347 Ga. App. 400
Ga. Ct. App.2018Background
- On Sept. 17, 2010, Williams was injured when a car lift in an auto shop crushed his foot while Bather (lessee) lowered the lift as Williams reached into his trunk.
- Sherwood (owner) leased the front repair area (three bays, office, rear parking) to Bather but retained keys, continued using the lifts, and shared customer areas.
- Lease required Bather to hold Sherwood harmless and carry liability insurance naming Sherwood; Bather did not obtain the required insurance.
- Williams sued Sherwood and Reliable Auto for negligence; jury returned verdict for Williams ($125,000) with fault apportioned (33% Sherwood, 32% Bather, 33% Reliable Auto, 2% Williams).
- Trial court denied Sherwood’s directed verdict and j.n.o.v. motions and refused indemnification recovery from Bather; Sherwood appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether any evidence supported negligence finding against Sherwood/Bather | Williams: owner retained control/superior knowledge of dangerous machinery; employer/occupier duty to keep premises safe | Sherwood: no evidence he or Bather were negligent; fault solely with Bather or none | Affirmed: evidence permitted jury to find Sherwood retained control and breached duty re: heavy machinery; jury questions for negligence/contributory negligence were appropriate |
| Whether Sherwood could obtain contractual indemnity from Bather under the lease | Williams: N/A (plaintiff seeks recovery from defendants) | Sherwood: lease indemnified him for liabilities; Bather should indemnify | Affirmed: indemnity clause not construed to cover indemnitee’s own negligence; lease did not expressly indemnify Sherwood for his own negligence, so no recovery against Bather |
| Whether the trial court’s charge on constructive knowledge (including reference to a "foreign substance") was improper | Williams: pattern charge on actual and constructive knowledge was appropriate | Sherwood: charge referenced "substance" though no evidence of foreign substance; charge not adjusted to evidence | Affirmed: charge, taken as a whole, was correct and not likely to confuse jury; any inapplicable language was harmless because jury needed factual predicate to apply it |
| Whether denial of j.n.o.v. was proper given conflicting evidence and jury verdict | Williams: factual conflicts for jury to resolve; some evidence supported verdict | Sherwood: evidence uncontradicted that Bather was solely liable and indemnity should apply; thus j.n.o.v. warranted | Affirmed: appellate standard requires any evidence support; conflicts existed so trial court properly denied j.n.o.v. |
Key Cases Cited
- Avion Sys., Inc. v. Bellomo, 338 Ga. App. 141 (2016) (appellate standard for reviewing denial of j.n.o.v.; affirm if any evidence supports verdict)
- Towles v. Cox, 181 Ga. App. 194 (1986) (owner’s duty nondelegable unless full possession and control transferred)
- Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143 (2004) (dangers from use/arrangement of premises; foreseeability of harm from machinery)
- Robinson v. Kroger Co., 268 Ga. 735 (1997) (foreseeable dangers from premises arrangement/usage)
- Murray Biscuit Co. v. Hutto, 115 Ga. App. 870 (1967) (duty arises when invitee is within range of dangerous act)
- American Multi-Cinema, Inc. v. Brown, 285 Ga. 442 (2009) (questions of patron vigilance and comparative negligence are for the jury)
- Willesen v. Ernest Communications, 323 Ga. App. 457 (2013) (contract interpretation is a question of law; ambiguity first inquiry)
- Firmani v. Dar-Court Builders, 339 Ga. App. 413 (2016) (indemnity agreements strictly construed against indemnitee; must expressly include indemnitee negligence)
- Ryder Integrated Logistics, Inc. v. BellSouth Telecomms., Inc., 281 Ga. 736 (2007) (contractual indemnities do not extend to indemnitee’s own negligence absent express language)
- Viad Corp. v. U.S. Steel Corp., 343 Ga. App. 609 (2017) (refusal to grant indemnity where agreement does not expressly cover indemnitee’s negligence)
- Wall v. Hall, 244 Ga. App. 61 (2000) (a charge viewed as a whole is sufficient; isolated imprecision is harmless if not confusing)