David Lee Couch filed this premises liability action against the Georgia Department of Corrections (“the Department”) seeking damages for physical injuries he sustained while working in a prison detail at Walker State Prison. The Department appeals the judgment entered on the jury’s verdict in favor of Couch. For the reasons that follow, we affirm.
In an appeal from a jury verdict, this Court must affirm the judgment “if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict.”
So viewed, the record shows that on July 9, 2004, while housed as an inmate at Walker State Prison, Couch volunteered to paint the warden’s house, which was located across from the prison. The house was under renovation, and another crew had removed the flooring in the kitchen and dining area of the home, leaving the floor joists exposed, because the floor and some of the joists were water-damaged and rotted. By the time of the incident, the Department was in the process of replacing the floor joists, but although some of the floor joists in the dining area had been rеplaced, the crew had left some of the joists that were dry-rotted.
When Couch arrived at the house, he and the other members of the painting crew traversed the kitchen and dining area by walking along the floor joists in order to retrieve painting supplies stored in the garage and to access the second floor of the home where they were painting. Couch and the other crew members were not warned about the dry rot and were not told to stay out of the kitchen and dining area. Couch testified that walking across floor joists is a common practice in residential construction and generally is not considered dangerous.
After a few times of walking through the area over the course of the day, Couch was proceeding back to the second floor when one of the joists in the dining area deteriorated and gave way beneath his foot, causing him to fall and land with his legs straddling a joist. As a result of the fall, Couch suffered a severed urethra.
The jury returned a verdict in favor of Couch in the amount of $105,417. The verdict form did not require the jury to specifically address whether Couch was an invitee or licensee. The trial court entered judgment on that verdict. The Department appeals, asserting that the trial court erred by (1) denying its motion for a directed verdict; (2) overruling objections regarding the admission of certain evidence; (3) denying its motion for mistrial; and (4) refusing to give a jury charge on the issue of voluntary departure.
1. First, the Department argues that the trial court erred by denying its motion for a directed verdict.
“A directed verdict is appropriate only if thеre is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party
(a) Specifically, the Department contends that Couch should have been classified as a licensee to whom the Department only owed a duty to refrain from wilfully or wantonly injuring Couch.
[Couch]’s status as either a licensee or an invitee determinеs the duty of care that [the Department owed him]. An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose. A licensee, on the other hand, is a person who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted tо go on the premises merely for her own interests, convenience, or gratification. The generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render [his] presence of mutual benefit to both, or was for business with one othеr than the owner or occupier.3
The Department contends that as a matter of law Couch should have been deemed to be a licensee, either because of his status as a prisoner or because he left the area of the home in which he was invited to be and entered an area of the home where he was not invited and then became injured. Nevertheless, wе need not address this question.
When there is conflicting evidence as to the legal status of the injured party, the question is rightfully left to the jury.
(b) The Department also contends that Couch had equal knowledge of the dry rot that caused his fall because he had traversed the floor joists several times before he fell and that Couch failed to exercise due care for his own safety as a matter of law. We disagree.
The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputablе. It is the plaintiffs knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely [his] knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids.6
In this case, the trial court correctly allowed the case to go to a jury because although there was no question that Couch was aware of the phenomenon of dry rot in general and was aware that one could fall from a floor joist, there was no evidence that he was aware of any dry rot in these particular floor joists. Therefore, a question of fact existed as to whether Couch was aware or should have been aware of the hazard after walking over the area prior to his fall.
(c) The Department сontends that the trial court erred by denying its motion for a directed verdict because Couch assumed the risk of injury by traversing the floor joists. Again, we disagree.
“[E]xcept in plain, palpable!,] and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of contributory negligence and assumption of risk are for the jury.”
Absolutely fundamental to any assumption of the risk analysis is knowledge of the risk involved, which must be both actual and subjective — the knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. Significantly, a plaintiffs comprehension or general understanding of nonspecific risks that might be associated with the activity at issue is not sufficient. Rather, in its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.12
The undisputed testimony of the record established that Couch had previously worked in the сonstruction industry and was of the opinion that walking along exposed floor joists was a reasonable, common practice, and that he expected any rotten areas to be cordoned off or warned about; although he was aware that wood could rot, he was not aware of a specific risk that the wood over which he walked was rotten so as to expоse him to the risk of having a portion of the joist deteriorate under his foot as he traversed the area.
2. Next, the Department contends that thе trial court abused its discretion by denying its motion for mistrial after the admission of the opinion of Dr. Joseph Paris regarding the liability of the Department for the cost of Couch’s treatment. We disagree.
When ruling on a motion for mistrial, a trial court is vested with broad discretion, and this Court will not disturb the ruling absent a manifest abuse of discretion.
Couch presented the testimony of Dr. Norman Fitz-Henley via deposition at trial. Prior to trial, the parties’ attorneys conferred regarding the deposition, and the two had agreed to redact certain portions. Couch’s
After the statement above was read to the jury from Fitz-Henley’s deposition, the Department objectеd, and the jury was removed from the courtroom. The attorneys discussed the situation with the court, and the Department moved for a mistrial based on the testimony. The trial court overruled the motion, but issued a curative instruction to the jury directing them to disregard the testimony, and the remainder of Fitz-Henley’s deposition (approximately 60 pages of testimony) was then read to the jury.
Here, although the evidence was prejudicial, the nature and context of the statement — mere reference to an e-mail discussion, which included the phrase “in my opinion,” from a nontestifying physician presented as an exhibit to another physician’s deposition that was subsequently read to the jury — was insufficient to fatally infect the verdict and demand a mistrial.
3. The Department contends that the trial court errеd by overruling certain objections to testimony presented at trial. We disagree.
“A trial court’s rulings with respect to evidence relevancy will not be reversed absent abuse of discretion. Moreover, if the evidence offered by a party is of doubtful relevancy, it should nevertheless be admitted and its weight left to the jury.”
(a) First, the Department contends that the trial court erred by overruling its objection to Couch’s testimony regarding whether the Department promised to pay for his future medical care. We disagree.
The citations to the record provided by the Department sрan a number of pages that include several objections to Couch’s testimony and the tender of documentary evidence to which the Department objected. Couch’s testimony addressed whether he asked to receive treatment while he was in prison, and whether he ever refused offered treatment while he was in prison. Couch did not testify that anyone at the Department promised to pay for his treatment, but that a nurse named Mike Patterson explained to Couch that he could schedule surgery after his release. The trial court sustained the Department’s objection to this testimony. The trial court did allow into evidence a document entitled “Georgia Department of Corrections Refusal of Treatment Against Medical Advice,” which stated that rather than receive treatment at the Medical College of Georgia, an appointment for further treatment would be scheduled for Couch at another location subsequent to his release; the document did not include any specific language binding the Department to pay for any treatment. Because the issue of whether Couch refused offered medical service while he was in prison was relevant to the issues of the amount of damages and the extent of any problems related to delayed treatment, the trial court
(b) Next, the Department contends that the trial court erred by overruling its objections to Couch’s testimony that he wanted treatment while in prison because he had no money and no insurance, and the court’s error was compounded when Couch’s counsel argued at closing that the Department intentionally delayed scheduling his treatment. As previously stated, this testimony was relevant to establish that Couch did not refuse treatment while in prison. Thus, we discern no abuse of discretion on the part of the trial court by overruling the Department’s objection to the testimony.
To the extent that Couch’s attorney’s closing argument included argument of these facts, they were supported by the evidence at trial and were made as part of the attorney’s larger argument that Couch did not refuse treatment while he was incarcerated, contrary to the refusal-of-treatment form.
(c) The Department also contends that the trial court erred by overruling its objections to the admission of imрroper character evidence with regard to Officer Jeffrey Woolridge, who was supervising Couch and the other inmates on the painting detail on the day in question. As an initial matter, we note that the trial court sustained the Department’s objection to the admission of evidence of a domestic incident in which Woolridge may have been involved. With regard to impeachment of Woolridge regarding whether he had received previous reprimands at work, we discern no abuse of discretion. Woolridge contended at trial that he instructed the inmates, including Couch, to stay out of the kitchen, and thus, his diligence about observing and supervising inmates was relevant to the issues of the Department’s duty to Couch while he was in the area at the time of his fall, and Couch’s knowledge of the danger of the area in question.
4. Finally, the Department argues that the trial court erred by refusing to give a jury charge on the issue of voluntary departure. We disagree.
At issue, is the following requested charge:
It is incumbent upon the plaintiff to use the degree of care necessary under the circumstances to avoid injury to himself. The reasonable selection of a route of travel is part of a person’s duty to exercise ordinary care for his own safety. Where a person voluntarily departs from the route designated and maintained by the owner for the person’s safety and convenience, the degree of caution owеd by the person to exercise ordinary care for his own safety is heightened by any increased risk that results from his choice of path.
“In order for a trial court’s refusal to give a party’s written requested charge to be error, the request must be adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. ... In reviewing an allegedly erroneous jury instructiоn, we apply the plain legal error standard of review.”
Here, the Department has failed to establish harm as a result of the trial court’s refusal to instruct the jury on the charge as stated above.
Even though a request to charge may be apt, correct and pertinent, it is not necessarily error to fail to charge it. We must look to the charge as a whole to determine whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.24
Viewed in this light, the trial court correctly instructed the jury on the issues embodied in the Department’s requested charge through the court’s charges regarding the definition of negligence and ordinary care, duties to invitees and licensees, implied invitation, scope of invitation, static defects, avoidance of the consequences, contributory negligence, and assumption of the risk. Accordingly, this enumeration is without merit.
5. Couch’s motions to strike portions оf the Department’s reply brief are denied as moot.
Judgment affirmed.
Notes
(Punctuation omitted.) Freese II v. Moses,
(Punctuation omitted.) Ramcke v. Ga. Power Co.,
(Punctuation and footnotes omitted.) Howard v. Gram Corp.,
See Shaw v. McDonald’s Restaurants of Ga.,
Cf. Freese II,
(Citations and punctuation omitted.) Nosiri v. Helm,
See id.
(Punctuation omitted.) Id.
(Citations and punctuation omitted.) Nosiri,
Id. at 382 (2).
(Citations and punctuation omitted.) Baker v. Harcon, Inc.,
See, e.g., The Augusta Country Club v. Blake,
See Sangster v. Dujinski,
(Citation and punctuation omitted.) Id. at 217.
See Travelers Indem. Co. v. Wilkes County,
(Punctuation omitted.) Kilday v. Kennestone Physicians Center,
(Punctuation omitted.) Id. at 820 (1).
See id. at 820 (1) (a).
See Davenport v. Yawn,
See Smith v. State,
(Punctuation omitted.) Thompson v. Princell,
(Citation and punctuation omitted.) Id. at 261 (b).
See Ga. Dept. of Transp. v. Miller,