Stallings v. Cuttino

• Decision Date: 25 September 1992
• Docket Number: Nos. A92A1380,A92A1381,s. A92A1380
• Citation: 422 S.E.2d 921,205 Ga.App. 581
• Parties: STALLINGS v. CUTTINO et al. CUTTINO et al. v. STALLINGS.
• Court: Georgia Court of Appeals

Page 921

422 S.E.2d 921

205 Ga.App. 581

STALLINGS v. CUTTINO et al.

CUTTINO et al. v. STALLINGS.

Nos. A92A1380, A92A1381.

Court of Appeals of Georgia.

Sept. 25, 1992.

Irwin, Bladen, Baker & Russell, R. Chris Irwin, for appellant.

J. Steven Parker, for appellees.

POPE, Judge.

Plaintiffs, Benjamin Cuttino and his parents, Harold and Sally Cuttino, brought a negligence action against defendants, Scott Stallings and his parents, Robert and Shirley Stallings, for an eye injury Benjamin received while he and Scott were building a skateboard ramp at Scott's house. Defendants filed a motion for summary judgment, and plaintiffs moved to dismiss with prejudice their action against Shirley Stallings. The trial court granted summary judgment to defendant Robert Stallings but denied defendant Scott Stallings' motion for summary judgment. The trial court certified the denial of summary judgment for immediate review and this court granted Scott Stallings' application for interlocutory review. In Case No. A92A1380 Scott Stallings appeals from the denial of his motion for summary judgment. In Case No. A92A1381 defendants cross-appeal from the grant of summary judgment to defendant Robert Stallings.

Case No. A92A1380

1. Defendant Scott Stallings argues he was entitled to summary judgment in this case based on the affirmative defenses of assumption of the risk/avoidance of consequences.

As pertinent to this issue, and viewing the evidence in favor of plaintiffs, the opponents to summary judgment, see e.g., Moore v. Svc. Merchandise Co., 200 Ga.App. 463, 464, 408 S.E.2d 480 (1991), the record shows that Scott and Ben, who were both 14 years old at the time of the accident, decided to construct a skateboard ramp in Scott's backyard. They used old lumber and nails which were at the Stallings' residence. The boys took turns holding the pieces of wood together while the other would attempt to hammer in the nails, and both gave deposition testimony that the nails would sometimes "fly away" or "fly up" instead of going through the wood. At the time of the accident, Ben was holding the wood and Scott was hammering. Ben testified that because of the problem with the flying nails, he ducked his head and closed his eyes while Scott was hammering. Ben further testified Scott paused during the hammering and he thought Scott had finished with that nail. When he started to raise up his head, Scott hit the nail again and it flew up, striking Ben in the eye.

"The defense of assumption of risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that [he] understood and appreciated the risk therefrom; and (3) that [he] voluntarily exposed [himself] to that risk. Rainey v. City of East Point, 173 Ga.App. 893 (328 SE2d 567) (1985)." Cagle v. Thorpe, 193 Ga.App. 576 (1), 388 S.E.2d 533 (1989). See also, Hollingsworth v. Hollingsworth, 165 Ga.App. 319, 320, 301 S.E.2d 56 (1983). " 'In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.' Prosser, Law of Torts (4th Ed.) p. 440. 'In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances.' Prosser, supra, at 445; see Harper and James, Law of Torts, Vol. 2, Ch. XXI." Osburn v. Pilgrim, 246 Ga. 688, 695, 273 S.E.2d 118 (1980).

Ben Cuttino admitted in his deposition that he knew that using old wood and used nails was dangerous, but that he decided nevertheless to proceed with the project. Plaintiffs argue, however, assumption of the risk does not bar their claim of negligence because their primary allegation of negligence is that Scott was striking the nails with the hammer in a negligent manner. Specifically plaintiffs argue that Scott "negligently released the nail before driving it sufficiently deep into the wood to prevent it from flying, and then negligently struck the nail with a full blow." As to this allegation, Ben testified that he and Scott were striking the nail in the same manner (first tapping it lightly into the wood and then hitting it with a stronger blow so as to drive it completely into the wood), except that Scott was not tapping the nail as far into the wood as he was prior to hitting it with the harder blow. Ben opined that Scott "might have thought" the nail was in far enough prior to attempting to drive it in and that he did not say anything to Scott about the method he was using to hammer in the nails, and that he never suggested to Scott that he tap the nail in harder prior to attempting to drive it into the wood. Moreover, Ben admitted that a nail flew away while he was hammering (and presumably tapping the nail in harder) and that he never suggested to Scott to duck his head while he was hammering and Scott was holding the wood. Ben also testified that he never told Scott that he thought what they were doing was dangerous, although he himself thought it was "but not dangerous enough to stop."

" 'Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one's own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication ... where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.' ... [...