Tolar Const. Co. v. Ellington

• Decision Date: 12 February 1976
• Docket Number: Nos. 1,2,No. 51174,3,51174,s. 1
• Citation: 137 Ga.App. 847,225 S.E.2d 66
• Parties: TOLAR CONSTRUCTION COMPANY v. Ben ELLINGTON et al
• Court: Georgia Court of Appeals

Page 66

225 S.E.2d 66

137 Ga.App. 847

TOLAR CONSTRUCTION COMPANY v. Ben ELLINGTON et al.

No. 51174.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 12, 1976.

Rehearing Denied March 8, 1976. Vacated, see 229 S.E.2d 507.

Neely, Freeman & Hawkins, Richard P. Schultz, William G. Tabb, III, Atlanta, for appellant.

Thomas Henry Nickerson, John D. Lowery, Atlanta, for appellees.

DEEN, Presiding Judge.

The plaintiff's suit is predicated upon the defendant's alleged negligence in requiring him to work in surroundings and under working conditions which were hazardous and dangerous to his safety. To hold the defendant liable in tort he must be in breach of some duty owed to the plaintiff. Code §§ 105-103, 105-104. Here the only duty owed to the plaintiff-invitee by the defendant, who was the general contractor, was to take reasonable measures to protect him from injuries likely to arise from hidden defects in construction or places of unusual danger. Chambers v. Peacock Const. Co., 115 Ga.App. 670(2), 155 S.E.2d 704. Thus if the plaintiff does not know of the danger and has not equal means of knowing such fact, and by the exercise of ordinary care may not know thereof, a duty devolves upon the defendant to exercise reasonable care to afford protection to the plaintiff. Holman v. American Auto. Ins. Co., 201 Ga. 454, 39 S.E.2d 850; Ludd v. Wilkins, 118 Ga. 525, 45 S.E. 429; Taff v. Harris, 118 Ga.App. 611, 164 S.E.2d 881. 'If the danger is obvious, and as easily known to the servant as to the master, the latter will not be liable for failing to give warning of it.' Crown Cotton Mills v. McNally, 123 Ga. 35(3), 51 S.E. 13. If the servant 'had equal means with the master of discovering the danger, any injury resulting to him would be the result of his own fault.' McDonnell v. Central of Ga. R. Co., 118 Ga. 86, 89, 44 S.E. 840, 842.

A study of the cases convinces me that in such a situation, if the plaintiff alleges no knowledge of the dangerous condition, a jury question is presented as to his exercise of ordinary care for his own safety. Wakefield v. A. R. Winter Co., 121 Ga.App. 259, 174 S.E.2d 178 (plaintiff 'unaware' of the danger); Mozley v. Beers Const. Co., 97 Ga.App. 217, 102 S.E.2d 645 (plaintiff stepping backwards into unseen stairwell shaft); Wynne v. Southern Bell Tel. & Tel. Co., 159 Ga. 623, 126 S.E. 388 (plaintiff with no actual notice of patent defect); Chambers v. Peacock Const. Co., 115 Ga.App. 670, 155 S.E.2d 704, supra (plaintiff unaware). In these cases, where no knowledge or awareness of the defect is admitted, whether the plaintiff was maintaining a 'reasonable lookout' would be for the jury. Chotas v. J. P. Allen & Co., 113 Ga.App. 731, 149 S.E.2d 527. On the other hand, if the plaintiff acknowledges awareness of the danger, he will be barred from recovery. Batson- Cook Co. v. Shipley, 137 Ga.App. 210, 214 S.E.2d 176 (plaintiff aware of hole); Braun v. Wright, 100 Ga.App. 295, 111 S.E.2d 100 (plaintiff aware of darkness); McDonough Const. Co. v. Benefield, 104 Ga.App. 367, 121 S.E.2d 665 (plaintiff knew of dangerous condition); Harris v. Bethel Air Conditioning & Elec. Co., 114 Ga.App. 255, 150 S.E.2d 710 (danger obvious); Dekle v. Todd, 132 Ga.App. 156, 207 S.E.2d 654 (plaintiff cognizant of danger). Other cases have been resolved against the plaintiff, apparently on the theory that the condition causing injury was not an 'unusual danger.' Nechtman v. B. Thorpe & Co., 99 Ga.App. 626, 109 S.E.2d 633 (excavations on building site); Taff v. Harris, 118 Ga.App. 611, 164 S.E.2d 881 (porch without guardrails).

The vast majority of the cases denying plaintiff's recovery couch their language in terms of the plaintiff's 'failure to exercise ordinary care for his own safety' or because he 'assumes the ordinary risks of his employment.' All this language means is that when the dangerous condition is seen by the plaintiff, the defendant's duty to protect him ends; the danger is no longer hidden. Thus if a plaintiff is injured by a dangerous condition of which he is aware, the defendant-general contractor is under no duty to the plaintiff and is not guilty of any actionable negligence, there being a duty to warn or protect from only hidden or unusual dangers. How can a 10 foot by 10 foot hole be 'hidden' when the plaintiff acknowledged being aware of it? What is 'unusual' about holes in the roof for exhaust fans or skylights in a building under construction?

Here the plaintiff was aware of the dangerous condition which resulted in his injury. That he did not see the hole immediately before his fall does not mitigate his own responsibility for his injury for he was walking backwards by choice on a roof in which he knew there were holes. Being aware of the holes, he was aware of the potential hazards and was also under a duty to use his sight to discover any hole in his

I am aware of language in Garrett v. Home v. Hines, 124 Ga.App. 47, 183 S.E.2d 7.

I am aware of language in Garrettt v. Royal Brothers Co., 225 Ga. 533, 170 S.E.2d 294, to the effect that the conduct of a defendant cannot be declared to be negligent as a matter of law and that the jury is usually the arbiter of the question of alleged negligence. There is nothing in Garrett however to prevent a finding of no negligence as a matter of law and where the plaintiff admits in his interrogatory that he was aware of the potential danger, the pleadings have been...