Turner v. Sumter Self Storage Co.

• Citation: 449 S.E.2d 618,215 Ga.App. 92
• Decision Date: 16 September 1994
• Docket Number: No. A94A1530,A94A1530
• Parties: TURNER v. SUMTER SELF STORAGE COMPANY et al.
• Court: United States Court of Appeals (Georgia)

Page 618

449 S.E.2d 618

215 Ga.App. 92

TURNER v. SUMTER SELF STORAGE COMPANY et al.

No. A94A1530.

Court of Appeals of Georgia.

Sept. 16, 1994.

Reconsideration Denied Nov. 2, 1994.

Certiorari Denied Feb. 17, 1995.

Keith A. Pflepsen, Albany, for appellant.

Jones, Cork & Miller, Rufus D. Sams, III, Timothy Harden, III, Macon, for appellees.

BIRDSONG, Presiding Judge.

Charles Turner appeals the grant of summary judgment to Sumter Self Storage Company, formerly known as Sumter Redi-Mix, Inc. ("Sumter"). Turner sued Sumter after he was injured when he was struck by a cement chute attached to one of Sumter's cement mixer trucks. In his complaint and amended complaint Turner alleged that Sumter was negligent because it used an inadequate locking device to secure the chute, negligently maintained and repaired the locking device, and failed to exercise due care prior to moving the cement mixer.

On the day of his injury, Turner was employed on a construction project to which Sumter was delivering cement and pouring the cement into forms for footings. The cement was poured directly from the cement mixer into these forms through a chute on the back of the truck. As each part of the form was filled, the truck would pull ahead to the next unfilled section. On the day of Turner's injury, his boss was directing the movements of the truck driver and a co-worker was handling the chute distributing the cement. Because the driver had overfilled a part of the form, Turner was putting the excess cement back in the form and attempting to rearrange steel reinforcing rods that were knocked over when the cement was poured. While doing this, Turner was working some four feet behind and to the rear of the truck with his back to the truck. Although Turner heard the truck motor "rev," he did not turn around. Though Turner knew that the truck motor usually "revved" before it moved, he did not know that the truck was going to move when it did. Apparently Turner was injured when the truck lurched and the chute swung and hit him. There is no evidence in the record showing what caused the chute to swing.

After Turner sued Sumter, Sumter filed a motion for summary judgment contending it was not liable because (1) the borrowed servant doctrine barred recovery, (2) Turner's employer controlled the actions of Sumter's cement truck driver and thus was a vice principal, (3) Turner assumed the risk of these injuries, and (4) Sumter breached no duty owed Turner. Thereafter, the trial court granted Sumter's motion. Turner contends the trial court erred by granting summary judgment to Sumter. He alleges the record raises triable issues of fact on the elements of his claim. Held:

Under our law, "[t]o prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards.... See, e.g., Holiday Inns v. Newton, 157 Ga.App. 436 (278 SE2d 85) (1981)." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. "[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party's case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party's case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case." Id. at 495, 405 S.E.2d 474.

1. Because the trial court did not specify the basis for its grant of summary judgment, Turner has attacked all the grounds urged in the motion. He asserts that a defective locking device on the chute that was negligently maintained by Sumter allowed the chute to swing and strike him. Although Sumter argues that the locking device was not used when the chute was in operation since the chute was intended to swing from side to side as the forms were filled with cement, there is no evidence in the record supporting this argument. While Sumter also argues that the trial court took judicial notice of this fact, the record does not support this assertion. Sumter did not make such a request and nothing suggests that the trial court did so without a request. While the colloquy between counsel and the trial court indicates an assumption that the locking device operated in this fashion, the record does not show the trial court took judicial notice of it. Further, the operation of the locking device is not a matter of public knowledge that may be judicially recognized without introduction of proof. OCGA § 24-1-4; Cole v. Cates, 110 Ga.App. 820, 140 S.E.2d 36. Therefore, the record does not establish that the malfunctioning locking device was not a factor in this case. Additionally, nothing in this argument addresses Turner's contention that Sumter's truck driver was negligent in moving the truck. Clearly, Sumter had a duty to operate the truck so that workers were not injured. Summary judgment was not authorized on this basis.

2. Although Sumter also asserted that it was entitled to summary judgment because its truck driver was a "borrowed servant" of Turner's employer at the time of Turner's injury, the record does not support this assertion. The only evidence in the record is that Turner's boss guided the truck driver and gave him instructions on the rate of cement flow as the forms were being poured. This scope of control does not satisfy the three elements necessary before an employee can be considered a borrowed servant. See Six Flags Over Ga. v. Hill, 247 Ga. 375, 377, 276 S.E.2d 572; Lorie v. Standard Oil Co., 175 Ga.App. 308, 310, 333 S.E.2d 110. In the same manner, there is no evidence that Turner's boss was the "vice principal" of the truck driver. See Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839; Miller v. Fulton, 111 Ga.App. 849, 143 S.E.2d 578.

3. As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence. Taft v. Taft, 209 Ga.App. 499, 500, 433 S.E.2d 667. Under the evidence in this appeal, Sumter's contention that Turner assumed the risk, as a matter of law, is not supported by the record.

"Assumption of risk assumes that [Turner], 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." (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga.App. 822, 823, 409 S.E.2d 524. "The defense of assumption of risk requires (1) that the plaintiff had some actual...