Simmons v. Classic City Beverages, Inc.

• Citation: 220 S.E.2d 734,136 Ga.App. 150
• Decision Date: 15 October 1975
• Docket Number: No. 51163,No. 3,51163,3
• Parties: A. E. SIMMONS v. CLASSIC CITY BEVERAGES, INC., et al
• Court: United States Court of Appeals (Georgia)

Page 734

220 S.E.2d 734

136 Ga.App. 150

A. E. SIMMONS v. CLASSIC CITY BEVERAGES, INC., et al.

No. 51163.

Court of Appeals of Georgia, Division No. 3.

Oct. 15, 1975.

Cook, Pleger & Noell, J. Vincent Cook, Henry G. Garrard, III, Athens, for appellant.

Erwin, Epting, Gibson & McLeod, Gary Blasingame, Athens, Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Edward C. Stone, Atlanta, for appellees.

EVANS, Judge.

Aubrey Eugene Simmons injured his back while working as a deliveryman for a beer distributor. His duties included lifting and placing kegs of beer in a refrigerator at an establishment in Athens, Clarke County, Georgia, known as Pedro's. (It was later learned that Pedro's legal name was Manuel Leon, d/b/a Manuel's Mexican Foods.) He contends that Classic City Beverages, Inc., another beer distributor, had installed a third keg of beer in a two-door draft beer refrigerator, and the kegs were of different size and shape than those plaintiff was handling, and the new kegs were heavier. As the refrigerator was designed to hold only two kegs of beer at one time, he found it necessary to move the beer keg of Classic City, which resulted in injury to his back.

Simmons sued Classic City and Manuel Leon (Pedro's) and contended they were negligent in installing a third keg of draft beer in a two-keg cooler, thus requiring him to lift the newer and heavier kegs to make way for the kegs of his employer, whereby his back was injured.

After discovery, both defendants moved for summary judgment and same was granted. Plaintiff appeals. Held:

1. A party opposing a motion for summary judgment is to be given the benefit of all reasonable doubts in determining whether genuine issues of fact exist. The lower court in construing the evidence must give the party opposing the motion the benefit of all favorable inferences that may be reasonably drawn from the evidence. Capital Auto Co. v. General Motors Acceptance Corp., 119 Ga.App. 186(1), 166 S.E.2d 584; Wood v. Brunswick Pulp and Paper Co., 119 Ga.App. 880, 169 S.E.2d 403; Candler General Hospital, Inc. v. Purvis, 123 Ga.App. 334, 335, 181 S.E.2d 77.

2. It is the general rule that ordinarily issues of negligence are not susceptible to summary adjudication, but should be resolved by a trial before a jury. Southern Ry. Co. v. Floyd, 119 Ga.App. 605, 606, 168 S.E.2d 197; Rich's, Inc. v. Waters, 129 Ga.App. 305, 199 S.E.2d 623. See also in this connection, Wakefield v. A. R. Winter Co., 121 Ga.App. 259, 174 S.E.2d 178, which clearly holds that issues of negligence including such relevant issues as assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence, and comparative negligence are also ordinarily not susceptible to summary adjudication either for or against the complainant.

3. The sole issues here are whether defendants were negligent, and if so,...