Lead Opinion
Michael Johnson, plaintiff-appellant, appeals from the trial court’s grant of summary judgment to Kimberly Clark, defendantappellee, on his premises liability claim for a crushed thumb suffered while painting safety poles on Kimberly Clark’s premises.
Plaintiff was employed by Goodman Decorating as a painter. Goodman had contracted with Kimberly Clark to paint various structures and fixtures on its property. Each morning plaintiff and other painters reported to Goodman’s central location on Kimberly Clark’s property where they were told by Tim Day, their Goodman Decorating supervisor, to which job they were assigned. Plaintiff had been working on these premises for three or four weeks prior to the accident at issue and became familiar with the layout. No one from Kimberly Clark gave the painters directions or controlled the method or manner of their painting.
On March 30, 1994, Johnson had been assigned to a building containing four bays with machinery in them and was told by Day to paint the safety poles in the hallway and bays “safety yellow.” These poles were iron tubes,, approximately four feet high, filled with concrete and bolted to the floor around the machinery to protect it. At the bottom of each pole was a square plate with four holes, which
Plaintiff began working in the first bay around 8:00 a.m. and had painted approximately 16 poles in the first bay and 16 poles in the second bay before arriving in the third bay around lunchtime.
Over the two weeks he had been working, plaintiff had seen that the four-foot-tall and five-inch-diameter safety poles were filled with concrete and bolted to the concrete floor through small base plates just large enough that four bolts could be installed and that the nut and bolt protruded above the plates. Plaintiff was injured in the last bay to be painted, in which there were eight to ten poles; he saw for the first time that day two safety poles not bolted down and off to the side. Plaintiff did not examine the poles or pay close attention to them. The two poles were leaning against each other.
Plaintiff was asked: “Did you see them before you started painting the pole where the accident happened?” A. ‘Yeah, I assume. Yeah.” “Did you examine them?” “No. I just sat there and I was painting this pole. I was three feet away from these painting. I didn’t know they were going to fall on me. I mean, I was a good ways away from them. They wasn’t that close but” — “Did anyone tell you that the pole or poles that fell on your hand were bolted to the ground?” “No, but you could see that they was bolted at one time by the, you know, when you have got bolts on top of paint and you tighten them down and you paint over them or, well, when you take that bolt off, you have got a little silver spot on the metal because the bolt was bolted, I mean, painted on the pole; and when you move that bolt, it’s going to be a raw spot there, you know, it will be metal.” The plaintiff was not asked if he saw that there were no bolts before or after he was injured. The record fails to show that he knew that the two safety poles were not bolted down prior to his injury, and on summary judgment, we must take the inference most favorable to the non-moving plaintiff.
Because he had not inspected or painted the poles, all the plaintiff knew about the two safety poles off to the side was that there were no bolts sticking up through the base plates. He did not know: if there were any bolt stubs below the surface of the plate; if there was any internal fixation inside the pole into the concrete; if there was any mastic or cement holding the plate to the floor; if the floor beneath the plate was sloped or rough; if the safety pole was movable; if it was safer for the poles to be laid down; or if the poles should not be leaned against each other. All of the information that the plaintiff needed for his own safety was known to Kimberly Clark,
Under the facts of this case, the only people with access to the area where plaintiff was injured were either employees of Kimberly Clark or employees of Goodman Decorating, Kimberly Clark’s independent contractor. Thus, one entity or the other was responsible for the removal and negligent placement of the safety pipes, because the evidence shows no one else could have done it. Plaintiff did not place the pipes.
Under OCGA § 51-2-4, “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” “An employer is liable for the negligence of a contractor: ... (4) If the wrongful act is the violation of a duty imposed by statute.” OCGA §§ 51-2-5 (4); 51-3-1. “Because the owner or occupier’s duties to keep the premises and approaches safe are statutory (OCGA § 51-3-1), those duties are nondelegable even though the owner has a contract for another party to provide [the painting]. OCGA § 51-2-5 (4); Confetti Atlanta v. Gray,
“[Kimberly Clark] would still owe a duty to [plaintiff] to exercise ordinary care to keep the premises and approaches safe unless [Kimberly Clark] had delivered full and complete possession of the premises to [Goodman Decorating] either on a temporary or permanent basis.. Little v. Liberty Savings Bank,
If any employee of Kimberly Clark, not just the employee in the area, removed the safety poles and leaned them against each other, then such conduct was the active negligence, the knowledge of which would be imputed to Kimberly Clark. See Lipham v. Federated Dept. Stores,
Not only under OCGA § 51-3-1 did Kimberly Clark have a duty of inspection to discover the negligent acts of its employees or contractor, but under the Occupational Safety & Health Act of 1970, 29 USCS § 651 et seq., 84 Stat. 1593 (“OSHA”), Kimberly Clark had a duty to inspect “Walking-Working Surfaces” for dangerous condi
There also exists a factual question as to plaintiff’s exercise of ordinary care for his own safety. See Robinson v. Kroger Co.,
Under the facts and circumstances of this case, for purposes of summary judgment it does not matter who removed and negligently placed the safety poles, because the knowledge of such acts, as well as the negligence, is imputed to Kimberly Clark. Under Lau’s Corp. v. Haskins,
Judgment reversed.
Dissenting Opinion
dissenting.
Because the record is devoid of evidence of Kimberly Clark’s superior knowledge of the hazard presented by the freestanding poles, I respectfully dissent. This case deals with the first prong of Alterman Foods v. Ligon,
In addition to the facts set out in the majority, the record reflects that in the third bay painted by Johnson, in addition to the four poles bolted to the floor around each piece of machinery, there were two poles not bolted to the floor and “just standing there” off to the side.
There was no one else in the bay with him, and although there were Kimberly Clark personnel in the offices adjoining the bay, they could not see him because their view was blocked by a wall. Johnson stated repeatedly that he did not knock the poles over, but he did not know what happened or what had caused the poles to fall.
1. The trial court based its grant of summary judgment in large part upon the affidavit of Graf, an Operations Specialist for Kimberly Clark. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez,
On summary judgment, evidentiary rules apply, Strickland v. DeKalb Hosp. Auth.,
Here, the affidavit of Graf consists primarily of his summary of numerous conversations with unnamed Kimberly Clark employees concerning the loose poles. Such conversations after the fact are clearly hearsay, not part of the res gestae, and inadmissible. Harrison v. Golden,
Nonetheless, the grant of summary judgment should be affirmed on appeal if it is right for any reason. Deese v. NationsBank of Ga.,
2. In addition to Graf’s affidavit, discussed supra, Kimberly Clark relied on Johnson’s answers to interrogatories in which Johnson described the incident and his claim that Kimberly Clark was negligent. In addition to the facts previously set out, Johnson stated that while he was painting the bolted-down pole, “[blehind him and approximately 3 to 5 feet away, a safety pole barrier device of similar size, weight and dimensions, which was not bolted down, fell. . . . Plaintiff asserts that the negligent failure to maintain the heavy steel safety pole barrier device, filled with concrete, in a bolted down condition caused an extreme hazard to persons working at the facilities by creating the potential of the barrier becoming mobile, such as by falling and injuring a person in its vicinity.”
(b) Also, even assuming this was a defect, “ ‘ “[bjefore the owner of premises can be held liable for injuries done by reason of a defect therein to one lawfully on the premises in the employ of an independent contractor engaged by the owner to perform services on the premises, it must appear that the owner had control of the premises.” (Cits.) The basis of the owner or occupier’s liability is his superior knowledge of the existence of the defect or hazard that may subject an invitee to an unreasonable risk of harm. (Cits.)’ Amear v. Hall,
Johnson’s own testimony shows that there were no Kimberly Clark employees in the vicinity of the loose poles, nor did any such employee in any way direct how he was to do his work for Goodman. Therefore, there is no evidence of Kimberly Clark’s superior knowledge of the defect. McCurley v. Ludwig,
(c) Also, here, the fact that Johnson was in the employ of an independent contractor imposes on Goodman and Johnson the obligation to determine whether the place of employment is safe or unsafe and, ordinarily, an independent contractor or his employee may not recover against the owner for injuries sustained in the performance of the contract. Hudson v. Santangelo,
(d) Apparently recognizing the dearth of evidence of Kimberly Clark’s knowledge of the defect, Johnson urges the doctrine of res ipsa loquitur as a basis for denial of summary judgment.
“ The expression “res ipsa loquitur” means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage and the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ [Cit.]” Evans v. Heard,
The doctrine is not applied absent the showing of control by the defendant or where there is the possibility of any intervention of an intermediary cause which could have produced the injury. Parker v.
Here, as in Innes v. Dixie Svc. Center,
Innes was unable to show how or by whom the baffle pipe had been placed on the shelf before it fell and there was no one from Dixie Service present in the storage room when it fell. Under these circumstances, this Court found no application of res ipsa loquitur.
Similarly, in Sams v. Wal-Mart,
Summary judgment to Wal-Mart was affirmed because there was no showing that Wal-Mart’s knowledge of the alleged peril was superior, and the superior knowledge analysis, not res ipsa loquitur, applied. Sams, supra at 316.
Here, as in Sams, the plaintiff was unable to show exclusive control by the owner of the object causing damage, there was no explanation for the actual event causing injury, and on summary judgment, res ipsa loquitur could not be used to “fill the evidentiary gap. Proof of the occurrence of an injury, without more, is insufficient to establish liability on the part of a proprietor.” Id. at 316.
Therefore, for the reasons discussed, I believe the grant of summary judgment to Kimberly Clark should be affirmed.
I am authorized to state that Judge Blackburn joins in this dissent.