Rubio v. Davis

• Decision Date: 20 March 1998
• Docket Number: No. A97A2120, No. A97A2121.
• Parties: RUBIO et al. v. DAVIS et al. DAVIS et al. v. RUBIO et al.
• Court: Georgia Court of Appeals

500 S.E.2d 367

231 Ga. App. 425

RUBIO et al. v. DAVIS et al.

DAVIS et al. v. RUBIO et al.

Nos. A97A2120, A97A2121.

Court of Appeals of Georgia.

March 20, 1998.

Mitchell M. Shook, Vidalia, for appellants.

Reinhardt, Whitley & Wilmot, Glenn Whitley, Tifton, J. Reese Franklin, Nashville, for appellees.

McMURRAY, Presiding Judge.

These related appeals arise from an incident during which three-year-old Jacob Rubio, the son of migrant farm workers Joel and Rosa Rubio, was seriously injured by a conveyor belt in Julian Wood and Lamar Davis' packing shed. The Rubios brought this action against defendants Wood and Davis, who were partners in a watermelon farming operation when Jacob was injured.¹

The evidence adduced at trial, construed to support the Rubios' claims, reveals the following: Defendants Wood and Davis hired Ramiro Ozuna to recruit and supervise a crew of workers to harvest watermelons. Because Wood and Davis instructed Ozuna that children were not allowed in the fields or the packing shed, Ozuna set up a nursery for the laborers' children about 100 yards from defendants' packing shed. A woman was hired to watch the children. She was paid $7 a day for her efforts.

On the morning of June 17, 1994, the Rubios arrived at defendants' farming operation with their three children looking for work. Ozuna hired Mr. Rubio that morning and asked for Mrs. Rubio's help later that afternoon. After agreeing to work, Mrs. Rubio placed her children in the farm's nursery and began laboring in defendants' packing shed, near a large conveyor belt. While the Rubios were working, some of the migrant workers' children entered the packing shed and began crushing cans under the conveyor belt's strong motorized mechanisms. While playing, three-year-old Jacob Rubio got caught in the conveyor belt. His arm was instantly amputated.

The trial court declared a mistrial because the jury was unable to reach a verdict. The Rubios appealed in Case No. A97A2120 after the trial court granted defendants' joint motion for judgment notwithstanding the mistrial. Wood and Davis filed a cross-appeal in Case No. A97A2121. Held:

Case No. A97A2120

1. The Rubios contend the trial court erred in granting defendants' motion for judgment notwithstanding the mistrial, arguing that genuine issues of material fact remain as to their alternative negligence and attractive nuisance claims. These alternative theories of liability are relevant because the evidence regarding Jacob Rubio's status as a trespasser, licensee or invitee is hotly disputed.

"`A motion for a judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where "(t)here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom shall demand a particular verdict." (OCGA § 9-11-50(a)).' Gordon v. Carter, 126 Ga.App. 343, 344(1), 190 S.E.2d 570. See also Findley v. McDaniel, 158 Ga.App. 445, 446(1), 280 S.E.2d 858." Goggin v. Goldman, 209 Ga. App. 251, 252, 433 S.E.2d 85.

In the case sub judice, the Rubios contend Jacob must have escaped from the nursery, while defendants contend Mrs. Rubio brought the child into the shed.² Frank Gillis, a licensed private investigator, testified that he interviewed defendant Julian Wood and that Wood told him that, on the day of the incident, several children entered the shed to get out of the rain. He also stated that Wood "saw several children take metal cans ... and put them in this conveyor belt and the conveyor belt was crushing them.... Then he said the Rubio child walked up and put one in the conveyor belt and his arm got caught in the conveyor belt." Wood denies making any such statement, claiming that Gillis' testimony was "fabricated." Defendants presented testimony that Wood was not present in the shed at the time of the accident, that they did not know any children were in the shed, and that it was not raining the day of the incident. These circumstances raise genuine issues of material fact regarding Jacob Rubio's status as a trespasser, licensee or invitee.

The dissent's reliance on Biggs v. Brannon Square Assoc., 174 Ga.App. 13, 329 S.E.2d 239, for suggesting the exclusion of attractive nuisance liability is misplaced. In Biggs, this Court excluded attractive nuisance liability because of conclusive proof that the injured child was a licensee. Id. at 14(1), 329 S.E.2d 239. As demonstrated above, such undisputed proof does not exist in the case sub judice. Under such circumstances, a jury (under proper instructions) should resolve Jacob Rubio's status as a trespasser, licensee, or invitee, and then consider defendants' liability under the appropriate premises liability standard.³ Thus, if a jury finds that Jacob Rubio was a licensee, then defendants' liability would be measured by the standards restated in Biggs v. Brannon Square Assoc., 174 Ga.App. 13, 16(2), 329 S.E.2d 239, supra. If a jury decides Jacob Rubio was an invitee, then defendants' liability would be measured by the ordinary care standard prescribed in OCGA § 51-3-1. But, if a jury finds that Jacob Rubio was trespassing in defendants' packing shed when his arm was amputated, defendants' liability must be measured according to Georgia's attractive nuisance doctrine, as set out in Gregory v. Johnson, 249 Ga. 151, 289 S.E.2d 232.

The dissent's reliance on Johnson v. Lanier, 140 Ga.App. 522, 524(4), 231 S.E.2d 428, for suggesting that defendants' watermelon conveyor belt is not an "attractive nuisance" is also misplaced. Lanier holds, as a matter of public policy, that a properly functioning farm tractor is not an inherently dangerous instrumentality so as to invoke attractive nuisance liability. Id. The problem with this 1976 decision, however, is that it does not apply the five-part foreseeability test which the Supreme Court of Georgia prescribed in 1982 in Gregory v. Johnson, 249 Ga. 151, 154, 289 S.E.2d 232, supra, for determining "attractive nuisance" liability.

"`A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.' [Restatement of the Law Second, Torts, § 339 (1965) ]." Gregory v. Johnson, 249 Ga. 151, 154, 289 S.E.2d 232, supra,

In the case sub judice, there is proof that defendants were aware that their conveyor belt was an attraction for their migrant workers' young children; that this motorized equipment posed serious risks of personal injury or death to these children; that Jacob Rubio, because of his youth, could not appreciate the risks involved in playing with the conveyor belt; that the utility to defendants of maintaining the conveyor belt and the burden of eliminating the danger was slight as compared with the risk to the children involved; and that defendants failed to take any steps to eliminate the danger or otherwise to protect the children. These circumstances raise genuine issues of material fact as to defendants' potential liability under the doctrine of attractive nuisance. Gregory v. Johnson, 249 Ga. 151, 154, 289 S.E.2d 232, supra. Consequently, the trial court erred in granting defendants' motion for judgment notwithstanding the mistrial.

2. In a second enumeration of error, the Rubios contend proof of defendants' subsequent safety alterations to their conveyor belt should have been admitted into evidence at trial. We do not agree. The trial court did not abuse its discretion in excluding this proof based on Georgia's strong public policy against the admission of such evidence. See Royals v. Ga. Peace Officer Standards, etc., Council, 222 Ga.App. 400, 401(1), 474 S.E.2d 220.

Case No. A97A2121

3. Davis and Wood contend the trial court erred in its instructions to the jury. The charge on imputed negligence enumerated as error was taken verbatim from the Council of Superior Court Judges chargebook, was adjusted to the evidence, and was not error. Council of Superior Court Judges, Suggested Pattern Jury Charges, Vol. I: Civil Cases, p. 238(P)(2). If defendants wished the jury to be charged on the related principles outlined in Taylor v. McClendon, 205 Ga.App. 390, 422 S.E.2d 440, it was their responsibility to submit an appropriate request to charge—which they did not.

The charge on future earnings as an item of damages was not error even in the absence of evidence from which a jury could calculate the amount of any future earnings loss. The general requirement that some evidence showing earnings capability both before and after the injury is not applicable when the injured party is too young to have a work or earnings history. In such cases a different rule applies; the amount of damages awardable for a permanent injury to a young child rests in the sound discretion of the jury, to be exercised in the light of the jury's own common observation and experience, in order to compensate the plaintiff for the injury actually sustained. Murray v. Sanford, 226 Ga.App. 591, 592, 487 S.E.2d 135.

Nor did the trial court err by instructing the jury on both...