Rossville Apartments Co. v. Britton

• Decision Date: 10 March 1986
• Docket Number: No. 71343,71343
• Citation: Rossville Apartments Co. v. Britton, 342 S.E.2d 504, 178 Ga.App. 194 (Ga. App. 1986)
• Parties: ROSSVILLE APARTMENTS COMPANY et al. v. BRITTON et al.
• Court: Georgia Court of Appeals

Page 504

342 S.E.2d 504

178 Ga.App. 194

ROSSVILLE APARTMENTS COMPANY et al. v. BRITTON et al.

No. 71343.

Court of Appeals of Georgia.

March 10, 1986.

David W. Noblit, Chattanooga, Tenn., for appellants.

Larry D. Ruskaup, R. Stephen Tingle, Rossville, Michael M. Raulston, Chattanooga, Tenn., for appellees.

BENHAM, Judge.

Appellants, the owners of the Rossville Apartments, and its managing agents, City Housing Corporation, were defendants in a personal injury action filed against them by appellees Charles and Velda Britton, who were tenants of the apartment complex. The Brittons alleged that their three-year-old daughter suffered an injury to her foot when a dumpster owned by the apartment complex fell on it. The child's parents sued on their own behalf for medical expenses incurred, loss of the child's services, and punitive damages. A jury returned a verdict of $10,000 actual damages and $10,000 punitive damages against appellants, who seek a reversal of the judgment.

1. Appellants first contend that the trial court erred in failing to sustain their motion for directed verdict at the close of the evidence on the punitive damages issue, since there was no material evidence of aggravating circumstances. We agree. OCGA § 51-12-5 permits a jury to award punitive (exemplary) damages "[i]n a tort action in which there are aggravating circumstances, in either the act or the intention ..." It is well established that that language means such damages "cannot be imposed in any case unless there is wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. [Cit.]" BLI Constr. Co. v. Debari, 135 Ga.App. 299, 301, 217 S.E.2d 426 (1975).

At trial, the evidence developed as follows: The trash dumpsters appellants purchased for use at the apartment complex were metal containers on wheels, wider at the top than at the bottom. Appellants, on their own initiative, had additional braces welded onto the dumpsters to make them more stable; the braces made it impossible to turn the dumpsters over from the front. From time to time the braces and wheels would break due to improper handling by the city dump trucks; when such damage occurred, appellants had the braces and wheels rewelded and repaired. The resident manager testified that she thought the dumpsters were "inherently dangerous because of their design," but there was no expert testimony to that effect. Moreover, there was no evidence that in the several years during which the dumpsters had been used at the complex, an injury had occurred involving any of the dumpsters, empty or full, braced or unbraced, until the one involving appellees' child.

Further testimony revealed that when the offending dumpster was initially damaged, appellants' maintenance man removed it from its concrete pad, placed it in an area from which children were restricted, turned it upside down to further stabilize it until it could be repaired, and later wired it shut to prevent its use as a waste receptacle. It took two men to maneuver the dumpster to the upside-down position; a city refuse truck subsequently turned it rightside up during a Friday garbage pickup. The maintenance man did not notice the dumpster's change of position until late that evening; when he did notice it, he did not think that in that position the dumpster, which weighed 1,500 pounds and had missing and broken wheels, could be moved by anyone who was the size of the three-year-old victim or that children would be playing in the area, even though he had seen children playing on dumpsters before. The child was injured on Sunday, two days later.

The child's mother testified that she had seen the dumpster in its state of disrepair and that it appeared "rickety"; that she knew, generally, that dumpsters were dangerous but she did not think this one was dangerous as far as her three-year-old daughter was concerned because she did not think her daughter would be in that area; and that she had been warned to stay away from dumpsters. The child's mother allowed her and her four-year-old sister to traverse the 110-unit apartment complex grounds on foot, accompanied only by her 10-year-old son, who was on his bicycle, to visit their grandparents who lived in another building in the complex. The child's mother was not aware that an accident had occurred until a neighbor's daughter brought the injured child home.

None of the previously mentioned characteristics on which punitive damages must be based is manifested by the conduct of the appellants in this case. While we deeply regret the fact that appellees' child was injured, there was no evidence of wilful misconduct, fraud, or any other factors to support a punitive damage award against appellants in any amount. Compare Dempsey Bros. Dairies v. Blalock, 173 Ga.App. 7(1), 325 S.E.2d 410 (1984). We cannot allow appellants to be punished for failing to meet a higher standard of care than is imposed on the child's own parents, who...