KMC ACQUISITION CORPORATION v. ESCOE INDUSTRIAL MECHANICAL INC
Filing
62
ORDER granting 42 Motion for Partial Summary Judgment; denying as moot 56 Motion for Hearing. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 3/28/2018 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
KMC ACQUISITION CORPORATION:
d/b/a KIRKHILL MANUFACTURING :
COMPANY,
:
:
Plaintiff,
:
:
No. 3:15‐CV‐119 (CAR)
v.
:
:
ESCOE INDUSTRIAL MECHANICAL,
:
INC.,
:
:
Defendant.
:
___________________________________ :
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is Plaintiff KMC Acquisition Corporation d/b/a Kirkhill
Manufacturing Company’s Motion for Partial Summary Judgment. Plaintiff seeks
summary judgment as to Defendant Escoe Industrial Mechanical, Inc.’s liability for
negligence and breach of contract regarding an incident at Plaintiff’s rubber
manufacturing facility in Athens, Georgia. The Court has thoroughly considered the
relevant facts and applicable law, and, for the reasons explained below, GRANTS
Plaintiff’s Motion [Doc. 42].
LEGAL STANDARD
Summary judgment is proper if the movant “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
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law.”1 The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact” and that entitles it to a judgment as a matter of law.2 If the moving party
discharges this burden, the burden then shifts to the nonmoving party to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact.3
The Court must view the facts, and any reasonable inferences drawn from those
facts, in the light most favorable to the party opposing the motion.4 “The inferences,
however, must be supported by the record, and a genuine dispute of material fact
requires more than ‘some metaphysical doubt as to the material facts.’”5 In cases where
opposing parties tell different versions of the same events, and one is “blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts.”6 A disputed fact will preclude summary judgment
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Catrett, 477 U.S. at 323 (internal quotation marks omitted).
3 See Fed. R. Civ. P. 56(e); see also Catrett, 477 U.S. at 324.
4 Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010); Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.
1992).
5 Logan v. Smith, 439 F. App’x 798, 800 (11th Cir. 2011) (quoting Penley, 605 F.3d at 848).
6 Pourmoghani‐Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010) (per curiam) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)).
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only “if the dispute might affect the outcome of the suit under the governing law.”7
“The court may not resolve any material factual dispute, but must deny the motion and
proceed to trial if it finds that such an issue exists.”8
BACKGROUND
Plaintiff filed this negligence and breach of contract action after an industrial
rubber mixer Defendant was installing fell to the floor of Plaintiff’s facility causing
significant damage. Plaintiff contends Defendant is responsible for the damage
because Defendant plainly should have known the mixer was too heavy for the
equipment it used to lift it. Defendant counters it reasonably thought the equipment
could sustain the weight of the mixer. The facts taken in the light most favorable to
Defendant, as the non‐moving party, are as follows.
In 2012, Plaintiff solicited bids from contractors to remove and replace an
industrial rubber mixer that had fallen below standards at its Athens, Georgia rubber
manufacturing facility. Defendant won the bid based on its representation it could
perform the full turnkey operation, meaning, in addition to physically moving the
mixers, it could disconnect and reconnect all the utilities. Defendant’s project manager
was Brandon Escoe. Plaintiff’s project was the first project Escoe quoted or worked on
Penley, 605 F.3d at 848.
Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981). In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all the decisions of the
former Fifth Circuit handed down prior to the close of business on September 30, 1981.
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as a project manager, and he had not previously worked on a job involving the
removal and installation of a commercial mixer.9
Prior to bidding, Escoe visited Plaintiff’s facility at least twice to do a walk‐
through and discuss the project with James Welch, Plaintiff’s plant manager. 10 Welch
told Escoe the beam installed in the facility had previously been used to change out
mixers, but he was unsure if the chain fall11 attached to the beam had previously been
used; however, Welch said Escoe could use the chain fall to move the mixer if he
wanted.12 Welch told Escoe “he wanted to do the job as cheap as possible,” and
Plaintiff’s current beam and chain fall system were built “specifically” for moving
mixers.13 However, Escoe testified Defendant was not required to use Plaintiff’s
equipment.14
On September 14, 2012, Defendant prepared a proposal for Plaintiff. The
Proposal states:
[Defendant] will supply labor, material and equipment to complete the
following:
Remove flooring and piping
Remove old mixer and install new mixer
Install flooring and re‐install piping[.]15
Brandon Escoe’s Dep., [Doc. 45‐2] at p. 17‐18, 23.
Id. at 30‐31; James Welch’s Dep., [Doc. 45‐1] at p. 45‐46.
11 The terms chain hoist and chain fall are used interchangeably by the parties and refer to the same
equipment.
12 James Welch’s Dep., [Doc. 45‐1] at p. 52‐54.
13 Brandon Escoe’s Dep., [Doc. 45‐2] at p. 30‐31.
14 Id. at 36.
15 Escoe Contract, Ex. 4, [Doc. 42‐4] at p. 1.
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The Proposal also states: “BUYERS ACCEPTANCE OF THIS PROPOSAL SHALL
CONSITUTE A VALID AND BINDING CONTRACT BETWEEN THE PARTIES AND
ALL PRIOR PROPOSALS, DISCUSSIONS AND AGREEMENTS RESPECTING THE
SUBJECT MATTER HEREOF ARE CANCELED.”16 Plaintiff’s President Ed Reker
executed the Proposal.17 The Proposal contains no terms regarding Defendant using
Plaintiff’s equipment.
To remove the old mixer, Defendant used Plaintiff’s already installed beam and
chain hoist. It is undisputed both the beam and the chain hoist were clearly labeled
they could support maximum weight of ten tons, or 20,000 pounds.18 Defendant used
new straps rated for at least 40,000 pounds to secure the old mixer to Plaintiff’s chain
hoist.19 After securing the old mixer to Plaintiff’s chain hoist,20 Defendant lifted it eight
Id. at 2 (emphasis in original).
Id.
18 The chain hoist “had ‘permanently affixed and legible identification markings as prescribed by the
manufacturer that indicate the recommended safe working load’ of 10 tons.” Pl.’s Engineering Report, Ex.
8, [Doc. 44‐8] at p. 12. “The beam that was used is clearly marked with the load limit 10‐tons.” Id. See also
Def.’s Resp. to Pl.’s.’ Stmt. of Mat. Facts, [Doc. 52] at para. 16‐17.
19 Ray Myers testified Defendant’s crew rigged the old mixer by putting four 40,000 pound, new donut
chokers/straps around it and attaching this to the chain hoists. He also testified the mixer was way
overrated on the rigging. Thurman “Ray” Myers’ Dep., [Doc. 45‐4] at p. 25‐26. Escoe testified that the
straps were each rated 24,00 pounds in a straight pull, but 42,000 pounds in a basket, and he thought total
rating on the straps in the basket formation was 84,800 pounds. Brandon Escoe’s Dep., [Doc. 45‐2] at p. 51.
20 Ray Myers testified he thought Defendant used two 20‐ton chain hoists to move the mixer. However,
Defendant does not dispute that it used one chain fall. See Def.’s Stmt. of Mat. Facts, [Doc. 51] at para. 11
(Defendant. . . hooked the straps to the chain fall.”); Excerpt of Derrick Poulnot’s Dep, Ex. 5, [Doc. 49‐5] at
p. 26‐27 (“Q. Are there more than one overhead hoists at Kirkhill? A. No.”). Defendant simply uses this
testimony to rebut Plaintiff’s allegation that Ray Myers knew the chain hoist was rated 10 tons. See Def.’s
Brief in Opposition of Pl.’s Motion for Summary Judgment, [Doc. 49] at p. 8. Brandon Escoe testifies
Defendant used one chain fall, as does Plaintiff’s Engineering Expert. Brandon Escoe’s Dep., [Doc. 45‐2] at
p. 52‐53; Pl.’s Engineering Report, Ex. 8, [Doc. 44‐8] at p. 16. Therefore, Myers’ testimony is not sufficient
to create a genuine issue of material fact as to Defendant’s negligence or lack thereof.
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to ten feet out of its hole and manually pushed it along the beam attached to the
ceiling, until it could be lifted by a crane out of the building. The old mixer was
removed without incident. However, Ray Myers—Defendant’s lead man21 who had 20
years of industry experience22—testified that when Defendant removed the top of the
old mixer “those hoists had a hard time just lifting the top section, and that was the
lighter part of the machine.”23 Myers testified he expressed his concerns to Escoe.24
Having successfully removed the old mixer, Defendant’s crew proceeded to
install the new mixer. There is a dispute regarding Escoe’s knowledge of the new
mixer’s weight. The new mixer actually weighed approximately 34,400 pounds.25
However, the scale on the crane Defendant used to put the mixer into the building
showed the new mixer weighed 27,500 pounds.26 Escoe testified Plaintiff’s plant
manager Welch told him the new mixer weighed right at 30,000 pounds.27 Because the
Court must view the facts in the light most favorable to Defendant for the purpose of
summary judgment, the Court will assume Defendant reasonably believed the mixer
weighed 27,500 pounds.
Defendant disputes the characterization of Ray Myers as a “lead man.” However, both Brandon Escoe
and Ray Myers refer to him as such. Thurman “Ray” Myers’ Dep., [Doc. 45‐4] at p. 20; Brandon Escoe’s
Dep., [Doc. 45‐2] at p. 26.
22 Thurman “Ray” Myers’ Dep., [Doc. 45‐4] at p. 7‐19.
23 Id. at 39.
24 Id.
25 Noramex Proposal, Ex. 6, [Doc. 44‐6] at p. 1.
26 Brandon Escoe’s Dep., [Doc. 45‐2] at p. 53.
27 Id.
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Although the chain hoist was clearly labeled it was rated to lift ten tons (20,000
pounds), Escoe testified he thought Plaintiff’s chain fall was rated 15 tons (30,000
pounds).28 However, Escoe does not explain why he thought the chain hoist was rated
higher than its label, and no other evidence offers any explanation.
After setting the new mixer into the building, Defendant’s crew secured it to
Plaintiff’s chain hoist using the same straps used to remove the old mixer and moved
the mixer through the facility using Plaintiff’s chain hoist and beam.29 When
Defendant began lowering the new mixer into place, the chain hoist slipped several
inches causing the straps to “explode,” and the mixer fell five or six feet into the hole
damaging the mixer and the facility.30 The incident report Defendant created shortly
after the incident stated the fall was due to the hoist slipping which caused the straps
to break.31 It is clear the mixer weighing 27,500 pounds (as believed by Defendant) was
more than Plaintiff’s chain fall, labeled for 20,000 pounds, indicated it could support.
Defendant removed the fallen mixer using two rented 20‐ton chain hoists
attached to Plaintiff’s beam.32 Once it was removed, Defendant shipped the mixer to its
shop to be repaired.33 Defendant hired an engineering consultant to inspect Plaintiff’s
beam to determine if it was safe to use to reinstall the mixer after the mixer was
Id. at 52‐53.
Id. at 46‐47.
30 Id. at 49‐50, 61; James Welch’s Dep., [Doc. 45‐1] at p. 114, 125.
31 Brandon Escoe’s Dep., [Doc. 45‐2] at p. 60‐61.
32 Id. at 57.
33 Id. at 66‐69.
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repaired.34 The consultant determined the beam should not be used to lift the mixer
without “substantial structural retrofits.”35 Plaintiff ultimately hired another company
to install the mixer.36
For the purpose of this litigation, Plaintiff hired an engineering expert to
investigate the incident. Plaintiff’s expert opines “[t]he mixer fell as a direct result of
Mr. Escoe’s lack of understanding or care for the regulations or industry standards,”
such as an inaccurate understanding of the weight of the mixer, the rating of the
equipment, and the effect of the straps’ angles on their effectiveness. 37 Plaintiff filed
suit in this Court pursuant to the Court’s diversity jurisdiction seeking to recover
damages to the mixer, the facility, and lost profits. Defendant filed a counterclaim
seeking payment Defendant alleges Plaintiff owes it under the contract.
DISCUSSION
Plaintiff brings six claims under Georgia law against Defendant: negligence,
breach of contract, negligent performance of contract, gross negligence, attorney’s fees,
and punitive damages.38 Plaintiff seeks summary judgment as to Defendant’s liability
on its negligence and breach of contract claims.39
Id. at 71‐72, 76.
Def. Sheats Expert Rep., Ex. 10, [Doc. 44‐10] at p. 3.
36 Brandon Escoe’s Dep., [Doc. 45‐2] at p. 73‐74.
37 Pl.’s Engineering Report, Ex. 8, [Doc. 44‐8] at p. 16‐17.
38 Because Plaintiff filed this action against Defendant pursuant to this Court’s diversity jurisdiction, “the
substantive law of the forum state applies.” Flintkote Co. v. Dravo Corp., 678 F.2d 942, 945 (11th Cir. 1982).
39 Plaintiff asserts they are seeking summary judgment as to liability on all claims, however, Plaintiff only
submits argument regarding its negligence and breach of contract claims.
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I.
Negligence
Plaintiff’s Complaint states both an ordinary negligence claim and a
professional negligence claim. Although Plaintiff does not specify it is seeking a claim
for professional negligence, whether a professional negligence claim is stated “is a
question of law for the court, regardless of how the plaintiff categorizes it.”40 If “the
allegations of negligence against a professional involve the exercise of professional
skill and judgment within the professionalʹs area of expertise, the action states
professional negligence.”41 In other words, “[i]f a claim of negligence goes to the
propriety of a professional decision rather than to the efficacy of conduct in the
carrying out of a decision previously made, the claim sounds in professional
malpractice.”42 “However, administrative, clerical, or routine acts demanding no
special expertise fall in the realm of simple negligence.”43
Here, Plaintiff challenges both Defendant’s professional decision to use
Plaintiff’s chain hoist as well as Defendant’s act of using the chain hoist itself. Thus,
Plaintiff states a claim for professional negligence and a claim for simple negligence.
To establish ordinary or professional negligence under Georgia law, Plaintiff must
show “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty;
Hamilton‐King v. HNTB Georgia, Inc., 311 Ga. App. 202, 203–04 (2011) (citing Pattman v. Mann, 307
Ga.App. 413, 415–416, 701 S.E.2d 232 (2010)).
41 Id. at 204.
42 Id.
43 Id.
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(3) a causal connection between the conduct and the resulting injury; and (4) damage
to the plaintiff.”44 As explained below, no genuine issue of material fact exist as to
Defendant’s ordinary negligence and professional negligence, and thus Plaintiff is
entitled to summary judgment in this case.
The Court recognizes that questions of negligence are generally questions for
the jury and should only be decided by the court in “plain, palpable, and indisputable
cases.”45 However, in this case, Defendant plainly breached both its duty exercise
ordinary diligence and its duty to exercise the care and skill as is ordinarily employed
by others of the same profession. Thus, its negligence is “plain, palpable, and
indisputable,”46 and this is the rare case where Plaintiff is entitled to summary
judgment.
a. Ordinary Negligence
Georgia law creates a duty independent of any contractual duty47 which
“imposes an obligation upon everyone who attempts to do anything, even
gratuitously, for another, to exercise some degree of care and skill in the performance
Pattman v. Mann, 307 Ga. App. 413, 417 (2010).
Parker v. Johnson, 97 Ga. App. 261, 261 (1958); see also Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 158
(2008).
46 Parker, 97 Ga. App. at 261.
47 “A defendantʹs mere negligent performance of a contractual duty does not create a tort cause of action;
rather, a defendantʹs breach of contract may give rise to a tort cause of action only if the defendant also
breached an independent duty created by statute or common law.” Wallace v. State Farm Fire & Casualty
Co., 247 Ga. App. 95, 98 (2000) (internal citations omitted).
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of what he has undertaken.”48 Thus, in attempting to replace the mixer here,
Defendant had a duty to exercise “the degree of care which is exercised by ordinarily
prudent persons under the same or similar circumstances.”49 “It is negligence to use an
instrumentality. . . which the actor knows or should know to be so incompetent,
inappropriate, or defective, that its use involves an unreasonable risk of harm to
others.”50 “The most common test of negligence is whether the consequences of the
alleged wrongful act are reasonably to be foreseen as injurious to others coming
within the range of such acts.”51
No expert testimony is needed for an ordinary person to find lifting an object
weighing thousands of pounds with equipment not suitable for sustaining such
weight creates an unreasonable risk of harm. Here, Defendant should have known
using a chain hoist clearly labeled as rated for 20,000 pounds to lift a mixer weighing
at least 27,500 pounds was so inappropriate that its use involved an unreasonable risk
of harm. Additionally, it was reasonably foreseeable that lifting the mixer with an
underrated chain hoist could injure Plaintiff’s property.
Despite Defendant’s arguments to the contrary, no evidence creates a fact issue
from which a jury could conclude it was reasonable for Escoe to believe the chain fall
“Georgia law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for
another, to exercise some degree of care and skill in the performance of what he has undertaken.” Sutton,
290 Ga. App. at 158 (citing Blossman Gas Co. v. Williams, 189 Ga. App. 195, 197 (1988)).
49 O.C.G.A. § 51‐1‐2.
50 Restatement (Second) of Torts § 307 (1965).
51 Underwood v. Select Tire, Inc., 296 Ga. App. 805, 809–10 (2009) (citing Sims v. American Cas. Co., 131 Ga.
App. 461, 468 (1974), affʹd sub nom. Providence Washington Ins. Co. v. Sims, 232 Ga. 787 (1974)).
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was rated to support the mixer. Escoe did testify he thought Plaintiff’s chain fall was
rated to sustain 15 tons (30,000 pounds).52 However, Defendant offers absolutely no
evidence from which a jury could find this belief was reasonable. Defendant admits the
chain fall was labeled by the manufacturer to have a safe working load limit of ten tons,
or 20,000 pounds.53 There is no evidence the label was obscured, illegible, or the chain
hoist was mislabeled. Assuming it was reasonable for Escoe accept the mixer’s weight
as measured by the crane’s scale at 27,500 pounds, the mixer was still overrated for a
chain fall labeled for 20,000 pounds. The record contains no evidence or testimony that
a chain hoist can support more weight than the weight for which it is labeled. On the
contrary, Escoe testified there was no room for weight overage in performing this job.54
Thus, the only reasonable conclusion in this case is Defendant’s use of Plaintiff’s chain
hoist created an unreasonable risk of harm, thus breaching its duty to use ordinary care.
b. Professional Negligence
Plaintiff also establishes it is entitled to summary judgment on its professional
negligence claim. Because Defendant contractually agreed to undertake a professional
and skilled service for Plaintiff, Georgia law “imposes upon building contractors and
others performing skilled services the obligation to exercise a reasonable degree of
Brandon Escoe’s Dep., [Doc. 45‐2] at p. at 52‐53.
Def.’s Resp. to Pl.’s.’ Stmt. of Mat. Facts, [Doc. 52] at para. 17. The chain hoist “had ‘permanently affixed
and legible identification markings as prescribed by the manufacturer that indicate the recommended
safe working load’ of 10 tons.” Pl.’s Engineering Report, Ex. 8, [Doc. 44‐8] at p. 12.
54 Brandon Escoe’s Dep., [Doc. 45‐2] at p. at 54.
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care, skill, and ability, which is generally taken and considered to be such a degree of
care and skill as, under similar conditions and like surrounding circumstances, is
ordinarily employed by others of the same profession.”55 To prove negligence in
professional liability cases, expert testimony is generally needed to establish the
appropriate professional standards since contractors are required to “exercise that
degree of care and skill ordinarily employed by other contractors under similar
conditions and like circumstances.”56
Plaintiff’s engineering expert points to the Safety Requirements for Rigging
Qualifications and Responsibilities in the Construction Industry, promulgated by the
American National Standards Institute and the American Society of Safety Engineers
(“ANSI/ASSE”), and regulations of the United States Occupational Safety and Health
Administration (“OSHA”) to provide evidence of the standard of care in Defendant’s
industry.57 ANSI/ASSE’s “Safety Requirements” warn contractors not to use
Howell v. Ayers, 129 Ga. App. 899, 900 (1973) (internal citations omitted). see also Fussell v. Carl E. Jones
Dev. Co., 207 Ga. App. 521, 522 (1993) (internal citations omitted) (“[A] negligent construction claim arises
not from a breach of contract claim but from breach of a duty implied by law to perform the work in
accordance with industry standards. This cause of action arises in tort and exists independently of any
claim for breach of contract.”).
56 Bilt Rite of Augusta, Inc. v. Gardner, 221 Ga. App. 817, 818 (1996).
57 Although, OSHA regulations and ANSI/ASSE standards do not create Defendant’s duty here, these
standards and regulations illustrate a breach of the independent duty Defendant owed Plaintiff by
providing evidence of the standard of care. “It is true that ANSI standards, as privately established
guidelines, are admissible as illustrative of negligence. See Luckie v. Piggly–Wiggly, etc., 173 Ga. App. 177,
178(1), 325 S.E.2d 844 (1984). As to the admissibility of the OSHA regulations in this regard, see Gilbert v.
CSX Transp., 197 Ga. App. 29, 30 (1990).” Dupree v. Keller Indus., Inc., 199 Ga. App. 138, 142 (1991). Gilbert
held that OSHA regulations could be used by an expert to determine his opinion of what was industry
practice and custom. 197 Ga. App. at 30. See also Long v. Amada Mfg. Am., Inc., No. CIV.A. 1:02‐CV‐1235,
2004 WL 5492705, at *14 (N.D. Ga. Mar. 31, 2004) (“While the experts may discuss the OSHA regulations
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substandard or unsafe equipment,58 and OSHA’s regulations require workers not to
load rigging equipment in excess of its manufacturer‐indicated safe working load59
and to inspect rigging equipment prior to each use.60 Additionally, ANSI/ASSE
suggests pre‐planning for “Critical Operations,” such as jobs like the one here, where
“any power or manual mechanical device is used for hoisting, lifting, or winching is
used within 15 percent of its rated capacity (85 percent of its maximum rated
load/capacity),” or a job where “loads are moved across floors. . . of a permanent
structure.”61 These suggestions include a page of pre‐planning, pre‐briefing, and
suggested practice run considerations such as reviewing equipment needed and
calculating total load weight.62
No evidence shows Defendant undertook any of these precautions.63 Although
Defendant performed walk‐throughs prior to bidding on this project, no evidence
shows Defendant inspected the equipment, calculated the total load weight, or
performed practice runs. Indeed, Defendant asserts it knew nothing regarding the
and ANSI standards as illustrative of negligence and design defect, they must not suggest that non‐
compliance with the regulations and/or standards is conclusive as to liability.”).
58 AMERICAN NATIONAL STANDARD CONSTRUCTION AND DEMOLITION OPERATIONS, Safety Requirements for
Rigging Qualifications and Responsibilities in the Construction Industry, ANSI/ASSE A10.42‐2000 (R2010), §
3.1.1, Ex. 12 [Doc 42‐12] at p. 13.
59 Rigging Equipment for Material Handling, 29 C.F.R. § 1926.251 (a)(2)(ii).
60 29 C.F.R. § 1926.251 (a)(1).
61 ANSI/ASSE A10.42‐2000 (R2010), §§ 3.2, 3.2.1, 3.2.11, Ex. 12, [Doc 42‐12] at p. 13, 14. Plaintiff’s expert
contends that if Defendant thought the mixer weighed 27,500 pounds and that the chain hoist’s capacity
was 30,000 pounds (15 tons), this ratio is 91.2% of the hoist’s capacity, and therefore should have been
deemed a Critical Operation. Pl.’s Engineering Report, Ex. 8, [Doc. 44‐8] at p. 16.
62 ANSI/ASSE A10.42‐2000 (R2010), Appendix B, Ex. 12, [Doc 42‐12] at p. 20.
63 Escoe testified Defendant’s crew had weekly safety meetings, but there is no evidence as to what
specific safety precautions Defendant undertook. Brandon Escoe’s Dep., [Doc. 45‐2] at p. 26.
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actual weight of the mixer before beginning work.64 Assuming the mixer weighed
27,500 pounds,65 had he followed ANSI/ASSE industry standards, Defendant should
have known Plaintiff’s 20,000 pound chain fall was underrated for a 27,500‐pound
mixer. Moreover, Ray Myers, Defendant’s lead man with 20‐years industry experience,
testified he noticed the chain hoist had trouble lifting the old mixer, and he expressed to
Escoe his concerns that the chain hoist was not safe enough to hold the mixer.66
Defendant argues Plaintiff’s permission for Defendant to use its beam and chain
fall and Plaintiff’s assurance its equipment had been successfully used in the past to
change out mixers create a genuine issue of material fact as to its negligence. The Court
is unpersuaded. It was unreasonable for Defendant to conclude the chain fall would
sustain the weight of new mixer based solely on Plaintiff’s statements that the beam and
chain fall had successfully been used to change mixers in the past. No evidence reflects
the weight of the mixers previously moved with the chain hoist, or that Defendant
knew specifically when the chain hoist had last been used before it began work.67
Additionally, no evidence suggests that a chain hoist’s safety and efficiency remain
Def.’s Brief in Opposition of Pl.’s Motion for Summary Judgment, [Doc. 49] at p. 4.
Plaintiff’s expert’s report states that the crane’s computerized scale could have been off by 21%,
accounting for the discrepancy between 35,000 pounds and 27,500 pounds. Pl.’s Engineering Report, Ex.
8, [Doc. 44‐8] at p. 12.
66 Thurman “Ray” Myers’ Dep., [Doc. 45‐4] at p. 36‐37, 39‐40.
67 Defendant points to the testimony of Derrick Poulnot to support its use of Plaintiff’s chain fall. Poulnot
testifies that the chain hoist was used in 2010 to change out a mixer, but that he had no discussions with
any Escoe employees prior to Escoe beginning work. Excerpt of Derrick Poulnot’s Dep., Ex. 5, [Doc. 49‐5]
at p. 2‐4.
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static over time. In fact, Myers testified he thought the chain hoist was worn out.68
Finally, no evidence indicates it was accepted industry practice to rely solely on the
statements of a customer in deciding what equipment to use. Once Defendant agreed to
undertake this job, Defendant assumed the duty to perform the skilled services required
to complete the job with a reasonable degree of care and skill ordinarily employed by
others of the same profession. In moving a 27,500‐pound mixer with a 20,000‐pound
chain hoist, Defendant plainly failed to fulfill this obligation.
Additionally, Defendant’s argument that Plaintiff, as the owner of the chain fall,
had superior knowledge of its equipment and therefore had a duty to keep it fit for use
is also unpersuasive. “[T]he true basis of an ownerʹs liability is the ownerʹs superior
knowledge of the defect or hazard.”69 First, no evidence shows the chain fall had a
defect or created a hazard. Moreover, no evidence shows Plaintiff had superior
knowledge of the chain fall. Plaintiff did not use the chain fall in its day‐to‐day
operations. Indeed, Welch testified the chain fall was only ever used by contractors to
change out mixers.70 Finally, Defendant’s argument regarding how well its crew rigged
the mixer does not negate its negligence. No evidence explains how the care Defendant
took in strapping the mixer to the chain fall relieved the weight of the mixer on the
Thurman “Ray” Myers’ Dep., [Doc. 45‐4] at p. 37.
Cooper Tire & Rubber Co. v. Merritt, 271 Ga. App. 16, 19 (2004).
70 James Welch’s Dep., [Doc. 45‐1] at p. 35‐37.
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chain fall and beam. Thus, the Court finds Defendant’s professional negligence to be
plain and indisputable in this case.
In addition to Defendant’s indisputable breach of its duty owed to Plaintiff, no
genuine issue of material fact exists to dispute that Defendant’s actions (or lack thereof)
caused Plaintiff’s damages. Plaintiff’s expert opines “[t]he mixer fell as a direct result of
Mr. Escoe’s lack of understanding or care for the regulations or industry standards,”
such as an inaccurate understanding of the weight of the mixer, the rating of the
equipment, and the effect of the straps’ angles on their effectiveness. 71 Defendant
neither offers a countering expert opinion nor any other evidence creating any issue of
fact as to another alternative theory of causation. Therefore Plaintiff’s Motion for
Summary Judgment is GRANTED as to Plaintiff’s claim of negligence.72
II.
Breach of Contract
Plaintiff also contends Defendant is liable as a matter of law for breaching the
parties’ contract73 by failing to supply equipment and install the mixer in a fit and
workmanlike manner. To establish a breach of contract claim under Georgia law,
Plaintiff must show “the (1) breach and the (2) resultant damages (3) to the party who
Pl.’s Engineering Report, Ex. 8, [Doc. 44‐8] at p. 16‐17.
Plaintiff also contends Defendant breached their duty to have qualified employees perform the job. The
Court finds it is not clear and indisputable that Defendant’s employees were not qualified. However,
since Defendant was negligent as to using proper equipment, this second basis for liability is irrelevant.
73 Defendant takes issue with Plaintiff’s characterization of the September 14, 2012 Proposal as a
“Contract;” however, Defendant’s own language in the Proposal states “BUYERS ACCEPTANCE OF
THIS PROPOSAL SHALL CONSITUTE A VALID AND BINDING CONTRACT BETWEEN THE
PARTIES.” Escoe Contract, Ex. 4, [Doc. 42‐4] at p. 2 (emphasis in original document). Additionally,
Defendant does not dispute a valid contract existed. Def.’s Stmt. of Mat. Facts, [Doc. 51] at p. 3 n.1.
71
72
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has the right to complain about the contract being broken.”74 “A breach occurs if a
contracting party repudiates or renounces liability under the contract, fails to perform
the engagement as specified in the contract, or does some act that renders performance
impossible.”75 Contract construction is a generally a question of law to be determined
by the court; thus contract disputes are particularly well suited for summary
adjudication.76
Georgia courts set forth three steps courts must follow to construct contracts:
The first step is to decide whether the language of the contract is clear and
unambiguous. If so, the contract is enforced according to its plain terms,
and the contract alone is looked to for meaning. Second, if the language of
the contract is ambiguous in some respect, the rules of contract
construction must be applied by the court to resolve the ambiguity. And
finally, if ambiguity remains after applying the rules of construction, the
issue of what the ambiguous language means and what the parties
intended must be resolved by a jury.77
In other words, under Georgia law, if “the language of a contract is plain,
unambiguous, and capable of only one reasonable interpretation, no construction is
required or even permissible, and the contractual language used by the parties must
be afforded its literal meaning.”78 Georgia courts define ambiguity as “duplicity,
indistinctness, an uncertainty of meaning or expression used in a written instrument,
UWork.com, Inc. v. Paragon Techs., Inc., 321 Ga. App. 584, 590 (2013) (internal citations omitted).
Id.
76 Riverview Condo. Assʹn v. Ocwen Fed. Bank, FSB, 285 Ga. App. 7, 9 (2007).
77 Bd. of Commʹrs of Crisp Cty. v. City Commʹrs of City of Cordele, 315 Ga. App. 696, 699 (2012) (internal
citations omitted). See also Healthy‐IT, LLC v. Agrawal, 343 Ga. App. 660, 666–67 (2017).
78 Bulford v. Verizon Bus. Network Servs., Inc., 970 F. Supp. 2d 1363, 1371 (N.D. Ga. 2013) (internal citations
omitted), affʹd, 564 F. Appʹx 449 (11th Cir. 2014).
74
75
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and it also signifies being open to various interpretations.”79 A contract “or phrase is
ambiguous when its meaning is uncertain and it may be fairly understood in more
ways than one.”80
Here, the contract contains no ambiguity. The contract states, “[Defendant] will
supply labor, material and equipment to complete the following: [r]emove flooring
and piping[,] [r]emove old mixer and install new mixer[,] [i]nstall flooring and re‐
install piping[.]”81 The contract contains no provision requiring Defendant to use
Plaintiff’s chain fall, nor is there any language limiting what equipment Defendant
will supply. The contract plainly requires Defendant to supply the equipment
necessary to remove the old mixer and install the new one. Defendant breached this
provision by failing “to perform the engagement as specified in the contract. . . .”82
Defendant failed to provide equipment that allowed it to complete the installation of
the mixer.
Defendant first argues the parties entered the contract with the understanding
Defendant would use Plaintiff’s chain fall and beam. The Court, however, is precluded
from considering this evidence by the contract’s merger clause. The contract
specifically states “ALL PRIOR PROPOSALS, DISCUSSIONS AND AGREEMENTS
343 Ga. App. at 667(citations omitted).
Id.
81 Escoe Contract, Ex. 4, [Doc. 42‐4] at p. 1.
82 321 Ga. App. at 590.
79
80
19
RESPECTING THE SUBJECT MATTER HEREOF ARE CANCELED.”83 “The purpose
of merger clauses is to preclude any unilateral modifications of a written contract
through evidence of pre‐existing terms that were not incorporated into the written
contract.”84 Additionally,
[w]here parties have reduced to writing a complete and certain
agreement, the court will, in the absence of fraud, mistake, or accident,
conclusively presume that the writing contains the entire contract, and
parol evidence of prior or contemporaneous representations or statements
is inadmissible to add to, take from, or vary a written contract.85
Here, the contract’s merger clause clearly prevents the Court from considering any
evidence regarding the parties’ understanding prior to the written contract.
Defendant next contends it is “industry standard” not to list a customer’s built‐
in equipment in the contract, and therefore its use of Plaintiff’s chain fall was implied
as part of the contracts terms. Georgia statutory law on contract construction holds
that “[t]he custom of any business or trade shall be binding only when it is of such
universal practice as to justify the conclusion that it became, by implication, a part of
the contract. . . .”86 Defendant presents no evidence not listing built‐in equipment is
“industry standard.” Escoe’s testimony that when a customer has built‐in equipment,
Escoe Contract, Ex. 4, [Doc. 42‐4] at p. 2 (emphasis in original).
Rome Healthcare LLC v. Peach Healthcare Sys., Inc., 264 Ga. App. 265, 271–72 (2003) (citing Thomas v.
Garrett, 265 Ga. 395, 396 (1995)).
85 264 Ga. App. at 271–72 (citing OCGA § 13–2–2(1); Andrews v. Skinner, 158 Ga. App. 229, 231 (1981)).
86 O.C.G.A. § 13–2–2(3). This provision excepts transactions covered by Title 11. This transaction is not
covered by Title 11 as it is not a contract for goods, but for services. See O.C.G.A. § 11–2–102; Heart of
Texas Dodge, Inc. v. Star Coach, LLC, 255 Ga. App. 801, 802 (2002).
83
84
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“there is no need for us to put that system or write it down in our quote,”87 only
concerns the typical standard for Defendant. Defendant presents no evidence its
practice of not listing built‐in equipment is universal in its industry.
Finally, even if the Court found the contract ambiguous, under Georgia’s
statutory rules of contract construction, “any ambiguity in language must be
construed against the drafter of the contract,”88 and thus, the provision would be
construed against Defendant. Defendant had the opportunity to specify it would
provide all the equipment other than Plaintiff’s already installed beam and chain hoist
when it wrote the contract, but it did not.
Based on the forgoing analysis, the Court finds Defendant breached the contract
by failing to provide equipment that would allow Defendant to complete the
installation of the mixer. Plaintiff’s Motion for Summary Judgment is GRANTED as to
its claim for breach of contract.
CONCLUSION
In sum, Plaintiff’s Motion for Summary Judgment [Doc. 42] is GRANTED.
Plaintiff’s Motion for Hearing [Doc. 56] is hereby DENIED as moot. Plaintiff’s
remaining claims will proceed to trial.
Brandon Escoe’s Dep., [Doc. 45‐2] at p. 35.
Sun Am. Bank v. Fairfield Fin. Servs., Inc., 690 F. Supp. 2d 1342, 1361 (M.D. Ga. 2010) (citing O.C.G.A. §
13–2–2(5); Asian Square Partners, L.P. v. Cuong Quynh Ly, 238 Ga.App. 165, 168 (1999)).
87
88
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SO ORDERED, this 28th day of March 2018.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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