Rowe v. Tyson
| Decision Date | 12 October 2021 |
| Docket Number | A21A1091 |
| Citation | 361 Ga.App. 885,864 S.E.2d 170 |
| Parties | ROWE d/b/a Shellmar Tree Service v. TYSON. |
| Court | Georgia Court of Appeals |
Walter Douglas Adams, Brunswick, for Appellant.
Brent J. Savage, Savannah, Zachary Russell Sprouse, for Appellee.
Howard Tyson filed a lawsuit against Hank "Bo" Rowe d/b/a Shellmar Tree Service alleging that he was significantly injured while working for Rowe on a tree removal job.1 A jury awarded Tyson $4,250,000, and Rowe filed this appeal. Rowe claims that the trial court erred by admitting evidence, by refusing to give his requested jury instructions, and by denying his motion for a judgment notwithstanding the verdict. Finding no error we affirm.
1. Rowe claims that the trial court erred by denying his motion for judgment notwithstanding the verdict, or, alternatively, his motion for new trial. In reviewing an order for a motion for judgment notwithstanding the verdict, an appellate court must decide whether all the evidence demanded judgment n.o.v., or whether there was some evidence supporting the verdict of the jury. See Ogletree v. Navistar Intl. Transp. Corp. , 271 Ga. 644, 647, 522 S.E.2d 467 (1999). "Where there is any evidence upon which the verdict can be based, the jury is free to disbelieve whatever facts are inconsistent with their conclusion and the court cannot substitute its conclusion for that of the jury and enter a judgment notwithstanding the verdict." Id. (citation and punctuation omitted). In our review, we construe the evidence at trial in the light most favorable to the prevailing party. See Ga. Trails & Rentals v. Rogers , 359 Ga. App. 207, 215 (3), 855 S.E.2d 103 (2021).
So viewed, the evidence at trial showed the following. In 2011 or 2012, Tyson began working for Rowe's company, Shellmar Tree Service. Tyson testified that he never received job training regarding cutting down trees and that his only responsibility was to pick up tree limbs that had fallen to the ground. Moreover, Tyson was never instructed on where to stand when other employees were cutting down trees.
On September 11, 2014, Rowe, Tyson and the rest of Rowe's crew went to Sea Island to cut down trees at a residential property. While the crew was cutting down an 80 foot tall tree, Tyson was standing approximately 30 or 40 feet away in the opposite direction of where the crew intended the tree to fall. Chandler Joseph was on the ground next to the tree using a chainsaw, and Jonathan Howard was driving a tractor which was tied to the tree to guide it during the fall. Rowe was riding in the tractor and guiding the tension on the rope between the tree and the tractor.
As the crew was pulling the tree down, Tyson was hit and fell to the ground. When Tyson regained his ability to breathe, he asked Rowe what had happened, and Rowe said that Tyson had been hit by a "hang limb" from the top of the tree. Tyson observed a pine limb near him on the ground.
An emergency responder testified that he arrived to find Tyson "lying facedown next to a tree branch beneath a tree." The responder was told that Tyson had been hit by a falling tree limb. The injury rendered Tyson a quadriplegic, and his doctor opined that he will likely never make a full recovery.
At the time of the incident, Tyson was not wearing a hard hat. He testified that he would wear a hard hat if he was told to do so, but that he would not wear one otherwise and that there were no hard hats in the work truck.
An arborist testified that Tyson was standing too close to the tree at the time of the incident. While Tyson was standing approximately 30-40 feet away from the tree, he should have been 180 feet away. The arborist opined that Tyson's injury was preventable.
Tyson claimed that Rowe negligently failed to provide a safe work environment. "To recover for injuries caused by another's negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages." Smith v. Found , 343 Ga. App. 816, 818 (1) (a), 806 S.E.2d 287 (2017) (citation and punctuation omitted). Rowe, Tyson's employer, was at the location at the time of the incident. He could see Tyson standing 30 or 40 feet from the bottom of the tree, and Tyson was not wearing a hard hat. Rowe had far more experience cutting down trees than Tyson, who had only ever picked up tree limbs off the ground.2 Moreover, evidence was presented that Tyson had been hit by a "hang limb" from the top of the tree and subsequently was rendered quadriplegic.
Rowe points to evidence that another tree removal company was using a wood chipper nearby when the incident occurred, to suggest that Tyson had been hit by wood from the chipper, instead of a hang limb. However, this evidence did not demand the grant of Rowe's j.n.o.v. See Ogletree , supra. Whether it was reasonably foreseeable that Tyson's injury could occur, whether Tyson would have avoided the injury had Rowe required him to undergo safety training, wear a hard hat, and/or move further away from the tree, and whether Tyson exercised ordinary care, are questions of fact on which the jury could differ. Given the evidence, the jury was authorized to find that when the tree was cut down, Rowe should have reasonably known or anticipated that Tyson could be injured in the process. As such, the trial court did not err in denying Rowe's j.n.o.v. See generally Champion v. Pilgrim's Pride Corp. of Delaware , 286 Ga. App. 334, 337-338 (b), 649 S.E.2d 329 (2007) ().
Rowe, alternatively, moved for a new trial, but the trial court could only grant that motion if, in the exercise of its discretion, it found that the jury's verdict was against the weight of the evidence. See OCGA §§ 5-5-20, 5-5-21 ; Williamson v. Strickland & Smith , 263 Ga. App. 431, 433 (1), 587 S.E.2d 876 (2003). When, as here, a trial court denies such a motion, Id. (citation and punctuation omitted). As discussed above, there was evidence to support the jury's verdict. Therefore, we affirm the trial court's denial of Rowe's motion for new trial.
2. Rowe claims that the trial court erred by admitting Tyson's medical bills and a summary of those bills into evidence. "The decision to admit or exclude evidence is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion." Cheney v. Lawson , 333 Ga. App. 180, 182 (1), 773 S.E.2d 297 (2015) (citation and punctuation omitted).
Beverly Jones, Tyson's partner of 27 years, testified that she provides day-to-day care for Tyson by performing tasks such as feeding and bathing him, and moving him to avoid bedsores
. She also took Tyson to the Shepherd Center for his care. Jones authenticated Tyson's medical bills, testifying that she was generally familiar with the bills as the person who has taken care of him for years. She testified that Tyson's medical records were from his hospital stays, the Shepherd Center, and his rehabilitation.
Under OCGA § 24-9-921 (a), a person responsible for care of the patient "shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury ... involved in the subject of litigation at trial ...." Furthermore, OCGA § 24-9-921 (b).
Jones is responsible for the care of Tyson and identified the bills as expenses incurred in Tyson's treatment for his underlying injury. And counsel for Tyson had the opportunity to cross-examine Jones about the bills and summary. See Arnsdorff v. Fortner , 276 Ga. App. 1, 6-7 (3), 622 S.E.2d 395 (2005) (physical precedent only) (trial court did not err in admitting medical bill summary when foundation regarding bills was laid that expenses were incurred as a result of the accident and defendant was not denied the opportunity to cross-examine as to the amount of medical expenses).
Furthermore, the parties stipulated that the medical bills and summary would be admitted into evidence in the pretrial order. As such, the trial court did not abuse its discretion in admitting the medical bills and summary into evidence. See Hillman v. ALDI, 349 Ga. App. 432, 442 (2), 825 S.E.2d 870 (2019) (). Compare Cheney , supra at 181-183 (1), 773 S.E.2d 297 (...
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