CIEPLINSKI v. CALDWELL ELECTRICAL CONTRACTORS, INC. et al.
A06A0596
Court of Appeals of Georgia
JULY 5, 2006
280 Ga. App. 267 | 633 SE2d 646
ANDREWS, Presiding Judge.
Whilе working for Grove River Mills, Inc. (GRM), Mariusz Cieplinski accidentally stepped into an uncovered section of a moving conveyor used to transport corn and other animal feed material into the GRM feed mill. His leg was pulled into the conveyor, and he suffered a serious injury requiring amputation of the lower portion of the leg. Cieplinski received workers’ compensation benefits from GRM for the job-related injury, then sued Henning Construction Company, Caldwell Electrical Contractors, Inc., and Fred Fairchild as third-party tortfeasors alleging that they proximately caused his injury by negligently installing the conveyor or negligently making subsequent improvements to the conveyor. Cieplinski appeals from the trial court‘s grant of summary judgment in favor of all the defendants. For the following reasons, we affirm.
To prevail on a motion for summary judgment [under
(Citations, punctuation and emphasis omitted.) Parks v. Multimedia Technologies, 239 Ga. App. 282, 286-287 (520 SE2d 517) (1999); Lau‘s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
Applying these standards, the record shows the following: The feed conveyor in which Cieplinski was injured was manufactured by
On the day of the accident, Cieplinski testified that he noticed what appeared to be excessive dust coming from the conveyor tunnel, so he climbed down a ladder into the tunnel at the access on the feed mill end of the tunnel to inspect the conveyor while it was running to determine where the dust was coming from. Cieplinski knew that the tunnel was completely dark unless the lights installed in the tunnel were switched on. When he could not find a light switch in the tunnel on the feed mill end, he exited the tunnel at that end and asked someone at GRM where the light switch for the tunnel lights was located. He was told that the only light switch was at the other end of the tunnel at the access located in the feed receiving area. Although the tunnel had been built by Henning Constructiоn with access at both ends, at some point after the conveyor was installed by Henning Construction, and after Caldwell Electrical installed additional lighting in the tunnel, GRM blocked access to the tunnel from the feed receiving end. GRM did this by closing the feed receiving access to the tunnel with a chain that could only be unlatched from inside the tunnel. Cieplinski testified that, because he was prevented by the chain from gaining access to the tunnel from the feed receiving end where the light switch was located, he got a flashlight and entered the darkened tunnel from the feed mill end with the intention of walking the length of the tunnel to reach the light switch аt the other end. As Cieplinski stated at his deposition, “That way I could get better lighting inside the tunnel to see where the dust was coming from.”
Cieplinski testified that, although he was aware there was a method by which he could have turned off the conveyor and locked it in the off position while he was in the tunnel, it was necessary for him to enter the tunnel with the conveyor running because that was the only way he could tell where the dust was escaping from the conveyor system. There is no evidence that the dust created a hazard at the
Cieplinski walked along the tunnel across a concrete-floored access space with the conveyor to his immediate left elevated about two feet above the floor. Although there was dust in the tunnel that interfered with visibility, Cieplinski said he could see where he was going with the aid of the flashlight until he got about halfway through the tunnel, at which point the dust worsened and made it difficult to see. He considered going back, but decided he was close enough to the feed receiving end of the tunnel that he would try to find the light switch and then unlatch the chain and climb out of the tunnel at the feed receiving access. As he continued along the tunnel, Cieplinski said he could still see the conveyor immediately to his left. Evidence showed that the feed conveyor, as manufactured by Schlagel and installed by Henning Construction, was guarded by metal covers on all four sides. With the use of a tool, the metal cover on the top of the conveyor could be removed in sections, if necessary, to inspect and maintain the conveyor. The conveyor cover was labeled with warnings provided by the manufacturer stating: “CAUTION. COVERS and GUARDS are furnished for your SAFETY to avoid personal injury. They must be securely fastened in place before operating this equipment.” Cieplinski testified that, as he walked along the tunnel, he could see that the sections of the top cover were in place on the moving conveyor. In fact, Cieplinski testified that he was told prior to the accident that it was GRM‘s policy to always keep the covers on the conveyor as a safety precaution.
As he approached the feed receiving end of the tunnel, Cieplinski encountered a tall pile of corn grain on the concrete floor in his path. Because of the increasingly heavy dust in the tunnel at that point, Cieplinski was unable to see that the section of cover on top of the conveyor adjacent to the pile of corn had been removed. Cieplinski testified at his deposition as follows:
Q: As you got to this pile of grain toward the end of the tunnel, when did you notice that there was no cover on [the conveyor]?
A: I could not see. Once I got to the last pile of corn, the conveyor section, it was real dusty and, therefore, I could not see that that one section had the cover off of it.
Q: Did that seem to be where all the dust was coming from?
A: Yes, it was.
Q: The area that was not covered?
A: Yes, it was.
Q: And at no time before your injury were you able to visualize, yeah, here‘s the conveyor and this cover is off?
A: I never knew that that cover was off prior to that, my accident.
Q: Meaning that you could not see that it was off?
A: That‘s correct. . .
Q: All right, my question is because of the dust, you were unable to see one way or the other whether the conveyor cover was on or off?
A: That‘s correct. . .
Q: As I understand, you got to the top of this pile of grain and your left foot went into the conveyor?
A: I stepped over the pile. And as I was stepping into what I thought was a clear area, I stepped right onto the top of the open area of the conveyor belt.
Q: Did you think that you were stepping on top of a covered conveyor?
A: I thought I was stepping on the flat ground, the concrete. I did not think I was stepping on the conveyor at all.
Cieplinski further testified that he was trying to find the light switch at the end of the tunnel when he accidentally stepped into the uncovered conveyor, “[b]ut it was just so dusty, you could not see anything at that end.”
Q: And you think that that‘s where the dust was coming from as a result of this [cover] being off?
A: That‘s correct.
Q: If [the cover] had been on, you don‘t think it would have been as dusty?
A: That‘s correct.
Q: If [the cover] had been on, you wouldn‘t have gotten hurt?
A: That‘s correct.
Q: And if [the cover] had been on, you would have been able to see better with that [flashlight]?
A: That‘s correct.
Cieplinski called for help from the tunnel as his leg was pulled into the moving conveyor, but no one responded. He was eventually able to pull his mangled leg free and climb up the access ladder at the feed receiving end of the tunnel, where he unlatched the chain on the access from the inside of the tunnel and exited to get help.
Q: [A]t the time you were looking at this conveyor and noticed that the cover was off?
A: Yes.
Q: Why didn‘t y‘all decide to put the cover back on?
A: One, the cover was not visible, didn‘t know where it was. And I‘m just - this is really hindsight, because we were very busy from the top of the mill to the bottom doing this inventory. We inventorized that particular section and moved tо another piece of equipment.
Q: Was there any discussion about replacing the cover?
A: No.
Q: Either finding it or buying a new one or anything like that?
A: No ...
Q: Was there any reason to leave the cover off in terms of getting the conveyor to operate the way you wanted it to operate?
A: No.
Q: Did you all have any sort of a program for cleaning grain from that tunnel on any sort of periodic basis?
A: No.
Q: When you were down there in August of 2000, was grain piled up in the receiving end of the tunnel?
A: Yes.
Q: Do you know what caused the grain to pile up?
A: That was the grain that they had backed up when they cleaned out the - when they reversed the [conveyor] motor to clean the drag up. That was the same corn.
Q: And that hadn‘t been cleaned up?
A: Correct.
Q: Was it piled up so that it was high enough to be at thе top of the conveyor?
A: It was pretty much level or flush with the top of the conveyor.
Q: And I take it you didn‘t have any discussion with Henning
[Construction] about the fact that the cover was off in August of 2000?
A: No.
Q: And to your knowledge it remained off until the time of Mr. Cieplinski‘s accident?
A: Correct.
Q: Did Grove River Mills take any steps to warn any of its employees specifically or to advise any of its employees specifically that the cover was off the receiving end of the drag conveyor in the tunnel?
A: No.
The general manager further testified that the conveyor was operating normally at the time of Cieplinski‘s injury. Although the general manager testified that he had a policy to not send GRM employees into the tunnel, he could not recall whether he told Cieplinski about the policy, and he did not know whether Cieplinski‘s boss informed Cieplinski about the policy. As a result of Cieplinski‘s accident, GRM was cited and fined by the Occupational Safety and Health Administration (OSHA) of the U. S. Department of Labor for operating the conveyor without the cover in violation of OSHA regulations requiring that machine guarding be provided to protect employees from the hazards of exposed moving parts.
Cieplinski was barred by the exclusive remedy provisions of the Georgia Workers’ Compensation Act (
As to Henning Construction, Cieplinski‘s expert testified that Henning installed a flat-bottom conveyor rather than a round-bottom conveyor, and that this choice along with other aspects of Henning‘s installation design (a lack of distance between the point where feed
Nevertheless, Cieplinski‘s expert further testified that Henning Construction (1) negligently failed to install an emergency pull-cord running the length of the conveyor that could have enabled Cieplinski to shut down the conveyor from inside the tunnel after the accident occurred and might have minimized his injury, and (2) negligently failed to install a second light switch for the tunnel lights at the access located at the feed mill end where Cieplinski entered the tunnel,
Even if Cieplinski produced expert testimony establishing a factual issue as to whether Henning Construction, Caldwell Electrical, and Fairchild were negligent in failing to install an emergency pull-cord on the conveyor or in failing to put a second light switch in the tunnel, Cieplinski was required to prove as an essential element of thеse claims that the alleged negligence was a proximate cause of his injury. Bradley Center, Inc., 250 Ga. at 200. The defendants moved for summary judgment on the basis that their original negligence, if any, was not a proximate cause of Cieplinski‘s injury because GRM‘s subsequent negligence intervened between their original negligence and the injury, and that GRM‘s negligence alone constituted the sole proximate cause of the injury.
In support of this defense, the record shows that, subsequent to the defendants’ alleged negligence in failing to install an emergency pull-cord and a second light switch, GRM engaged in the following negligent acts or failures to act: (1) GRM used a chаin (latched from inside the tunnel) to seal off access to the tunnel on the feed receiving end where GRM knew the only tunnel light switch was located, (2) GRM knowingly and without warning to its employees operated the moving conveyor with a section of the top cover removed in disregard of the manufacturer‘s warnings and in violation of OSHA regulations, and (3) GRM knowingly failed to remove a large pile of corn feed which accumulated on the tunnel floor adjacent to and level with the top of the uncovered conveyor section. As a result of GRM‘s negligence, Cieplinski was unable to use the access at the feed recеiving end of the tunnel where the light switch was located, so he entered the darkened tunnel at the opposite end with a flashlight and walked the length of the tunnel to find the light switch. As he walked, the moving conveyor was to his immediate left elevated about two feet above the tunnel floor. When Cieplinski approached the feed receiving end of the tunnel where the light switch was located, he was unaware that one section of the conveyor top cover had been removed, and he was unable to see at that end of the tunnel because of thick dust billowing from the uncovered section. Near the feed receiving end of the tunnel, Cieplinski encountered the pile of corn feed blocking his path. To move past the pile, Cieplinski stepped to the top of the pile, which was level with the uncovered top of the conveyor, but he was still unable
At issue on these facts is whether the original negligent acts of the defendants were concurring proximate сauses of Cieplinski‘s injury, or whether GRM‘s subsequent negligence intervened and became the sole proximate cause of the injury.2 The general rule applied to this issue was set forth by the Supreme Court in Southern R. Co. v. Webb, 116 Ga. 152 (42 SE 395) (1902) as follows:
While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonаbly have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.
Id.; Blakely v. Johnson, 220 Ga. 572, 574-575 (140 SE2d 857) (1965). In other words, even if the defendants’ original negligence was to some extent a contributing cause of Cieplinski‘s injury and was a cause-in-fact of the injury, the original negligence is considered too remote to constitute the proximate cause of the injury if GRM‘s subsequent negligence was an intervening act which was not foreseeable to the defendants, was not triggered by the originаl negligence, and was sufficient by itself to cause Cieplinski‘s injury. Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686 (572 SE2d 533) (2002); McAuley v. Wills, 251 Ga. 3, 6-7 (303 SE2d 258) (1983). An intervening act of negligence which satisfies these conditions breaks the chain of causal connection for purposes of tort liability between the original negligence and the injury and becomes the sole proximate cause of the injury. Ontario Sewing Machine, 275 Ga. at 686. As a general rule, what amounts to proximate cause is a jury issue, but in plain and undisputed cases the issue will be determined by the court as a matter of law. McAuley, 251 Ga. at 7.
Judgment affirmed. Johnson, P. J., Blаckburn, P. J., Miller, Ellington and Bernes, JJ., concur. Barnes, J., concurs in part and dissents in part.
BARNES, Judge, concurring in part and dissenting in part.
Although a jury might consider the evidence in this case as the majority has and reach the same conclusion, it is not the function of this court to weigh the evidence and decide whether it was sufficient to prove the plaintiff‘s case. That role is reserved for the jury. Roberts v. Dove, 234 Ga. App. 853, 854 (1) (508 SE2d 213) (1998). Thus, because I believe that the majority and the trial court have intruded on the role of factfinder by concluding that Henning Construction‘s negligence was not the proximate cause of Cieplinski‘s injury, I must respectfully dissent from the affirmance of the trial court‘s grant of summary judgment to Henning Construction. As I find that thе trial court properly granted summary judgment to Caldwell Electrical Contractors and Fred Fairchild for other reasons that will be discussed below, however, I concur in the judgment affirming those grants of summary judgment.
The evidence in this case shows that Cieplinski‘s expert witness is a professional engineer who specialized in conveyor safety and is the author of the only book on this subject. He testified that the conveyor was improperly designed and installed in such a fashion that the materials transported on the conveyor would build up and blockages would result. Although he had difficulty in determining how frequently this had happened, it was his opinion that this could happen very often. He also testified that the lights in the tunnel were improperly installed, that an emergency cord should have been installed, and that if an emergency cord had been available, Cieplinski‘s injuries could have been diminished.
This evidence, coupled with Cieplinski‘s testimony relating how this incident happened, is sufficient to create a jury issue on whether the combined negligence of Henning and Grove River Mills (GRM) was the proximate cause of Cieplinski‘s injury. Although the majority identifies several reasons why the expert‘s opinion should not be credited, judging the credibility of witnesses is a role for the jury, not this court. Bowen Builders Group v. Reed, 252 Ga. App. 54, 56 (555 SE2d 745) (2001). Also, the evidence about Cieplinski‘s possible negligence merely raises issues concerning contributory or comparative negligence. These are affirmative defenses on which Henning, not Cieplinski, would have the burden of proof, Hodge v. Sada Enterprises, 217 Ga. App. 688, 691 (2) (458 SE2d 876) (1995), and, nevertheless, under the disputed facts in this appeal, are not capable of resolution by summary judgment. Ellington v. Tolar Constr. Co., supra, 237 Ga. at 238.
Ultimately, the burden will be on Cieplinski to prove his case by a preponderance of the evidence, but that is not his burden at this point. When responding to this motion for summary judgment, Cieplinski‘s burden is only to “point to specific evidence giving rise to a triable issue.
As for the issue of whether the negligence of GRM was an intervening cause,
the general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act. The rule that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant, would not apply if the defendant had reasonable grounds for apprehending that such wrongful act would be committed.
(Citation and punctuation omitted.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002). “Moreover, it is axiomatic that questions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.” (Citаtion and punctuation omitted.) Id. at 687. Here, given the expert‘s testimony that because of the improper design and installation, it was likely that the materials would build up and block the conveyor and that the tunnel was improperly lighted, a jury issue is created on whether it was foreseeable that as a result of the blockage, Henning could reasonably have anticipated, apprehended, or foreseen that GRM would take the actions that it did. Accordingly, this is not one of those plain and undisputed cases in which the issue of proximate cause may be resolved as a matter of law, and I must respectfully dissent from the affirmаnce of the grant of summary judgment to Henning Construction Company.
2. Although the majority affirms the grant of summary judgment to Caldwell Electrical Contractors because Cieplinski could not establish that its actions were the proximate cause of his injury, the trial court granted summary judgment to Caldwell based upon the acceptance doctrine. This doctrine provides that when
(Citations and punctuation omitted.) Peachtree North Apts. Co. v. Huffman-Wolfe Co., 126 Ga. App. 594 (191 SE2d 485) (1972). The record shows that Caldwell was hired by GRM to install lights in the tunnel consistent with OSHA standards, and after Caldwell completed the work, GRM accepted it. Therefore, even assuming that Caldwell was negligent in not installing another light switch in the tunnel, the absence of the light switch was readily observable on reasonable inspection and was not a hidden defect. Accordingly, the trial court did not err by granting summary judgment to Caldwell Electrical Contractors.
3. I would also affirm the grant of summary judgment to Fred Fairchild because, as a сonstruction design professional, Fairchild cannot be liable as a matter of law.
three express exceptions to the employee‘s right to sue a third party, granting immunity from tort liability to employees of the same employer, persons who provide workers’ compensation benefits under a contract with the employer, and “construction design professionals.”
(Footnotes omitted.) Warden v. Hoar Constr. Co., 269 Ga. 715, 716 (1) (507 SE2d 428) (1998); Cotton v. Bowen, 241 Ga. App. 543, 545 (2) (524 SE2d 737) (1999). As defined in
any person who is an architect, professional engineer, landscape architect, geologist, or land surveyor who has been issued a license pursuant to Chapter 4, 15, 19, or 23 of Title 43 or any corporation organized to render professional services in Georgia through the practice of one or more such technical professions as architecture, professional engineering, landscape architecture, geology, or land surveying.
Cowart v. Crown American Properties, 258 Ga. App. 21, 23 (1) (572 SE2d 706) (2002).
Therefore, although I concur in the majority‘s affirmance of the grants of summary judgment to Caldwell Electrical Contractors and Fred Fairchild, albeit upon other grounds, I must respectfully dissent from the grant of summary judgment to Henning Construction Company.
DECIDED JULY 5, 2006.
Matthews & Steel, John D. Steel, Douglas P. McManamy, for appellant.
Stewart, Melvin & Frost, J. Douglas Stewart, Carlock, Copeland, Semler & Stair, David F. Root, Hall, Booth, Smith & Slover, Mark W. Wortham, John C. Cheshire, for appellees.