Lead Opinion
We granted these interlocutory appeals to review the trial court’s denial of the motions for summary judgment of appellants Seay and Whirlpool. Both appeals have been consolidated in this court.
This action was brought by appellee to recover for injuries he
The kitchen contained a Whirlpool gas oven and range with continuous pilot lights for the oven and top burners. The pilot lights were located within the appliance and exposed to surrounding air. It is undisputed that the pilots were burning at the time of the explosion. Also located in the kitchen at the time of the explosion was a refrigerator allegedly manufactured by Hotpoint Appliances, a former defendant in this action. Hotpoint has been granted summary judgment by the trial court and that order is not in issue on appeal.
Appellee testified during his deposition that he “saw a stove” in the kitchen but that he “did not check the appliances.” Appellee also testified that it was his experience that gas stoves had pilot lights. When asked to give his opinion about the cause of the explosion, he stated: “The only thing I could figure after laying in the hospital and thinking about it, the only exposed flame that could have been in that room would have been ... from the oven.” He stated in an affidavit offered in opposition to Seay’s motion that “[o]n [the date of this incident] I did not know that the fumes and/or vapor from mineral spirits and/or gasoline could be ignited by a gas pilot light on a gas stove. At that time, it was my information and understanding that ignition of mineral spirits and/or gasoline could occur only if there was direct contact between a fire, spark or other source of ignition and the mineral spirits and/or gasoline.” In his deposition he stated that he was “not sure” whether the fumes from mineral spirits could be ignited. Appellee further testified in his deposition that Seay did not warn him of the gas stove, nor did he ask Seay about any of the
Seay testified in her deposition that she did caution appellee about the gas stove. She was aware that the gas stove had open pilot lights, and she was generally aware of the danger of exposing gasoline or mineral spirits to sources of ignition.
1. It is axiomatic that “[i]n summary judgments, all inferences, and all ambiguities, and all doubts, are resolved against the movant... and in favor of the party opposing the grant of summary judgment.” Summers v. Milcon Corp.,
Seay’s Motion for Summary Judgment
2. Against these unassailable principles governing review of summary judgment motions, we must apply the following relevant facts to Seay’s motion: (1) the explosion was caused by the combination of the vapors or fumes from the gasoline or mineral spirits with one or more of the pilot lights in the stove; (2) Seay knew of the existence of the pilot lights and a potential danger associated with exposing gasoline or mineral spirits with sources of ignition; (3) Seay did not warn appellee of the existence of the gas stove or the pilot lights; (4) appellee knew of the flammable or combustible nature of mineral spirits and gasoline; (5) appellee knew and understood the danger associated with the contact of sparks, fire, or flame with gasoline or mineral spirits, although he did not know that mere contact between the vapors or fumes from gasoline or mineral spirits with fire or sparks could cause an explosion; (6) appellee knew to keep fire, sparks, and other sources of ignition away from the room in which he was working with mineral spirits and gasoline; (7) appellee knew there was a stove in the kitchen in which he was working; (8) appellee knew that gas stoves have pilot lights; (9) appellee did not check to see the type of stove in Seay’s kitchen or make any inquiry of Seay; (10) appellee made the decision to use mineral spirits and gasoline to remove the carpet backing and adhesive; (11) appellee had some experience in the removal and
Appellee relies on the standard set forth in Tect Constr. Co. v. Frymyer,
We hold that the facts of this case, even when viewed most favorably for appellee, do not support his cause of action against Seay. As can be seen from the quote from Tect Construction above, the key to the imposition of liability in these situations is “the proprietor’s... superior knowledge.” See Amear v. Hall,
Appellee argues, however, that he did not appreciate the danger of soaking the floor next to a gas stove with mineral spirits and gasoline because he did not know that the fumes from these substances could be ignited. However, when viewed most favorably toward appellee, the evidence at best demonstrates that Seay’s knowledge in this regard was only equal to that of appellee. Both admittedly knew that it was dangerous to work with gasoline or mineral spirits around sources of ignition, but there is no evidence that Seay knew more about these substances’ technical propensities for combustion than did appellee. To the contrary, in this case a homeowner, regularly employed as a secretary, hired an allegedly experienced floor tile mechanic to tile her kitchen floor. The record unequivocally belies any assertion that Seay had greater understanding than appellee regarding the potential hazards of the task undertaken. “In an action by a servant against a master for alleged failure of duty on the part of the latter in not giving to the servant warning of a danger incident to his employment, it must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it.” Hendrix v. Vale Royal Mfg. Co.,
3. There is an additional reason why Seay cannot be liable to appellee. Although the issue has not been addressed directly by the parties, the record clearly establishes that the relationship between Seay and appellee was that of employer/independent contractor. It is undisputed that Seay agreed to pay appellee $125 for his labor in removing the existing carpet, cleaning the floor, and installing the tile. Appellee controlled the time, manner, and method of executing the work. “The test historically applied by this Court has been . . . whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. [Cits.]” Amear,
4. “An individual contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance on the contract.” Amear, supra, p. 167. Thus, although the owner/employer’s duty of care is the same whether the injured party is an invitee, employee, or independent contractor, a greater duty of care is placed upon the independent contractor than upon the employee to insure that his method and means of performing his work is safe in view of the workplace, since the contractor has discretion over the method and means. Appellee alone chose to use mineral spirits and gasoline to aid in removal of the carpet backing and adhesive, and he chose not to inspect the surrounding appliances for sources of ignition. Since appellee had “as much knowledge as [Seay did] . . . [he] assume [d] the risks and dangers incident to the . . . condition [of which he should have known].” Id., p. 168.
Whirlpool’s Motion for Summary Judgment
Appellee’s allegations against Whirlpool arise from his theory that the stove was the source of ignition causing the explosion and fall into two categories: (1) defective or negligent design in failing to isolate or protect the pilot light from contact with vapors or fumes and in failing to include a pilotless ignition system; and (2) failure to provide sufficient warnings concerning the alleged latent dangers of the stove. The complaint sounds in both negligence and strict liability pursuant to Code Ann. § 105-106 (OCGA § 51-1-11).
5. The facts mandating judgment for Seay also mandate judgment for Whirlpool. Pretermitting the questions of whether the stove was defective in any particular, whether there was negligence in its manufacture, design, or lack of warnings, or whether appellee was “using” the product in a foreseeable manner, we hold that appellee, as a matter of law, assumed the risk of any injury accruing from his contact with the stove under the circumstances of the present case. We have already held that appellee should have discovered that the stove had pilot lights, due to the undisputed facts that he was aware of the stove, that it was his personal experience that gas stoves had pilot lights, and that he was aware that all sources of ignition should be kept away from the substances he was applying to Seay’s kitchen floor. “ ‘[I]t is well-established that there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known, or of which the person who claims to be entitled to the warning has actual knowledge. The same rule applies where it appears that the person using the product should know of the
As appellee himself testified, the fact that gasoline “would ignite” is “one of the warnings you learn early in life.” His actual knowledge of this property of gasoline and mineral spirits is the reason he warned Seay not to strike any matches or smoke in the room in which he was working. He cannot hide behind his sworn statement that he did not know the vapors or fumes from the substances could be ignited by the pilot lights, for the record repeatedly establishes that he was aware that no source of ignition should have been present in the kitchen while he was working with the mineral spirits and gasoline. It is not important whether he knew the precise, physical nature of the hazard presented by his “use” of the product; it is sufficient if he is aware generally that the “use” being made of the product is dangerous. Under the facts of this case, appellee clearly knew that it was dangerous to soak the floor adjacent to a gas stove with gasoline and mineral spirits. Accordingly, he cannot recover from Whirlpool for the injuries sustained in the resulting explosion, either under a theory of strict liability (Hunt, supra; Center Chemical Co., supra), or under a theory of negligence (Code Ann. § 105-603 (OCGA § 51-11-7); Union Carbide Corp. v. Holton,
We are aware of the statement in Brooks v. Douglas,
This court has held repeatedly that a “manufacturer is under no duty to guard against injury from an obvious or patent peril.” Greenway v. Peabody Intl. Corp.,
6. Although issues such as those presented by this case are normally reserved for the jury, they are subject to summary adjudication in indisputable cases. Chapman v. St. Francis Hosp.,
Judgments reversed.
Lead Opinion
On Motion for Rehearing.
Appellee has argued in part on motion for rehearing that this court has adopted an “objective” standard for determining the applicability of assumption of the risk to product liability actions. This is a misinterpretation of our holding in this case. As we have pointed out, it is appellee’s admitted knowledge of the alleged product defect and his admitted appreciation of the danger associated therewith that bar him from recovery against Whirlpool. It is appellee’s admitted knowledge, and not the obviousness, from an objective standpoint, of the hazard resulting in the subject incident that forms the basis of our holding^
The application of the assumption of the risk doctrine has been reaffirmed by the Supreme Court in Deere & Co. v. Brooks,
Concurrence Opinion
concurring specially.
I completely agree with the majority that the trial court erred in denying each appellant’s motion for summary judgment. With regard to Division 6 of the majority opinion, I agree that Giordano v. Ford Motor Co.,