Sutton v. Sumner, A96A1791

Citation482 S.E.2d 486,224 Ga.App. 857
Decision Date26 February 1997
Docket NumberNo. A96A1791,A96A1791
Parties, 97 FCDR 1008 SUTTON et al. v. SUMNER.
CourtUnited States Court of Appeals (Georgia)

Dozier, Lee, Graham & Sikes, Lester Z. Dozier, Jr., Macon, for appellants.

Ellis & Easterlin, George R. Ellis, Jr., Americus, for appellee.

ANDREWS, Chief Judge.

Richard Sutton was injured while he was a spectator in the pit area at an automobile race held at Interstate Raceway, a business owned at the time by Ben Sumner. Sutton was hit and injured by a race car being towed by a wrecker in the pit area. He sued Sumner claiming the wrecker driver was Sumner's employee and that Sumner was vicariously liable for the injury caused by the driver's negligent operation of the wrecker. Sutton's wife brought a loss of consortium claim against Sumner based on the injury. In addressing Sumner's motion for summary judgment, the trial court found that a factual issue existed as to whether the wrecker driver was Sumner's employee. Nevertheless, the trial court granted summary judgment in favor of Sumner concluding that Sutton knew the dangers of watching the race from the pit area and assumed the risk of the injury he incurred. The Suttons appeal.

Sutton was an experienced automobile racing spectator. When he attended races at Interstate Raceway, he usually paid an extra admission fee which entitled him to watch the race from the pit area inside the oval race track instead of from the usual spectator area in the grandstands located outside the race track. He testified on deposition that he had on previous occasions signed a waiver form to release the raceway from liability for any personal injuries he might receive in the pit area, but he did not sign such a waiver form prior to entering the pit area on the day he was injured. 1 He was well aware that the pit area of the raceway was a place of continuous activity where race cars enter and exit to be serviced and repaired during the race. He testified that when he watched a race from the pit area, he expected to be in close proximity to race cars coming and going and to all the pit area activities and that he knew the risk of being hit by a race car was greater in the pit area than it was in the spectator grand stands. Sutton testified that it was common to observe damaged race cars being towed by a wrecker into the pit area for repairs. He further testified that he commonly saw race cars lifted from the rear while being towed, leaving only the front wheels on the ground, and that when cars were towed in this position he observed that a driver would remain in the car to steer the front wheels. He knew that when a race car was being towed in this position, it was necessary for someone to remain in the car and steer the front wheels in order to ensure that the car followed the wrecker in a straight line.

On the date of the injury, Sutton was watching a race from the pit area and saw a race car being towed by a wrecker from the rear into the pit area. He observed that, as usual, the race car was being steered by a driver as it was being towed. He watched the wrecker come to a stop a short distance from him and then turned away from the wrecker to speak to another driver. While Sutton had his back turned to the wrecker, the driver got out of the race car, and the wrecker driver pulled the race car forward. Without anyone to steer the front wheels of the race car, the front end of the car moved sideways as it was pulled forward and hit Sutton in the back, causing the injury at issue.

In granting summary judgment to Sumner on the basis that Sutton assumed the risk of incurring the injury, the trial court ruled that "Sutton knew of the danger of being hit by a car in the pit area...." In order for the defendant in a tort claim to establish the defense of assumption of the risk, the defendant must show that the plaintiff: "(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks." (Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864, 471 S.E.2d 866 (1996). In assessing whether a plaintiff had the requisite knowledge of the danger and appreciation of the risks, a subjective standard applies, that is, what the particular plaintiff knew, understood and appreciated. Id. at 864, 471 S.E.2d 866; Beringause v. Fogleman Truck Lines, 200 Ga.App. 822, 824, 409 S.E.2d 524 (1991). A plaintiff lacking such subjective knowledge of the danger will not be taken to have assumed the risk even though his conduct may be deemed contributory negligence for his failure under an objective knowledge standard to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824, 409 S.E.2d 524.

Although the...

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11 cases
  • McEachern v. Muldovan
    • United States
    • Georgia Court of Appeals
    • July 31, 1998
    ...to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824, 409 S.E.2d 524.' Sutton v. Sumner, 224 Ga.App. 857, 859, 482 S.E.2d 486." Desai v. Silver Dollar City, 229 Ga.App. 160, 164(3), 165, 493 S.E.2d Applying a subjective standard in assessing what M......
  • Atlanta Affordable Housing Fund v. Brown
    • United States
    • Georgia Court of Appeals
    • January 15, 2002
    ...504 S.E.2d 220 (1998); Trustees of Trinity College v. Ferris, 228 Ga.App. 476, 479(3), 491 S.E.2d 909 (1997); Sutton v. Sumner, 224 Ga.App. 857, 859-860, 482 S.E.2d 486 (1997). While the defendants proved that the nine-year-old plaintiff was generally aware of the risk of crossing streets o......
  • Desai v. Silver Dollar City, Inc.
    • United States
    • Georgia Court of Appeals
    • October 15, 1997
    ...knowledge standard to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824 ." Sutton v. Sumner, 224 Ga.App. 857, 859, 482 S.E.2d 486. In this case, we find that the undisputed evidence shows that Mrs. Desai had actual knowledge of the danger because s......
  • Thompkins v. Gonzalez-Nunez
    • United States
    • Georgia Court of Appeals
    • May 11, 2020
    ...; Williams v. Mitchell Cty. Elec. Membership Corp. , 255 Ga. App. 668, 671 (1), 566 S.E.2d 356 (2002) ; see Sutton v. Sumner , 224 Ga. App. 857, 859, 482 S.E.2d 486 (1997) ("In assessing whether a plaintiff had the requisite knowledge of the danger and appreciation of the risks, a subjectiv......
  • Request a trial to view additional results
1 books & journal articles
  • Insurance - Ralph F. Simpson
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 49-1, September 1997
    • Invalid date
    ...any gainful work. 249. Id. 250. Id. (quoting Mutual Life Ins. Co. v. Barron, 198 Ga. 1, 8, 30 S.E.2d 879, 884 (1944)). 251. Id. at 869, 482 S.E.2d at 486. 252. 222 Ga. App. 670, 474 S.E.2d 645 (1996). 253. Id. at 670, 474 S.E.2d at 646. 254. Id. at 672,474 S.E.2d at 647 (citing WEBSTER'S TH......

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