring Creek "was negligent in failing to protect invitees from the hazard posed by its forklift drivers and failing to keep the premises safe for invitees," and second that Spring Creek "is responsible for the conduct of [the forklift driver] under the doctrine of respondeat superior." Compl. ¶¶ 32, 35. Under controlling state law, these theories involve different duties owed to Newcomb and require different analyses. If this is viewed as a premises liability case, the scope of our review is narrow: the question is whether the district court was correct in determining that, viewing the facts in the light most favorable to Newcomb, he had knowledge equal or superior to Spring Creek’s regarding the hazard on the premises. But if this is viewed as an instance of ordinary negligence that happens to have taken place on the defendant’s premises, the equal-or-superior-knowledge rule simply would not apply.

Georgia’s courts have plainly recognized the distinction "between negligence cases where a condition on the premises causes injury to someone and those where an employee’s active negligence causes injury to someone." Byrom v. Douglas Hosp., Inc., 338 Ga.App. 768, 792 S.E.2d 404, 408 (2016) ; see also Lipham v. Federated Dep't Stores, Inc., 263 Ga. 865, 440 S.E.2d 193, 194 (1994). The former set of cases are premised on the duty of owners and occupiers of land to keep the premises safe for visitors. See Ga. Code Ann. § 51-3-1. The ...