Thompkins v. Gonzalez-Nunez

• Decision Date: 11 May 2020
• Docket Number: A20A0522
• Citation: 843 S.E.2d 39,355 Ga.App. 144
• Parties: THOMPKINS et al. v. GONZALEZ-NUNEZ.
• Court: Georgia Court of Appeals

355 Ga.App. 144

843 S.E.2d 39

THOMPKINS et al.

v.GONZALEZ-NUNEZ.

A20A0522

Court of Appeals of Georgia.

May 11, 2020

Ronald Ray Coleman, Jr., for Appellant.

Taylor & Viers, Richard T. Taylor ; Cruz & Associates, Ruben J. Cruz, for appellee.

Dillard, Presiding Judge.

Brian Thompkins and his employer, Old Dominion Freight Line, Inc., appeal the trial court's denial of their motion for summary judgment in this negligence action arising from an accident in which Enrique Gonzalez-Nunez was injured preparing to load tires into the trailer of a company truck. Specifically, the appellants argue that the trial court erred in rejecting their assumption-of-the-risk defense. For the reasons set forth infra , we reverse.

Viewing the evidence in the light most favorable to Gonzalez-Nunez (i.e. , the nonmoving party),¹ the record shows that the accident occurred on April 12, 2016, when Gonzalez-Nunez was working for Tri State Tire Company, loading and unloading trucks. According to Gonzalez-Nunez, when he arrived to load trailers, he would first take down the metal bars spanning the inside of the trailer. The bars run across the width of the trailer and are secured to vertical tracks in the trailer walls so that they can be positioned at a variety of heights to secure cargo.

On the day in question, Gonzalez-Nunez opened the trailer door of an Old Dominion truck, so that he and his manager could load tires into it. But when he did so, Gonzalez-Nunez discovered that one of the metal bars was hanging down on the left side of the trailer. At this point, Gonzalez-Nunez's manager left to get a tool to take out the screw on the right side of the bar, so it could then be removed.

While waiting on his manager, Gonzalez-Nunez attempted to remove the bar by himself. In doing so, he placed two tires on the right side of the trailer, stood on them, and tried to free the bar with his hands. And about three to five minutes later, Thompkins—an Old Dominion driver—entered the trailer, saw Gonzalez-Nunez unsuccessfully attempting to remove the bar, and tried to help him.

Specifically, Thompkins used a broomstick to hold up the left side of the bar while Gonzalez-Nunez continued trying to free the bar on the right side. But on his third attempt to remove the bar, Gonzalez-Nunez turned to see if his manager had returned with the necessary tool, and in "just a fraction of seconds," the bar fell down and injured his finger.

On March 2, 2018, Gonzalez-Nunez filed a complaint against the appellants, contending that their negligence resulted in his injury. The appellants answered, responding to the allegations of the complaint and asserting numerous affirmative defenses, including that Gonzalez-Nunez's claims were barred by the doctrine of assumption of the risk. Discovery then ensued, after which the appellants filed a motion for summary judgment, and Gonzalez-Nunez filed a response. Ultimately, the trial court denied the motion for summary judgment. Thereafter, we granted the appellants’ application for an interlocutory appeal, and this appeal follows.

Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."² Furthermore, a de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we "view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant."³ Moreover, at the summary-judgment stage, "[w]e do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution."⁴ Nevertheless, if there is no evidence sufficient to create a genuine issue as to "any essential element of [the] plaintiff's claim, that claim tumbles like a house of cards[,]" and all other factual disputes are rendered immaterial.⁵ With these guiding principles in mind, we will now address the appellants’ sole enumeration of error.

Specifically, the appellants argue that the trial court erred by rejecting their assumption-of-the-risk defense and in denying their motion for summary judgment on that basis. We agree.

The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, "without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not."⁶ And in Georgia, a defendant asserting an assumption-of-the-risk defense must establish 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."⁷ Furthermore, knowledge of the risk is "the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff's part."⁸ If all these elements are satisfied, the plaintiff's assumption of the risk is "a complete defense to negligence."⁹ And while assumption of the risk is ordinarily a jury question, "in plain, palpable, and indisputable cases resolution of the issue by a jury is not required."¹⁰

Here, during Gonzalez-Nunez's deposition, he testified about his experience moving the adjustable bars inside trailers, as well as his specific, subjective knowledge of the risks involved in doing so. Indeed, Gonzalez-Nunez testified that, prior to the incident at issue, he had experience removing metal bars from Old Dominion trailers. He understood how they worked and knew there was "a pinch point" if a bar lowered while his finger was still in the track. Gonzalez-Nunez also understood that he needed the tool his manager went to retrieve in order to remove the bar. Nevertheless, when asked why he left his right hand in the "pinch point" while his manager was gone, Gonzalez-Nunez testified that he did so because he was trying to remove the bar. And while Gonzalez-Nunez testified that he knew he needed a tool to remove the bar, he explained that his "manager took too long, and [he] was busy and ... had to do other things."

So, Gonzalez-Nunez knew that if the bar slipped off of the broomstick Thompkins was holding while his finger was in the track, he would be injured. And when asked if he was concerned that the bar could slip while it was being held up by the broomstick, Gonzalez-Nunez testified that he was indeed worried, but he was "watching it and making sure that it wouldn't slip so that [he] could take [his] finger out." Gonzalez-Nunez also did not think that he needed to use his left hand to help hold up the bar as a safety measure. In sum, while it crossed Gonzalez-Nunez's mind that his finger could get hurt engaging in these actions, he nevertheless "decided to put [his] finger in the pinch point to try to free the bar ...." And by doing so, he assumed the risk of the injury that followed.

Nevertheless, Gonzalez-Nunez maintains that this is not an assumption-of-the-risk case but, rather, one involving contributory negligence that must be decided by a jury. And he is correct that "an act of contributory negligence or an error in judgment on the part of the plaintiff is not necessarily an assumption of risk, and the rule does not extend to a plaintiff assuming the risk of the negligent act of another."¹¹ Consider the following example:

A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk.¹²

But when assessing whether a plaintiff has assumed the risk, "the applicable standard focuses on the plaintiff's knowledge; it is a subjective one, geared to the particular plaintiff and his situation , rather than that of a reasonable person of ordinary prudence who appears in the completely separate defense of contributory negligence."¹³

Of particular relevance here, the knowledge that a plaintiff who assumes a risk "must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury."¹⁴ In other words, the knowledge requirement does not "refer to a comprehension of general, non-specific risks."¹⁵ Instead, this knowledge must be that of "the specific, particular risk of harm associated with the activity or condition that proximately causes injury."¹⁶ And this is exactly the type of knowledge Gonzalez-Nunez possessed at the time of the incident at issue.

Even so, Gonzalez-Nunez cites numerous contributory-negligence cases in an attempt to analogize them to the instant case. But those cases all involved a plaintiff with merely general knowledge that harm could occur, and who could not possibly foresee the specific act of negligence by the defendant that proximately caused the particular type of harm that resulted.¹⁷ This is not such a case.

Indeed, a far more analogous decision is Tennison v. Lowndes-Echols Association for Retarded Citizens ,¹⁸ which concerned the delivery of lumber pallets by the plaintiff to a business.¹⁹ In that case, noticing that the business's employee was having trouble lifting the pallets onto a forklift because it was too small, the plaintiff voluntarily climbed on top of a pallet to assist him.²⁰ Then, when the employee moved the forklift's tines, the pallet shifted and the forklift overturned, injuring the plaintiff.²¹ The plaintiff eventually sued the business and the employee for negligence, but we affirmed the trial court's grant of summary judgment to the defendants on their assumption-of-the-risk defense, holding that

[p]retermitting the issue of whether [the employee] was negligent in his operation of the forklift , [the plaintiff] knew of the danger of climbing on top of a 14-foot

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