Dempsey v. Southeastern Industrial Contracting Co., 309 Ga. App. 140

Background

Dempsey, a UPS driver, was unloading at the start of her shift when a protruding wire from the conveyor belt pulled her glove and injured her hand on February 10, 2006.
Dempsey sued Southeastern Industrial Contracting Co., Inc. (Southeastern) and two Southeastern employees, Smithberger and Garrett.
She claimed breach of duty related to a guard/transfer plate, failure to notify UPS about shut-off switches, and failure to warn of ongoing conveyor hazards.
The trial court granted summary judgment to all defendants, and Dempsey appealed.
The Georgia Court of Appeals reviews de novo and considers evidence in the light most favorable to the nonmovant; the dispositive issue is whether triable issues exist."
The court ultimately affirmed the trial court’s grant of summary judgment for all defendants.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dempsey can recover as a third-party beneficiary under Southeastern–UPS contract.	Dempsey contends the contract imposed a duty to protect against personal injuries.	Southeastern did not owe a duty to Dempsey as a third-party beneficiary; no direct benefit shown.	No triable issue; no duty shown via third-party beneficiary theory.
Whether Southeastern owed a duty based on ongoing inspection/warning duties.	Southeastern failed to warn UPS and failed to prevent foreseeable hazards.	Southeastern’s role was to discover and remedy issues as they arose, not anticipate future problems; no failure to warn proven.	No triable issue; no duty established under these facts.
Whether the transfer plate’s potential maladjustment created triable issues of liability.	Deposition testimony suggested the plate was maladjusted, creating a dangerous gap.	Testimony was speculative and inadequate to prove maladjustment; no evidence of actual plate condition.	No triable issue; speculation insufficient to defeat summary judgment.
Whether the shut-off switch location created triable issues of liability.	Nearest switch was about ten feet away, possibly unreasonably distant.	Switch placement and UPS inspection terms did not obligate Southeastern to modify switch location; another employee could shut off quickly.	No triable issue; location not shown to be attributable fault.
Whether Smithberger can be personally liable for actions as Southeastern’s CEO.	Smithberger’s training/dispatching duties implicated personal liability for negligent conduct.	Merely overseeing training does not establish direct participation in the tort.	No personal liability; mere involvement insufficient.
Whether Garrett’s conduct can subject him to liability as a supervisory employee.	Garrett, though not performing work, was a point of contact for UPS during the incident.	Garrett had no personal work or inspection duties related to the conveyor before the injury.	No reversible error; no triable issue as to Garrett.

Key Cases Cited

CDP Event Svcs. v. Atcheson, 289 Ga.App. 183, 656 S.E.2d 537 (Ga. Ct. App. 2008) (limits on third-party beneficiary duty in contract performance)
Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459, 486 S.E.2d 684 (Ga. Ct. App. 1997) (standard for summary judgment and burden-shifting)
Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 586 S.E.2d 235 (Ga. 2003) (right-for-any-reason affirmance rule for lower court judgments)
City of Gainesville v. Dodd, 275 Ga. 834, 573 S.E.2d 369 (Ga. 2002) (discretion in applying right-for-any-reason rule)
Cowart v. Widener, 287 Ga. 622, 697 S.E.2d 779 (Ga. 2010) (summary judgment cannot be avoided by speculation)
Denson Heating, etc. Co. v. Oglesby, 266 Ga.App. 147, 596 S.E.2d 685 (Ga. Ct. App. 2004) (evidence based on guess or speculation insufficient)
Beasley v. A Better Gas Co., 269 Ga.App. 426, 604 S.E.2d 202 (Ga. Ct. App. 2004) (officer liability requires direct participation in tort)
Ken Thomas of Ga., Inc. v. Halim, 266 Ga.App. 570, 597 S.E.2d 615 (Ga. Ct. App. 2004) (res ipsa loquitur considerations and control issues)