Walker v. Bruhn

• Court: Georgia Court of Appeals
• Writing for the Court: Andrews
• Citation: Walker v. Bruhn, 635 S.E.2d 322, 281 Ga.App. 149 (Ga. App. 2006)
• Decision Date: 28 July 2006
• Docket Number: No. A06A1449.,A06A1449.
• Parties: WALKER v. BRUHN.

281 Ga. App. 149

635 S.E.2d 322

WALKER v. BRUHN.

No. A06A1449.

Court of Appeals of Georgia.

July 28, 2006.

Reconsideration Denied August 16, 2006.

Certiorari Denied October 30, 2006.

John C. Wise, Atlanta, Jack T. Brinkley, Jr., Brinkley and Brinkley, Columbus, for Appellant.

James Valbrun, Philippa V. Ellis, Owen, Gleaton, Egan, Jones & Sweeney, LLP, Atlanta, for Appellee.

ANDREWS, Presiding Judge.

David Walker appeals from the trial court's grant of summary judgment to Chuck Bruhn d/b/a Best Pawn (Bruhn's) on Walker's personal injury claim. Walker sued Bruhn after being injured by a circular saw that was for sale at Bruhn's pawn shop. Bruhn moved for summary judgment on Walker's claims, contending that Walker could not show that Bruhn had any knowledge that the saw was defective. We agree and affirm.

Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). On appeal from a grant of a motion for summary judgment, we review the evidence de novo to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Burdick v. Govt. Employees Ins. Co., 277 Ga.App. 391, 626 S.E.2d 587 (2006).

The evidence below was that on the day of the accident, Walker was "hanging out" at Bruhn's pawn shop because Tony Neal, his fiancee's brother, worked there. Walker said that Neal was busy with another customer when someone came in and asked to see the circular saw on display. Walker got the saw and handed it to the customer. The customer then asked to have the saw plugged in to make sure it worked. Walker bent down and plugged the cord into the socket. The saw immediately started running. Before Walker could get out of the way, the saw cut into his arm and seriously injured him.

In support of his motion for summary judgment, Bruhn submitted the affidavit of Tony Neal, the store manager. Neal stated that when the circular saw was brought in, he inspected it to make sure it was working properly before accepting it. Neal plugged the saw in and squeezed the trigger and the saw operated safely with no problems. Neal said they would not have accepted the saw if it had not functioned properly.

The saw was stored for 40 days and then was brought out and displayed in the shop. Neal said he never observed or experienced any problems with the saw. After Walker's accident, Neal said he took the saw and plugged it in, but it did not activate until he squeezed the trigger. He then unplugged it, plugged it back in and it activated immediately. Further tests showed that the saw continued to operate in this way, alternating between functioning properly and improperly. Bruhn also stated that he tested the saw and it came on the first time he plugged it in and after that it malfunctioned intermittently.

Bruhn moved for summary judgment, contending that, before Walker's accident, neither he nor any of his employees had any knowledge, either actual or constructive, of the defect in the saw. The trial court granted the motion and this appeal followed.

"Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. A proprietor's obligation to keep the premises safe includes "a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises." (Punctuation omitted.) Anderson v. Svc. Merchandise Co., 230 Ga. App. 551, 552, 496 S.E.2d 743 (1998). "The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted." (Punctuation and emphasis omitted.) Ballard v. Southern Regional Med. Center, 216 Ga.App. 96, 97, 453 S.E.2d 123 (1995).

Here, it is undisputed that neither Bruhn, Neal nor anyone else at the pawn shop had actual knowledge of the hazard. Therefore, Walker must show that the pawn shop had constructive knowledge that the saw was defective.

Constructive knowledge can be established with evidence that the defect in the saw was easily noticeable and should have been corrected, or that...