Powley v. Precision Plumbing Co.

• Decision Date: 23 September 1996
• Docket Number: No. A96A1012,A96A1012
• Citation: 222 Ga.App. 848,476 S.E.2d 777
• Parties: POWLEY et al. v. PRECISION PLUMBING COMPANY et al.
• Court: Georgia Court of Appeals

Page 777

476 S.E.2d 777

222 Ga.App. 848

POWLEY et al. v. PRECISION PLUMBING COMPANY et al.

No. A96A1012.

Court of Appeals of Georgia.

Sept. 23, 1996.

Julian A. Mack, La Grange, for appellants.

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, Gregory T. Carter, Brunswick, for appellees.

HAROLD R. BANKE, Senior Appellate Judge.

Jean F. Powley and William E. Powley, the parents of a minor, Mark Powley (collectively "Powley"), brought a personal injury action against Precision Plumbing Company ("Precision") and its employee Richard Mixon to recover for damages allegedly sustained when Mark Powley collided with a piece of galvanized pipe protruding from the bed of Precision's truck. Asserting four errors, Powley appeals the grant of summary judgment in favor of Precision and Mixon.

To prevail at summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the non-movant, warrant summary judgment as a matter of law. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Viewed in that light, the evidence was as follows. At about dusk, Mark Powley, age 11, was throwing a frisbee with Mixon's son and some friends on a public street in front of Mixon's residence. As Mark Powley attempted to catch the frisbee, he slipped on some sand, fell, and impaled his face on a length of pipe which protruded beyond the rear bumper of a truck parked by Mixon, an employee of Precision.

Powley alleged that Mixon negligently and illegally parked Precision's truck partly on the street pavement and partly on the shoulder, and that Mixon had negligently left the galvanized pipe jutting out past the rear edge of the truck. Mark Powley testified that the pipe protruded two feet beyond the tailgate and that he never saw anything sticking out from the bed of the truck or over the tailgate prior to falling into the pipe.

The trial court granted summary judgment finding that the pipe did not project far enough beyond the truck bed to require a flag or any sort of marking device. It further concluded that Powley was, at most, a licensee on Mixon's premises, that Mixon's liability was limited to only wilful or wanton injury under OCGA § 51-3-2(b), and that Powley had equal or superior knowledge of the presence of the truck. The court also determined that there was no evidence of a causal connection between the allegedly improper location of the truck and Powley's injuries. Held:

1. The trial court erred when it concluded that even if Mixon's actions constituted negligence, there was no causal connection between the allegedly improper location of the truck and Powley's injuries. See Jones v. Campbell, 198 Ga.App. 83, 85(2), 400 S.E.2d 364 (1990). In this case, Powley's evidence, if proven at trial, could show a causal connection between Mixon's acts and omissions and Mark Powley's injuries: 1) Mixon's failure to utilize the truck's elevated storage racks; 2) Mixon's failure to safely position the pipe within the confines of the truck and allowing it to jut dangerously out past the tailgate; 3) Mixon's failure to display a warning flag on the pipe if it, in fact, extended four feet or more past the truck bed (OCGA § 40-8-27); and 4) Mixon's failure to move the truck completely off the street into his yard or driveway. Also at issue is whether the protruding plumbing pipe became a dangerous instrumentality when Mixon parked the truck on a residential street where children often played.

Precision's reliance upon Jones, supra, is misplaced because in that case Jones failed to show any act or omission by Campbell that could have caused the defect at issue -- a suddenly appearing sinkhole arising next to an eroding stream embankment. Jones, 198 Ga.App. at 85-86, 400 S.E.2d 364. "Ordinarily proximate cause is not appropriate for summary adjudication. North v. Toco Hills, 160 Ga.App. 116, 119, 286 S.E.2d 346 (1981)." Jones, 198 Ga. App. at 86. Questions of negligence, diligence, and contributory negligence are reserved for jury determination except in plain and indisputable cases. Begin v. Ga. Championship Wrestling, 172 Ga.App. 293, 295, 322 S.E.2d 737 (1984). This is not such a case.

2. The trial court erred by relying exclusively on premises liability theory because it is disputed whether the incident at issue occurred on a public street or in Mixon's front yard. The threshold question is whether premises liability law even applies if the incident occurred off Mixon's property and no owner/invitee or licensee relationship existed between Mixon and Powley. See Keith v. Beard, 219 Ga.App. 190, 192(2), 464 S.E.2d 633 (1995) (physical precedent only, Court of Appeals Rule 33(a)).

In the event that premises liability analysis is inapplicable then Mixon owed Powley a duty of "ordinary care" or reasonable care under the circumstances. OCGA § 51-1-2. Whether Mixon's conduct met the standard of the reasonable person is a jury question. Charter Bldrs. v. Sims Crane Service, 150 Ga.App. 100, 102, 256 S.E.2d 678 (1979). See also, e.g., Shannon v. Walt Disney Productions, 156 Ga.App. 545, 275 S.E.2d 121 (1980).

3. The trial court erred in characterizing Mark Powley as a licensee because Powley's evidence created a disputed issue of material fact whether the collision occurred on or off Mixon's premises. See Division 2.

4. Even if Mark Powley was a licensee, summary judgment was improper. The trial court incorrectly determined that Mark Powley had equal or superior knowledge of the danger. "The superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant's negligence with the exercise of ordinary care." (Citation and punctuation omitted.) O'Steen v. Rheem Mfg. Co., 194 Ga.App. 240, 242(1), 390 S.E.2d 248 (1990). In O'Steen, a static condition case, we determined that O'Steen could not recover because she had equal knowledge of the allegedly dangerous intersection because she had passed through it more than 5,000 times over a six-year period. Id. at 240, 390 S.E.2d 248. In this case, Precision failed to show that Mark Powley had equal knowledge of the danger. Although it is undisputed that Mark Powley was aware of the presence of the parked truck, it is also undisputed that he never observed the truck's contents, it was dusk, and he was unable to see anything extending beyond the body of the pickup. Moreover, Mark Powley also testified that the truck was not parked where it was normally parked. The fact that Mark Powley had previously observed plumbing fixtures and pipes located on the truck in question does not negate his testimony that on this night he never saw anything extending beyond the rear of the truck. Compare Winchester v. Sun Valley-Atlanta Assoc., 206 Ga.App. 140, 424 S.E.2d 85 (1992) (static brick retaining wall extending the entire length of an open field was open, obvious, and in plain view of child running to retrieve ball). No evidence was presented that prior to his fall, Mark Powley knew of and appreciated the possible danger posed by the pipe. Compare Riley v. Brasunas, 210 Ga.App. 865, 867(1), 438 S.E.2d 113 (1993) (child social guest who knew of possible danger of falling from chin-up bar could not recover for fall); Evans v. Parker, 172 Ga.App. 416(1), 323 S.E.2d 276 (1984) (social guest could not recover for slip on ice in driveway, absent showing wilful and wanton conduct on the part of property owner).

Neither Powley's...