O'Steen v. Rheem Mfg. Co., s. A89A1740

• Decision Date: 03 January 1990
• Docket Number: Nos. A89A1740,A89A1741,s. A89A1740
• Citation: 390 S.E.2d 248,194 Ga.App. 240
• Parties: O'STEEN v. RHEEM MANUFACTURING COMPANY. RHEEM MANUFACTURING CO. v. O'STEEN.
• Court: Georgia Court of Appeals

Page 248

390 S.E.2d 248

194 Ga.App. 240

O'STEEN v. RHEEM MANUFACTURING COMPANY.

RHEEM MANUFACTURING CO. v. O'STEEN.

Nos. A89A1740, A89A1741.

Court of Appeals of Georgia.

Jan. 3, 1990.

Rehearing Denied Jan. 17, 1990.

Certiorari Denied in No. A89A1740 March 1, 1990.

Reynolds & McArthur, Charles M. Cork III, O. Wendell Horne, III, Macon, for appellant.

Jones, Cork & Miller, Carr G. Dodson, Bradley J. Survant, Macon, for appellee.

DEEN, Presiding Judge.

On April 4, 1985, Ms. O'Steen, appellant in Case No. A89A1740, was driving along the roadway which traversed the parking lot owned by, and located adjacent to the plant of, her employer, appellee/cross-appellant Rheem Manufacturing Company (Rheem). As she approached a side road (also within the parking lot), a car driven by a fellow employee (not a party to the instant appeal) entered the road on which she was travelling and collided with her vehicle. In December 1986, after her workers' compensation claim was denied under the "lunch break" rule, Ms. O'Steen brought an action against Rheem and the driver of the other vehicle, alleging against the latter negligence in failing to keep a proper lookout, failure to yield to a vehicle on his right, and failure to maintain control of his vehicle; and against Rheem, negligence in permitting large trucks to be parked where they blocked the view of the intersection and failing to post traffic signs and markers to indicate right-of-way, etc. Rheem unsuccessfully moved for summary judgment, arguing primarily that O'Steen, having worked at the site for more than six years and having passed through the intersection in question more than 5,000 times, had knowledge of the purported hazard equal to or greater than that of her employer. In January 1987, before the case actually went to trial, O'Steen suffered a job-related injury, and damages for this injury were also sought in conjunction with the 1985 incident.

Upon trial, a Fulton County jury awarded O'Steen damages of $217,587. The trial court granted judgment notwithstanding the verdict in favor of Rheem, and both parties appeal. In Case No. A89A1740 Ms. O'Steen enumerates seven errors having to do with the "equal knowledge rule," both facially and in its application to the instant case, alleging that the "equal knowledge rule" should have barred the award of judgment n.o.v. In Case No. A89A1741, Rheem enumerates as error the trial court's denial of its motion for directed verdict (made at the close of plaintiff O'Steen's case) on the ground that the Workers' Compensation Act barred plaintiff's recovery of damages for expenses incurred on or after January 15, 1987; and the subsequent granting of a directed verdict against Rheem on that issue. Rheem also enumerates as error the trial court's failure to give seven jury instructions it had requested. Held:

1. Chiefly at issue in the instant case is the applicability vel non of the "superior/equal knowledge rule." Rheem argues that this rule absolves the company of liability, inasmuch as O'Steen had passed through the crucial intersection at least 5,000 times during the course of her employment and therefore was well aware of any potential hazard that might have existed. O'Steen, on the other hand, argues that the rule should be abolished or held inapplicable to the instant cases.

In Clark v. Carla Gay Dress Co., 178 Ga.App. 157, 342 S.E.2d 468 (1986), the "superior/equal knowledge rule" was invoked as a defense against an employee's allegation that the employer had been negligent in allowing on the business premises her apparently mild-mannered estranged husband, who suddenly pulled a gun and shot her. Although so different factually from the instant cases as not to be apposite in its particulars, Carla Gay nevertheless incorporates so comprehensive and well-reasoned an analysis of the "superior/equal knowledge rule" that it serves well to point the way to the proper disposition of the cases at bar. We quote at length from pages 158-160, 342 S.E.2d 468:

"We have stated the rule many times with respect to defects, foreign substances on floors, and static dangerous conditions, that '(t)he basis of the proprietor's liability is his superior knowledge and if his invitee [or licensee] knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee [or licensee] has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition. (Cits.)' Hunt v. Thomasville Baseball Co., 80 Ga.App. 572, 573 (56 SE2d 828). See Hadaway v. Cooner Enterprises, 172 Ga.App. 113, 114 (321 SE2d 830). ¹

"In such cases, liability attaches when the perilous condition is not known to the invitee and is known to the proprietor, or is discoverable by the proprietor in the exercise of ordinary care to inspect and keep the premises safe. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). If the invitee [or licensee] is as aware of the danger as is the proprietor, but proceeds in spite of such knowledge, he assumes the risks and dangers incident to the known conditions (Telligman v. Monumental Properties, 161 Ga.App. 13, 14 (288 SE2d 846)), and is therefore deemed guilty of a failure to exercise ordinary care for himself and cannot recover. OCGA § 51-11-7; Brownlow v. Six Flags Over Ga., 172 Ga.App. 242, 243 (322 SE2d 548); Rogers v. Atlanta Enterprises, 89 Ga.App. 903, 906 (81 SE2d 721).

"The superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant's negligence with the exercise of ordinary care. It is applicable in those cases where the proprietor allows a dangerous condition to exist, including cases where the alleged dangerous condition is one created by the activities of third persons, so long as the condition is one which the invitee can expect equally with the host, or come to know of, and therefore must anticipate the danger. In other words, the condition even if created by third parties must be such that the invitee can...