Tolar Construction Co. v. Ellington
225 S.E.2d 66
Ga. Ct. App.
1976
Check Treatment

*1 v. COMPANY CONSTRUCTION TOLAR 51174. et al. ELLINGTON 29, 1975 Decided February Argued September Rehearing denied March Schultz, Neely, Hawkins, Richard Freeman appellant. Tabb, III, for William G. Lowery, Henry Nickerson, D. John

Thomas appellees. Judge. Presiding

Deen, predicated upon defendant’s suit is alleged negligence requiring to work working surroundings were conditions which and under To hold to his hazardous must be in breach of some defendant liable tort he §§ plaintiff. 105-103, 105-104. Here owed to the Code only duty plaintiff-invitee defendant, owed to general contractor, take reasonable was to who was the likely injuries arise from him from measures to hidden places unusual in construction defects danger. Co., 115 Ga. Chambers Peacock not know does Thus knowing danger such means of has not may not know care the exercise of fact, and thereof, a devolves the defendant to exercise protection plaintiff. reasonable care to afford Holman v. American Auto. Ins. 201 Ludd, 850); 429); Wilkins, "If *2 easily obvious, and as known to the servant as to the failing give master, the latter will not be liable for to warning McNally, of it.” Crown Cotton Mills v. 123 Ga. 35 13). If SE the servant "had means with the discovering danger, any injury resulting master of to him would be the result of his own fault.” McDonnell v. (44 Co., Central Ga. R. 86, 118 Ga. 89 SE study A of the cases convinces me that in such a plaintiff alleges situation, dangerous if knowledge no jury question condition, a is as to his ordinary exercise of care for his own (174 178) App. A. R. Co., 121 Ga. 259 SE2d (plaintiff danger); Mozley "unaware” of the v. Beers (102 645) App. Co., (plaintiff 97 Ga. 217 SE2d stepping shaft); Wynne backwards into unseen stairwell (126 388) v. Southern Co., Bell Tel. & Tel. (plaintiff patent defect); with no actual notice of App. supra Chambers v. Co., Peacock Constr. 115 Ga. unaware). (plaintiff In cases, these where no or awareness of the plaintiff admitted, defect is whether the maintaining a "reasonable lookout” would be jury. App. Chotas v. J. P. Allen & 113 Ga. 731 (149 SE2d plaintiff On the other hand, acknowledges danger, awareness of he will be barred recovery. from Shipley, App. Batson-Cook Co. v. 134 Ga. (214 176) (plaintiff hole); 210 SE2d Braun v. (111 100) Wright, App. (plaintiff 100 295 SE2d aware darkness); McDonough Constr. Co. v. Benefield, 104 Ga. (121 665) App. (plaintiff dangerous 367 SE2d knew condition); Conditioning Harris v. Bethel Air & Elec. (150 710) App. obvious); Dekle 114 (danger 255 SE2d 654) App. Todd, (plaintiff 132 Ga. cogniz danger). ant of against Other cases have been resolved plaintiff, apparently that the condition caus ing injury danger.” was not an "unusual Nechtman v. B. 633) Thorpe (excava Co., 99 Ga. site); building tions on 881) guardrails). (porch without denying

The vast of the cases language s in terms their couch safety” ordinary his own care for "failure to exercise of his risks he "assumes or because employment.” is that when means All this de- dangerous is seen condition duty protect is ends; the fendant’s longer by dangerous injured if hidden. Thus defendant-general aware, the which he is condition of and is not is under no being negligence, there actionable dangers. only hidden or unusual from warn or when the 10 foot hole be "hidden” How can a plaintiff foot acknowledged being of it? What exhaust fans "unusual” about holes in the roof for skylights building in a under construction? was aware

Here injury. did not see That he condition resulted *3 immediately mitigate his does not the hole before his fall walking responsibility injury own for he was his in he knew there backwards were holes. choice on roof which

Being holes, of the the he was aware potential his under a to use hazards and was also progress. sight in backward to discover hole his Hines, Funeral Home Herschel McDaniel Royal Bros. I in Garrett am of 294), that the conduct to the effect negligent be as a of a be declared to defendant cannot jury usually ofthe the arbiter matter oflaw and that the nothing question alleged negligence. in Garrett There is of finding negligence prevent as a matter of no however to interrogatory and admits of law where the potential pleadings danger, the of that he was aware have been the showing pierced by owes that the defendant a plaintiff regard to that with further any duty, owing the not defendant and, not the negligence. of actionable J., Judgment Bell, C. reversed. JJ., Evans Clark, Marshall, concur. and Quillian, Webb Stolz, JJ., dissent. Judge, dissenting. Stolz, opinion appears be founded opening that of the in roof bars his as a matter law. At the time opening, process fell in into he was spreading covering a hot tar on the roof with a roller. To accomplish necessary, practical task, it his for all purposes, pulling backwards, for the to walk plaintiff generally hot tar and While roller.1 knew about roof, the holes in the he testified that he had not seen the hole into which he fell. The record shows that the general defendant, the this on construction project, openings was well aware of the on the roof that workers, such as the would be on the roof performing their various Nevertheless, duties. placed opening defendant no barricades around the question day plaintiffs injury. on the Issues negligence, contributory negligence, assumption of risks susceptible summary adjudication, and the like are not peculiarly province jury.2 but are within the I Since feel that a factual issue is by jury,

should judgment be resolved I affirm would Superior of the Fulton Court.

I Judge am authorized to state that Evans concurs this dissent.

1 Obviously, plaintiff pushed the hot tar and just-rolled roller, tar, he would have to walk hot resulting consequences. with the foregoing 2 Foran excellent discussion a case factually bar, similar the case at v. R. see A. This opinion Presiding Judge was written then *4 Justice) Hall, Bell, with concurrences C. (now

J., Deen, Quillian Evans, Whitman, JJ. J. deceased) (now judgment. Jordan, concurred P. J. Justice) deceased) Eberhardt, J. dissented.