Martinez v. Rycars Construction, LLC
Filing
97
ORDER granting in part and denying in part 54 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 9/30/11. (bcw)
IN THE UNITED STATES DISTRICT COURT FOR
•'t
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MIGUEL MARTINEZ,
Plaintiff,
V.
CASE NO. CV410-049
RYCARS CONSTRUCTION, LLC,
Defendant.
ORDER
Before the Court is Defendant Rycars Construction's
("Rycars") Motion for Summary Judgment. (Doc. 54.) For the
following reasons, Defendant's motion is GRANTED IN PART and
DENIED IN PART. Plaintiff may proceed with his claim based
on the supply of chattel for dangerous use.
21.)
(Doe. 1 at 20-
However, Plaintiff's remaining claims, including his
claim for punitive damages, are DISMISSED.
BACKGROUND
Defendant is a roofing company that historically
handles approximately twenty roofing projects annually
throughout multiple states. (Doe. 85 at 2.) When
performing roofing work, Defendant commonly uses a threesided wooden box attached to a boom lift to raise and lower
construction equipment, materials, and debris between the
1
ground and the roof, (Id. at 2-3.) Generally, Defendant's
supervisory employees were aware that it is improper to use
the wooden box attachment to raise and lower individuals
because the box was not specifically designed to attach to
the boom lift, and lacked the safety features required to
raise individuals off the ground. (Id. at 3-4.)
In 2008, Defendant was contracted by the Georgia
Department of Human Resources ("GDHR") to complete a large
roofing construction project at Georgia Regional Hospital
('GRH") in Savannah, Georgia. (Id. at 5.) While working on
the project, Defendant utilized a boom lift with a wooden
box attachment. (Id.) According to Plaintiff, Defendant's
site supervisor, Mr. Lance Catchot, routinely allowed
subcontractors to raise and lower their employees using the
boom lift and wooden box. (Id. at 8.) In addition,
Plaintiff alleges both that Mr. Catchot had personally stood
in and performed work out of a wooden box attachment, and
that Mr. Catchot allowed the subcontractor's employees to do
the same.
(Id.)
While Defendant was completing the roofing contract,
the director of human resources at GRH, Mr. Lester Jump,
asked Mr. Catchot to borrow the boom lift to pick up some
fallen tree limbs and remove them to larger piles.
2
(Id. at
5-6.)
After obtaining permission from his supervisor, Mr.
Catchot loaned the boom lift to Mr. Jump. (Id. at 6.) Mr.
Catchot provided Mr. Jump no warnings with respect to the
loaned equipment.
In July of 2008, Mr. Jump again asked to borrow the
boom lift, this time with the wooden box attachment. (Id.)
According to Plaintiff, Mr. Jump informed Mr. Catchot that
he would be using the boom lift and wooden box to cut and
remove damaged limbs from trees. (Id.) Similar to before,
Mr. Catchot allowed Mr. Jump to borrow the equipment, but
did not provide any warnings or instructions concerning how
it should be used. (Id.) According to Defendant, Mr.
Catchot assumed that Mr. Jump would be operating the
equipment in the same manner as when he previously borrowed
it—using the forks of the boom lift to pull damaged limbs
from trees. (Doc. 91 at 5-6.) Mr. Catchot maintains he was
unaware that Mr. Jump intended to remove the tree limbs by
placing Plaintiff in the wooden box and raising him up to
cut the limbs with a chainsaw. (Id.)
After receiving permission, Mr. Jump retrieved the boom
lift from Defendants on-site equipment yard.
(floc. 85 at
11.) The wooden box was already on the lift's forks.
(Id.)
However, the ropes typically used to secure the box to the
3
lift were lying on the back of the box. (Id.) Mr. Jump had
previously observed Defendant's employees tie the box to the
lift. (Id. at 12.) So, he secured the box to the lift with
the ropes in the same manner. (Id.)
With the box secured to the lift, Mr. Jump directed
Plaintiff, an employee at GRH, to enter the box with a
chainsaw.
(Id.) Mr. Jump then raised the box in order to
allow Plaintiff to cut some damaged limbs.
(Id.)
After
Plaintiff finished cutting a third tree limb, the wooden box
fell from the lift.
(Id.)
As a result of the fall,
Plaintiff suffered severe injuries. (Id.)
Based on the injuries he received from the fall,
Plaintiff filed a nine-count complaint in the State Court of
Chatham County, Georgia on February 8, 2010.
A.)
(Doc. 1, Ex.
Defendant timely removed the case to this Court on
February 26, 2010. (Doc. 1.) Because six of Plaintiff's
claims have either been abandoned' or can be grouped into the
same cause of action, 2 there are only three principal claims
left for the Court's consideration.
1 In his response to Defendant's Motion for Summary Judgment,
Plaintiff withdrew his claims for strict liability, breach
of warranty, and breach of professional duty.
(Doc. 85 at
39-40, 73.)
2 Because of Plaintiff's concession that the bailment was
gratuitous
(Doc.
Plaintiff's claims
85 at 17),
for
negligence, duty to warn, and bailment are only viable to
4
First, Plaintiff alleges that Defendant, a gratuitous
bailor, 3 was negligent for failing to warn Plaintiff's
employer of known defects in the equipment that made it
perilous for the use intended by Plaintiff's employer.
(Doc. 1, Ex. A ¶J 20-27.) Second, Plaintiff claims to be an
intended third-party beneficiary of Defendant's contract
with GDHR. (Id.) Plaintiff argues that Defendant breached
its duty under this contract to prevent accidents on the job
site and to ensure the safety of the public, tenants, and
occupants of GRH. (Id. ¶ 39.) Third, Plaintiff maintains
that Defendant, as a supplier of chattels for dangerous use,
breached its duty to inform Plaintiff's employer that the
equipment was in a dangerous condition. (Id. ¶J 45-46.)
On October 19, 2010, Defendant filed a Motion for
Summary Judgment. (Doc. 54.) In its motion, Defendant
argues that, as a gratuitous bailor, its only duty was to
warn of known defects in the equipment. (Id. at 15-22.)
Defendant contends that it cannot be liable for Plaintiff's
injuries because it had no actual knowledge of any defect in
the extent Defendant would be liable under the law governing
gratuitous bailments. See infra Analysis Part II.
Therefore, the Court need not individually address these
claims. Similarly, Plaintiff's duty to warn claim is also
considered in concert with his claim for supply of chattels
for dangerous use. See infra Analysis Part IV.
As noted earlier, Plaintiff concedes that the bailment at
issue here was purely gratuitous. (Doc. 85 at 17.)
5
the loaned equipment.
(Doc. 54 at 23.)
Next, Defendant
maintains that Plaintiff was not a third party beneficiary
to its roofing contract with GDHR. (Id. at 32-36.)
According to Defendant, the contract does not confer a
direct, clear, and sufficiently specific benefit upon
Plaintiff to give him standing to sue in the event that
Defendant breaches the contract. (Id. at 35.) Also,
Defendant reasons that it is not liable because Plaintiff's
injury occurred outside of the scope of Defendant's work
under the contract. (Id. at 35-36.) Finally, Defendant
argues that it is not liable for the supply of chattel for
dangerous use because it was unaware that Mr. Jump intended
to use the equipment in such a dangerous manner.
(Id. at
37-38.)
Defendant also raised two affirmative defenses in its
motion. First, Defendant claims that Plaintiff assumed the
risk of injury. (Id. at 40-47.) Second, Defendant reasons
that Plaintiff failed to exercise due care for his own
safety.
(Id. at 47-50.)
In addition, Defendant requested
summary judgment with respect to Plaintiff's claim for
punitive damages.
(Id. at 39.)
On November 12, 2010, Plaintiff filed his response to
Defendant's Motion for Summary Judgment, elaborating upon
6
its arguments in the original complaint and responding to
the affirmative defenses. (Doc. 85) Regarding Defendant's
position that Plaintiff assumed the risk of injury,
Plaintiff contends that he had no awareness of the specific
risk that caused his injury, that his prior training and
experiences did not prepare him to fully appreciate the
inherent danger involved with being raised by a boom lift
while in an attached wooden box, and that he did not
voluntarily encounter the dangerous situation because he
entered the wooden box at the request of his employer.
(Doc. 85 at 50-58.) As for Defendant's claim that Plaintiff
failed to exercise due care for his own safety, Plaintiff
responds simply that such determination is for a jury and is
not appropriately made on summary judgment.
(Doc. 85 at
52.)
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
According to Fed. R. Civ. P. 56 (a) , "[al party may move
for summary judgment, identifying each claim or defense—or
the part of each claim of defense—on which summary judgment
is sought." Such a motion must be granted "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
7
law." Id. The "purpose of summary judgment is to 'pierce
the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.' " Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(quoting Fed. R. Civ. P. 56 advisory committee notes)
Summary judgment is appropriate when the nonmovant
"fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) . The
substantive law governing the action determines whether an
element is essential.
DeLong Equip. Co. v. Wash. Mills
Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).
As the Supreme Court explained:
[A] party seeking summary judgment 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.
Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts material to the
8
nonmovant's case.
Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th dr. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 587-88.
However, the nonmoving party "must do more than simply show
that there is some metaphysical doubt as to the material
facts." Id. at 586. A mere "scintilla" of evidence, or
simply conclusory allegations, will not suffice. See, e.g.,
Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir.
1998) . Nevertheless, where a reasonable fact finder may
"draw more than one inference from the facts, and that
inference creates a genuine issue of material fact, then the
Court should refuse to grant summary judgment." Barfield v.
Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989)
II. GRATUITOUS BAILMENT
In its Motion for Summary Judgment, Defendant argues
that a gratuitous bailor's only duty is to warn the bailee
of defects of which the bailor is aware. (Doc. 54 at 18.)
Defendant contends that its representative, Mr. Catchot, had
no duty to warn Mr. Jump that the equipment was defective
for raising personnel because Mr. Catchot did not know Mr.
Jump intended to use the equipment in that manner. (Doc. 54
9
at 18.) In response, Plaintiff argues that Mr. Catchot knew
how Mr. Jump intended to use the equipment, that such use
would be dangerous, and that Mr. Jump was not aware of that
danger. (Doc. 85 at 39.) This knowledge, Plaintiff
reasons, obliged Defendant to warn of defects in the bailed
equipment that made it unsuitable for Mr. Jump's intended
use.
(Doc. 85 at 35.)
In Georgia, a gratuitous bailor is charged with a
lesser duty to the bailee than a bailor for hire. While a
bailor for hire must 'warrant . . . that the thing bailed is
free from any secret fault rendering it unfit for the
purposes for which it is hired," O.C.G.A. § 44-12-63, a
gratuitous bailor must only warn M 'of defects of which he
is aware and which might make the subject of the bailment
perilous to the bailee or to his servants' " Howell v.
Amersori, 116 Ga. App. 211, 211, 156 S.E.2d 370, 371 (1967)
(quoting 8 Am. Jur. 2d Bailments § 1043 (2011)) . The
rationale underlying this duty is that 11 'when a person
lends, he ought to confer a benefit and not do mischief.'
Id.
Georgia case law makes plain that a gratuitous bailor
is only liable where he has actual knowledge of defects that
make the bailed property hazardous in light of the purpose
10
Prince v. Atlanta Coca-Cola
for which it was bailed.
Bottling Co., 210 Ga. App. 108, 111, 435 S.E.2d 482, 485
(1993) (" [A] bailor intrusting a dangerous article to his
bailee, knowing that it will be used in such a manner as to
endanger persons and property, is liable for any injury
which . . . he could have foreseen.' " (quoting 8 C.J.S.
Bailments 97 (2011))); Howell, hG Ga. App. at 212, 156
S.E.2d at 371 ('[A mere lender] cannot be liable for not
communicating anything which he did not in fact know,
whether he ought to have known it or not."). Implicit in
this rule is the principle that, in order to actually know
whether a defect in bailed property renders it hazardous for
the purpose of the bailment, a bailor must actually know of
the way in which the bailee intends to use it.
Plaintiff's negligent bailment claim, therefore, turns
on whether Defendant's representative, Mr. Catchot, both
actually knew that Mr. Jump intended to use the equipment
for raising personnel, and actually knew that defects in the
equipment made such use dangerous. Both parties agree that
Mr. Jump indicated to Mr. Catchot that he was borrowing the
lift and box to cut tree limbs.
6..)
(Doc. 54 at 8; Doc. 85 at
From the record, however, it appears that Mr. Jump
11
never specifically mentioned an intention to put Plaintiff
in the box and to raise him off the ground.
In attempting to establish that Defendant knew how the
bailed equipment was to be used, Plaintiff does not contend
that Defendant was actually aware of Mr. Jump's intention to
use the equipment to lift personnel. Rather, Plaintiff
maintains that Mr. Jump's decision to put him in the box to
cut tree limbs was foreseeable and expected.
(Doc. 85 at
46.) Plaintiff relies upon Mr. Catchot's statement that he
did not know how the lift could have been used to cut limbs
without a person in the box, as the forks on the lift do not
cut or grab limbs, to support Plaintiff's proposition that
Mr. Catchot should have known Mr. Jump intended to use the
lift and box to raise a person into the air to cut tree
limbs. (Doc. 85 at 33.) According to Plaintiff, this
constructive knowledge of how Mr. Jump intended to use the
bailed equipment was sufficient to impart upon Defendant a
duty to warn of the defects making such use dangerous.
To establish Defendant knew of defects in the equipment
that made it inherently dangerous for the use Mr. Jump
intended, Plaintiff proceeds upon something akin to a
negligence per se theory. (Doc. 85 at 21-24.) In this
regard, Plaintiff argues that Defendant knew raising people
12
via the forks on the lift without a specially manufactured
personnel carrier violated regulations established by the
Occupational Safety and Health Administration ("OSHA").
(Id. at 23.) Plaintiff reasons, therefore, that it can be
assumed Defendant knew the use of the lift and box without
such a personnel carrier was dangerous because Defendant
knew such use would violate OSHA regulations.
(Doc. 85 at
23.) As a result, Plaintiff concludes Defendant was
negligent for failing to warn Mr. Jump of the defects in the
equipment that both made it dangerous for its intended use
and, ultimately, resulted in Plaintiff's injuries.
After reviewing the applicable case law in Georgia, the
Court concludes that Plaintiff has failed to establish both
essential components of this claim. First, Plaintiff has
presented no evidence establishing that Defendant actually
knew how Mr. Jump intended to use the bailed equipment.
Plaintiff contends only that Mr. Catchot should have known
how Mr. Jump intended to use the lift and box. (Doc. 85 at
46.)
This,
however,
is
insufficient
to establish
Defendant's actual knowledge of the purpose of the bailment.
which Georgia law requires.
See Prince, 210 Ga. App. at
110-11, 435 S.E.2d at 485; Butler v. Shirah, 154 Ga. App.
13
111, 112, 267 S.E.2d 647, 649 (1980); Howell, 116 Ga. App.
at 211, 156 S.E.2d at 371.
Next, Plaintiff has presented no evidence that
Defendant was actually aware of defects in the equipment
that made it dangerous for raising personnel, also essential
to establishing that Defendant had a duty to warn against
such use. On this issue, the Court finds the Georgia Court
of Appeal's decision in Howell instructive.
In that case,
the defendant loaned an electric drill to the plaintiff,
knowing of its propensity to shock its user. Id. at 211,
156 S.E.2d at 371. Before loaning the drill, the defendant
proceeded to test it prior to handing it over to the
plaintiff, assuring him the drill was safe to use because it
had not shocked him during the test. Id. In granting the
defendant summary judgment, the Georgia Court of Appeals
observed that a bailor "cannot be made liable for not
communicating anything which he did not in fact know." Id.
(emphasis added). Because the defendant in Howell tested
the drill prior to the bailment, the results of which led
him to believe that the drill was safe, the court found that
the defendant was not actually aware the drill had a defect
that could cause a fatal shock. Id. The court concluded,
14
therefore, that the defendant could not be held liable
because he possessed no actual knowledge of the defect. Id.
Based on the court's reasoning in Howell, even if
Defendant in this case knew that Mr. Jump's intended use of
the bailed equipment was to place Plaintiff in the threesided box and to lift him into the air, Defendant had no
reason to know the equipment had defects that made such use
dangerous. Indeed, Plaintiff argues that GRH employees
observed Defendant use the lift and box in this manner on
previous occasions without incident (Doc. 85 at 8), which is
analogous to the defendant in Howell testing the drill for
safety before loaning it to the plaintiff. In other words,
Plaintiff's own allegations confirm that even if Defendant
knew how Mr. Jump intended to use the bailed equipment,
Defendant still lacked actual knowledge of any defect in the
equipment that would render it unreasonably dangerous for
that use because Defendant had previously used it in the
same manner without any incident. As discussed above,
Defendant cannot be held liable absent any actual knowledge
of the defect.
Furthermore, Plaintiff's argument that Defendant had
knowledge that the lift and box were defective for the
purpose of lifting personnel simply because Mr. Catchot was,
15
or should have been, aware that such use violated OSHA
regulations is untenable. Here, Plaintiff confuses actual
knowledge, defined as t[d]irect and clear knowledge,"
Black's Law Dictionary 888 (8th ed. 2004), with constructive
knowledge, defined as '[k]knowledge that . . . is attributed
by law." Id. Defendant's knowledge that such use would
violate OSHA regulations imparts, at best, constructive
knowledge that the equipment was defective for that use, not
actual knowledge. For actual knowledge in the context of a
gratuitous bailment, Defendant must know of a specific
defect in the bailed item that renders it dangerous for its
intended use.
Plaintiff's attempt to establish that
Defendant possessed that level of knowledge by reference to
OSHA regulations is inadequate. Because Plaintiff has
failed to present any evidence that Defendant knew of either
the defect in the lift and box, or Mr. Jump's intended use
of the equipment, Defendant's Motion for Summary Judgment is
GRANTED with respect to Plaintiff's claim for negligent
bailment .
' As previously discussed, supra note 2, Plaintiff's claims
for negligence, duty to warn, and bailment are all governed
by the law concerning gratuitous bailments.
Therefore,
Defendant is also entitled to summary judgment on these
claims.
16
III. PLAINTIFF'S STATUS AS THIRD PARTY BENEFICIARY TO THE
ROOFING CONTRACT
As an alternative theory of liability. Plaintiff
contends that Defendant breached its general obligations
under its roofing contract with GDHR, of which Plaintiff
claims to be a third-party beneficiary. 5 (Doc. 85 at 59.)
Plaintiff argues that the contract imposed upon Defendant a
duty to protect the general public from any hazards arising
in the course of Defendant's work at GRH. Plaintiff reasons
that his status as a member of the general public entitles
him to recovery as a beneficiary of the contract.
According to Plaintiff, Defendant's loan of the
equipment fell within the scope of its roofing work for GDHR
because it was made "as a result of Rycars [sic] performance
of the contract."
(Doc. 85 at 71-72.)
By this, Plaintiff
Two contract provisions in particular are relevant to
Plaintiff's claim that Defendant's contractual obligations
inured to his benefit. Section D-12 (b) of the Project
Manual, which was incorporated into the Contract, states
that the "Contractor alone shall be responsible for the
safety, efficiency, and adequacy of his plant, appliances,
and methods, and for any damage that may result from their
improper construction, maintenance, or operations." (Doc 85
at 60.) Section 3.02A of the contract, entitled "Protection
of Personnel," requires the contractor to take all
"necessary precautions to prevent injury to the public [and]
occupants," defining the latter as "all persons not employed
by the Contractor or sub-contractor." (Id. at 62.)
17
implies that the loan was not entirely gratuitous, 6 but was
motivated by Defendant's attempt to secure Mr. Jump's
approval of requests for payment, change orders, and
additional time for completion of the work.
(Doc. 85 at
72.) To establish that Defendant's alleged negligent
bailment violated its contractual duties, Plaintiff thus
relies upon the loose proposition that Defendant loaned the
lift to Mr. Jump in furtherance of its performance pursuant
to the contract.
A contract should be construed by examining the
agreement in its entirety, not merely by examining isolated
clauses and provisions. Mountain Aire Realty, Inc. v.
Birdie White Enters., Inc., 265 Ga. App. 366, 368, 593
S.E.2d 900, 902 (2004) . Where the language of a contract is
clear and unambiguous and capable of only one reasonable
interpretation, construction of a contract is a matter of
law reserved for the trial court at the summary judgment
stage. Amstadter v. Liberty Healthcare Corp., 233 Ga. App.
240, 242, 503 S.E.2d 877, 880 (1998) . After careful
consideration of the whole contract between Defendant and
GDHR, the Court concludes that its terms can only be
6
The Court finds this argument as odd, considering that
Plaintiff concedes the bailment was gratuitous earlier in
(Doc. 85 at 17.)
his brief.
18
reasonably construed as creating liability for injuries or
property damage done in the course of Defendant's efforts in
completing the roofing work. The contract neither obliges
Defendant to lend equipment to GRH nor holds Defendant
responsible for ensuring the safety of its equipment for
others' use.
For example, Plaintiff cites Section 3.02A, "Protection
of Personnel," as the source of Defendant's general
obligation to prevent injuries to the "public" and
"occupants" of Georgia Regional. This provision appears in
a part of the contract entitled "Execution," suggesting that
its guidelines pertain specifically to Defendant's
performance of the roofing work at Georgia Regional. This
"Protection of Personnel" provision appears in concert with
numerous other specifications that set guidelines for
Defendant's "execution of the work."
(Doc. 23, Attach. 9 at
6.) The application of the Project Manual provisions is
likewise limited to Defendant's work under the contract.
Given Plaintiff's concession that the bailment of the lift
and box was gratuitous (Doc. 85 at 71-72) and not done in
furtherance of or in consideration for Defendant's
contractual performance, the Court finds his argument that
the loan was somehow encompassed in Defendant's obligations
19
under the contract to be without merit. Because Plaintiff
has presented no evidence that Defendant, in bailing the
equipment, breached its contractual duties, Plaintiff is not
entitled to recover under the contract.
Even if the Court accepts the proposition that
Defendant breached its contractual duties, the Court finds
that the designation of Plaintiff as a third-party
beneficiary to this contract would make the scope of covered
persons under the cited provisions unreasonably broad.
Georgia law requires that 's in order for a party to have
standing as a third-party beneficiary under a contract, it
must clearly appear that one party to the contract promised
another party to the contract to render some performance to
the nonparty to the contract," Vaughn, Coltrane, & Assocs.
v. Van Horn Constr., Inc., 254 Ga. App. 693, 694, 563 S.E.2d
548, 549 (2002) . Non-parties to a contract cannot claim
third-party beneficiary status if they are members of an
unreasonably broad group of beneficiaries. Miree v. United
States, 242 Ga. 126, 135-36, 249 S.E.2d. 573, 579-80 (1978)
Here, the roofing contract does not specifically
designate either Plaintiff, or a limited group to which
Plaintiff is a member, as an intended beneficiary of the
contract.
Plaintiff argues that the contract provides for
20
the protection of occupants, a specific group of persons
listed in the contract to which he belongs. (Doc. 85 at
70.) However, the contract always refers to both the public
and occupants when discussing the protection of personnel,
using both terms in an attempt to provide protection for as
many people as possible. Indeed, a review of the contract
reveals no intention to impart upon occupants any benefits
above that those that it gives to the general public. Such
a wide net is insufficiently specific to grant Plaintiff
status as a third-party beneficiary to the contract. See
Van Home, 254 Ga. App. at 694, 563 S.E.2d at 549; Miree,
242 Ga. at 135-36, 249 S.E.2d, at 579-80.
Plaintiff Cites Plantation Pipe Line Co. V. 3-D
Excavators, Inc., 160 Ga. App. 756, 287 S.E.2d 102 (1981),
for the proposition that a member of the general public can
recover as a third-party beneficiary to a contract in which
one party agrees to compensate non-parties for injuries
arising from its performance of the contract.
(Doc. 85 at
68.) In 3-D Excavators, the provisions giving rise to the
contractor's liability stated that the contractor would
repair or make good "any damage to existing structures or
utilities at no expense to the Owner," DeKalb County,
Georgia.
Id. at 757, 287 S.E.2d at 103.
21
The defendant
further assumed responsibility for all claims arising "in
connection with the performance of [the] contract" and for
"conditions created . . . or arising out of . . . work
performed under the contract." Id. at 757-58, 287 S.:E.2d at
104. The defendant damaged the plaintiff's pipelines in the
course of performing the excavation work that was the
subject of its contract with DeKaib County. The court
concluded that the plaintiff was an intended beneficiary of
the contract because of the contract's explicit provision
that the defendant would pay damages arising from its work
under the contract and because the plaintiff was not part of
an unreasonably broad group of beneficiaries.
However, the court's reasoning in 3-D Excavators is
inapplicable to this case. First, the damage done to the
plaintiff's pipes in 3-D Excavators was a direct result of
the defendant's work under the contract—excavating. In
contrast, for the reasons stated above, the unfortunate
injury sustained by Plaintiff in this case cannot be
attributed to Defendant's work under its contract—roofing.
Second, the plaintiff in 3-D Excavators could be identified
as a beneficiary to the contract because of his obvious
relationship to the subject matter of the hold harmless
provision—existing structures and utilities. As an owner of
22
a. utility in proximity to the construction work, the court
found that the plaintiff could be 'reasonably afforded the
contractual protection incorporated in the contract in
question." Id. at 758, 287 S.E.2d at 105. The court
concluded that the contractual language did not place
plaintiff in an unreasonably broad group of beneficiaries
who would, as a result, have no standing under such
contracts. Id. at 758, 287 S.E.2d at 104-05. In contrast,
Plaintiff's membership in the very broad category of 'the
public and occupants" is insufficient to give him standing
to sue under the roofing contract. Furthermore, nothing in
the contract creates a special duty in Defendant to
compensate for injuries to GRH's employees that occurred as
a result of work performed by others outside the scope of
the contract.
Plaintiff also claims status as a third-party
beneficiary to the roofing contract by pointing to Section
324A of the Restatement (Second) of Torts, 7 (Doc. 85 at 66.)
Section 324A of the Restatement (Second) of Torts provides:
One
who
undertakes,
gratuitously
or
for
consideration, to render services to another which
he should recognize as necessary for the
protection of a third person or his things, is
subject to liability to the third person for
physical harm resulting from his failure to
23
The Georgia Supreme Court adopted this Restatement rule in
Huggins v. Aetna Cas. & Sur. Co.., 245 Ga. 248, 264 S.E.2d
191 (1980), as a means by which a party may establish
liability for the negligent performance of an undertaking.
Relying on this Restatement provision, Plaintiff argues that
Defendant is liable for his injuries because Defendant, as
part of the contract, undertook to ensure the safety of
GRH's premises during the performance of the contract.
(Doc. 85 at 66.)
To establish Defendant's liability to Plaintiff as a
third-party contract beneficiary under Restatement Section
324A, Plaintiff would have to first prove that Defendant's
agreement to maintain a safe workplace was a contractual
undertaking and that Defendant had reason to recognize the
services it contracted to perform were necessary for
Plaintiff's protection. Plaintiff would then have to show
any one of the following: that the loan of the lift and box
constituted a failure to exercise reasonable care that
exercise
reasonable
care
to
protect
his
undertaking, if
(a) his failure to exercise reasonable care
increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by
the other to the third person, or
(C) the harm is suffered because of reliance of
the other or the third person upon the
undertaking.
24
increased the risk of harm to Plaintiff; that Defendant
undertook to perform a duty owed by Plaintiff's employer to
Plaintiff; or that Plaintiff's injury resulted from either
Mr. Jump's or Plaintiff's reliance upon this undertaking.
Viewing the evidence in the light most favorable to
Plaintiff, the Court finds that he has not presented
sufficient evidence to establish any of the above.
Therefore, he cannot recover as a third-party beneficiary to
the contract between Defendant and GDFIR under Restatement
Section 324A.
First, Plaintiff has not established that Defendant
failed to exercise reasonable care under Restatement Section
324A(a) . To establish liability, Plaintiff would have to
establish that Defendant failed to use reasonable care,
which in this case would be predicated on the bailment of
the equipment. As discussed above, however, Defendant bears
no liability based on its gratuitous bailment of the
equipment. See supra Part II.
Second, Plaintiff's theory of liability under
Restatement Section 324(b) does not survive summary judgment
because Plaintiff has not established that Defendant
completely undertook to perform duties—maintaining safe
equipment and preventing injuries—originally owed by
25
Plaintiff's employer. Under Georgia law, liability under
Section 324A(b) attaches "only when the alleged tortfeasor's
performance is to be substituted completely for that of the
party on whose behalf the undertaking is carried out."
Huggins v. Standard Fire Ins. Co., 166 Ga. App. 441, 442,
304 S.E.2d 397. 398
(1983)
(interpreting the official
comment to subparagraph (b) of the Restatement) . Such a
showing here would amount to proving that, because of
Defendant's contractual undertaking to ensure Plaintiff's
safety throughout its work on the roofing contract,
Plaintiff and his employer completely gave up responsibility
for their own protection, a result which defies logic and is
contrary to the evidence in the record.
Third, Plaintiff has failed to establish liability
under Section 324A(c) because he has shown neither that
Defendant realized his undertaking to render services under
the roofing contract was necessary for Plaintiff's
protection, see Brown v. All-Tech Inv. Grp., Inc., 265 Ga.
App. 889, 898-99, 595 S.E.2d 517, 524-25 (2003), nor that
Plaintiff or his employer relied upon Defendant's competent
performance of the undertaking to provide for his safety,
see Smith v. Universal Underwriters Ins. Co., 732 F.2d 129,
131 (11th Cir. 1984) ("Georgia law . . . require [s] that an
26
employer's [or employee's] reliance be shown by evidence of
change in position. We [are] unable to find employer
reliance where there was no indication that the employer had
neglected or reduced its own safety program because of the
carrier's [inspections]. "). Plaintiff has produced no
evidence to indicate that he failed to take steps for his
own protection in reliance upon Defendant's contractual
undertaking to ensure safe conditions at the GRH jobsite.
Furthermore, Plaintiff has not established that his employer
failed to adhere to its own safety procedures because of
Defendant's alleged contractual undertaking.
For the reasons discussed above, the Court concludes
that Plaintiff has not offered sufficient evidence to
establish either that he is an intended third-party
beneficiary of the roofing contract between Defendant and
GDHR, or that Defendant's actions constituted a breach of
its duties under that contract. In addition, Plaintiff has
failed to provide evidence that would allow a jury to
conclude that he was a third-party beneficiary of the
contract based on Restatement Section 324A. Therefore, the
Court finds that Defendant is entitled to summary judgment
on this claim. As a result, Defendant's Motion for Summary
Judgment is GRANTED with respect to this claim.
27
IV. SUPPLY OF CHATTEL FOR DANGEROUS USE
Lastly, Plaintiff alleges that Defendant, as a supplier
of chattel for dangerous use, had a duty to warn Plaintiff
of the dangers associated with the use of the lift and the
box. (Doc. 1, Attach. A 11 45-46.) Plaintiff points to
Georgia courts' use of Restatement (Second) of Torts Section
388, "Chattel Known to be Dangerous for Intended Use," to
impose liability upon a supplier of chattel in certain
circumstances -8
The Georgia Court of Appeals first relied upon Section
388 in Moody v. Martin Motor Co., 76 Ga. App. 456, 46 S.E.2d
197 (1948) . Despite the fact that, since Moody, Georgia
courts have mostly applied this Restatement rule to
8
Restatement (Second) of Torts § 388 provides as follows:
One who supplies directly or through a third
person a chattel for another to use is subject to
liability to those whom the supplier should expect
to use the chattel with the consent of the other
or to be endangered by its probable use, for
physical harm caused by the use of the chattel in
the manner for which and by a person for whose use
it is supplied, if the supplier
(a) knows or has reason to know that the chattel
is or is likely to be dangerous for the use for
which it is supplied, and
(b) has no reason to believe that those for whose
use the chattel is supplied will realize its
dangerous condition, and
(c) fails to exercise reasonable care to inform
them of its dangerous condition or of the facts
which make it likely to be dangerous.
28
manufacturers in products liability cases, the Moody court
cited Restatement comment c, which states that the rule also
"applies to all kinds of bailors." Id. at 460, 46 S.E.2d at
199. Indeed, Section 388 has been applied to determine
liability for suppliers other than the original manufacturer
of a dangerous product. See, e.g., Dingier v. Moran, 244
Ga. App. 59, 479 S.E.2d 469 (1996); Murphy v. Blue Bird Body
Co., 207 Ga. App. 853, 429 S.E.2d 530 (1993); J.C. Lewis
Motor Co. v. Williams, 85 Ga. App. 538, 69 S.E.2d 816
(1952) .
The facts of Murphy are very similar to the facts at
hand, but with some critical differences. In Murphy, the
plaintiff's employer, Applied Coating Technologies ("ACT ")I
was an independent contractor hired to install a paint
finishing system at a manufacturing plant owned by the
defendant, Blue Bird Body Company. 207 Ga. App. at 853, 429
S.E.2d at 531. On a day when the plant was not in
operation, ACT's president entered the plant with the
plaintiff, who had been hired to repair a suction fan
installed by ACT as part of the paint finishing system. Id.
at 854, 429 S.E.2d at 531. When the plaintiff realized he
needed to examine the outside of the fan, which was not
accessible by stairs, the plaintiff's employer retrieved a
29
forklift and a parts basket, both owned by the defendant,
for the plaintiff to use. Id. at 854, 429 S.E.2d at 532.
The plaintiff entered the parts basket with the tools he
needed, and his employer raised him to the outside area of
the fan. Id. However, the basket was not secured to the
forklift and it fell while the plaintiff was working on the
fan, injuring the plaintiff. Id.
The Court of Appeals affirmed summary judgment for the
defendant, dismissing the plaintiff's claim that the
defendant breached a duty to provide safe equipment under
Restatement (Second) of Torts § 388. The court found that
the plaintiff's reliance on Section 388 was misplaced
because the evidence showed that the defendant had no reason
to know ACT would use one of its forklifts to lift the
plaintiff. Id. at 858, 429 S.E.2d at 534. In addition, the
court noted that the defendant never authorized ACT to use
its forklift for that purpose. Id.
From this precedent, the Court can only conclude that
if the plaintiff in Murphy had been able to show that the
defendant, at the time it loaned the equipment, had reason
to know the plaintiff's employer might use the lift to raise
plaintiff from the floor to the overhead fan, the Court of
Appeals would have denied summary judgment. As a basis for
30
its finding that the defendant in Murphy had no reason to
know of ACT's intended use of its equipment, the Court of
Appeals pointed out that the defendant and its employees had
never seen ACT'S crew use the forklift and basket to lift
personnel. See id. at 859, 429 S.E.2d at 534-35. Thus,
they had no reason to anticipate ACT's use of their
equipment in this way.
The Court cannot say that similar facts are present in
this case that would entitle Defendant to summary judgment.
While Defendant, like the defendant in Murphy, had never
seen Mr. Jump or other GRH employees use its lift and box as
personnel carriers, Plaintiff has alleged that Defendant's
site supervisor, Mr. Catchot, had previously allowed the
equipment to be used for this purpose by subcontractors at
the GRH jobsite. (Doc. 85 at 34.) A reasonable jury could
find, contrary to Defendant's assertion in its Motion for
Summary Judgment, that such use by Defendant constituted
authorization for subsequent bailees of the equipment to put
it to similar use. At the very least, a reasonable jury
could find that Defendant's own history of use of the
equipment for lifting personnel was enough to give Defendant
"reason to anticipate" that Plaintiff's employer might put
the equipment to a similar use.
31
Murphy, 207 Ga. App. at
858, 429 S.E.2d at 536.
Such a showing would bring the
facts of this case within the ambit of Section 3889
To establish Defendant's liability under this rule,
however, Plaintiff must also satisfy the requirements of
subsection (b) of Section 388. Under this subsection, the
supplier of chattel for dangerous use is only liable if he
"has no reason to believe that those for whose use the
chattel is supplied will realize its dangerous condition."
Restatement (Second) of Torts § 388(b) . In Dingier, the
Georgia Court of Appeals found that the existence of an open
and obvious danger in the loaned equipment defeated the
plaintiff's claim that he had no reason to realize the
dangerous condition of a table saw he borrowed from the
The Court notes the fine distinction between the standard
of liability for a gratuitous bailor and that of a supplier
of chattel for dangerous use. As explained above, Georgia
law requires that a gratuitous bailor have actual knowledge
of a defect and of the use the bailee intends in order to be
liable for a failure to warn. Supra Analysis Section II.
However, a supplier of chattel for dangerous use is subject
to liability for harm caused by the use of the chattel if
the supplier should realize, from facts known to him, that
the chattel is dangerous for the uses that he has reason to
know are intended by the party to whom the chattel is being
supplied. See Murphy, 207 Ga. App. at 857-58, 429 S.E.2d at
534; Restatement (Second) of Torts § 388. Thus,
constructive knowledge of danger is sufficient for liability
to attach to the supplier of chattel under Restatement
§ 388, whereas actual knowledge of a defect is required to
establish a gratuitous bailor's liability.
32
defendant. 244 Ga. App. at 60, 479 S.E.2d at 470. Whether
the use of a box tied to a forklift to elevate personnel off
the ground to operate a chainsaw constitutes an open and
obvious danger, such that Plaintiff's cause of action under
Section 388 is defeated, is an issue of fact that falls
within the province of the jury. Because Plaintiff has
presented facts sufficient to allow a jury to conclude that
Defendant is liable under Section 388, Defendant's Motion
for Summary Judgment as to this claim is DENIED.
V.
PLAINTIFF'S ASSUMPTION OF THE RISK
In its Motion for Summary Judgment, Defendant argues
that Plaintiff assumed the risk associated with being raised
by a boom lift with a wooden box attachment. (Doc. 54 at
40-47.) All reasonable inferences and disputed evidence on
this issue must be viewed in favor of Plaintiff, who is the
non-moving party. See Snow v. Bellamy Mfg. & Repair, 1995
WL 867859, at *8 (N.D. Ga. Sept. 26, 1995) (unpublished).
Furthermore
[a]s a general proposition, issues of negligence,
assumption of risk, contributory negligence and
lack of ordinary care for one's own safety in
avoiding the consequences of another's negligence
and comparative negligence are not susceptible of
summary adjudication either for or against the
claimant but must be resolved by a jury as a
trier of fact.
33
Kitchens v. Winter Co. Builders, Inc., 161 Ga. App.
701, 701, 289 S.E.2d 807, 808 (1982) . To establish
the defense of assumption of the risk, Georgia courts
require a defendant to show
(1) that the plaintiff had some actual knowledge
of the danger; (2) that he understood and
appreciated the risk there from, [sic] and (3)
that he voluntarily exposed himself to such risk.
Stated another way: The doctrine of the assumption
of the risk of danger applies only where the
plaintiff, with a full appreciation of the danger
involved and without restriction from his freedom
of choice either by the circumstances or by
coercion, deliberately chooses an obviously
perilous course of conduct so that it can be said
as a matter of law he has assumed all risk of
injury.
Gen. Tel. Co. of the S.E. v. Hiers, 179 Ga. App. 105, 106-7,
345 S.E.2d 652, 654 (1986) (internal citations and
quotations omitted).
To establish that Plaintiff understood and appreciated
the inherent risks involved with being lifted in the box on
the forklift, Defendant points to Plaintiff's training and
experience in tree cutting, job site safety, construction,
and fall protection. (Doc. 54 at 42.) The Court has
carefully considered the deposition testimony of Plaintiff's
former employer, Mike Xenos, who personally trained
Plaintiff in the aforementioned areas.
(Doc. 54 at 43,)
The Court has also considered Plaintiff's own deposition
34
testimony concerning his past job experiences and his
account of the circumstances of the incident leading to his
injury.
(Doc. 49, Attach. 2 at 88-97.)
Defendant has produced ample evidence supporting its
assertions that Plaintiff appreciated the risks associated
with lifting personnel in the air above six feet without a
harness and knew that the forklift with the attached
platform was not intended or designed to raise personnel.
(Doc. 54 at 42-43.) However, Defendant has not shown that
Plaintiff was aware of the specific danger of the box coming
unattached from the lift and falling from it. Plaintiff
indicated in his deposition testimony that he believed there
was no danger associated with getting onto a fixed platform
and being hoisted up into the air. (Doc. 49, Attach. 2 at
97.) He also testified that he had seen Defendant use the
forklift to hoist personnel up on the roof of one of the GRH
buildings (id. at 55-56), and that this was done on prior
occasions without incident (Id. at 64-65) . Plaintiff,
therefore, had never witnessed any sort of accident
involving the lift or the box, even when used in the same
manner that resulted in his injuries. Viewing the facts,
then, in the light most favorable to Plaintiff, the Court is
unable to conclude that Plaintiff understood and appreciated
35
the risks associated with being raised by Defendant's
equipment.
Furthermore, Defendant has not established Plaintiff's
actual knowledge of the danger.
"Knowledge of the risk is the watchword of
assumption of risk," and means both actual and
subjective knowledge on the plaintiff's part. 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.
Vaughn v. Pleasent, 266 Ga. 862, 864, 471 S.E.2d 866, 868
(1996) (quuoting Beringuase V. Fogleman Trucklines, Inc., 200
Ga, App. 822, 824, 409 S.E.2d 524, 526 (1991)). Neither
party alleges that Plaintiff was specifically apprised of
the danger of the box falling off of the lift. Nor does the
record show that Plaintiff actually knew the box could come
loose and fall in the way it did.
Indeed, as already
stated, Plaintiff considered the platform attachment to the
lift to be safe for lifting him to cut tree limbs. (Doc.
49, Attach. 2 at 93.) Thus, the evidence does not support
Defendant's contention that Plaintiff actually knew of the
specific danger that caused his injuries.
Additionally, Defendant has not discharged its burden
of production on the issue of whether Plaintiff voluntarily
exposed himself to the risk of injury. In fact, Defendant's
36
Motion for Summary Judgment does not address the
voluntariness requirement of assumption of the risk at all.
(Doc. 54 at 40-47.) Plaintiff's response, on the other
hand, cites case law to support the point that an employee,
performing duties of his job, is not necessarily acting
voluntarily. See Kitchens, 161 Ga. App. at 703, 289 S.E.2d
at 809 ("Any construction worker as a servant and employee
has a certain amount of his freedom of choice restricted by
the circumstances under which he works and the coercion of
seeking to remain employed."). It is undisputed that
Plaintiff entered the three-sided box and was raised on the
forklift under the direction of his supervisor, Mr. Jump.
(Doc. 85 at 12; Doc. 54 at 2.)
Thus, whether Plaintiff
voluntarily assumed the risk is doubtful. In any event,
such a determination is best left to the trier of fact and
is not appropriate for summary adjudication. Accordingly,
Defendant's Motion for Summary Judgment is DENIED with
respect its defense of assumption of risk.
VI. PLAINTIFF'S FAILURE TO EXERCISE DUE CARE FOR HIS OWN
SAFETY
Defendant's Motion for Summary Judgment also sets forth
as an affirmative defense Plaintiff's failure to exercise
(Doc. 54 at 48.) Pursuant to
due care for his own safety.
37
O.C.G.A,
51-11-7,10 such a showing would bar Plaintiff's
recovery. Defendant cites Union Carbide Corp. v. Holton,
136 Ga. App. 726, 222 S.E.2d 105 (1975) , for the proposition
that a plaintiff's recovery can be precluded, as a matter of
law, by his failure to exercise due care for his own safety,
even though he claims that he did not appreciate the danger
involved and that he was an employee acting under the
direction of his supervisor. (Doc. 54 at 48.) In Union
Carbide, the Georgia Court of Appeals reversed a jury
verdict for the plaintiff, observing that "at some point the
danger and likelihood of self injury becomes so obvious that
actual knowledge by the plaintiff is unnecessary" and that
the situation causing the plaintiff's injury was "obviously
dangerous." Id. at 731, 222 S.E.2d at 110.
Viewing the facts of this case in the light most
favorable to Plaintiff, the Court is unwilling to conclude
that the circumstances causing Plaintiff's injury were
'° O.C.G.A. § 51-11-7, "Diligence of Plaintiff," reads as
follows:
If the plaintiff by ordinary care could have
avoided the consequences to himself caused by the
defendant's negligence, he is not entitled to
recover. In other cases the defendant is not
relieved, although the plaintiff may in some way
have contributed to the injury sustained.
38
obviously dangerous as a matter of law. There is adequate
evidentiary support for the contrary conclusion: Defendant's
own employees raised personnel in the box without incident;
Plaintiff, just prior to incurring his injuries here, had
cut limbs off another tree without any problems; and neither
party had ever previously witnessed any injuries resulting
from this type of use of the equipment. Therefore,
Defendant's motion for summary judgment is DENIED with
respect to this defense.
VII. PUNITIVE DAMAGES
Defendant argues that it is entitled to summary
judgment on Plaintiff's request for punitive damages,
arguing that 'there is no evidence demonstrating willful
misconduct, malice, fraud, wantonness, oppression, or that
entire want of care that would support any presumption of
conscious indifference to consequences." (Doc. 54 at 39.)
In response, Plaintiff contends that "[t]he extensive
knowledge of the Defendant, that the loaning of the lift for
the intended purpose was inherently dangerous to anyone who
got in same, is almost the definition of conscious
indifference to consequences." (Doc. 85 at 40.)
In order to prevail on a claim for punitive damages,
Plaintiff must demonstrate Defendant's conscious
indifference to their safety. See Hod2es v. Effingham Cnty.
39
Hosp. Auth., 182 Ga. App. 173, 175, 355 S.E.2d 104 (1987)
are appropriate)
(discussing when punitive damages
"Negligence alone, even gross negligence, will not support
an award of punitive damages." See Lewis v. Suttles Truck
Leasing,
Inc., 869 F. Supp. 947,
949
(S.D. Ga. 1994)
(interpreting Georgia law on 'conscious indifference")
Instead, Plaintiffs must be able to " prove[] by clear and
convincing evidence that the defendant's actions showed
willful misconduct, malice, fraud, wantonness, oppression,
or that entire want of care which would raise the
presumption of conscious indifference to consequences.'
Lilliston v. Regions Bank, 288 Ga. App. 241, 246, 653 S.E.2d
306, 311 (2007) (quoting O.C.G.A. § 51-12-5.1)
After careful consideration, the Court finds that there
is not sufficient evidence in the record to support an award
of punitive damages in this case. Plaintiffs' remaining
claim is not based on Defendant's actual knowledge that the
boom lift and wooden box were dangerous when used to raise
and lower individuals. Rather, Plaintiff's remaining claim
is that Defendant should have known both that Mr. Jump
intended to use the equipment to raise Plaintiff to cut tree
limbs, and that it was dangerous for that use. While
Plaintiff has presented sufficient evidence to allow a jury
to conclude, by a preponderance of the evidence, that
40
Defendant should have known both how the equipment was to be
used and the dangers posed by that use, Plaintiff has not
presented sufficient evidence to prove to a jury, by clear
and convincing evidence, that Defendant acted with conscious
indifference to the consequences to lending the equipment to
Mr. Jump. Accordingly, Defendant's request for summary
judgment on Plaintiff's claim for punitive damages is
GRANTED.
CONCLUSION
For the foregoing reasons, Defendant's motion is
GRANTED IN PART
and DENIED IN PART. Plaintiff may proceed
with his claim based on the supply of chattel for dangerous
use. (Doe. 1 at 20-21.) However, Plaintiff's remaining
claims, including his claim for punitive damages, are
DISMISSED.
SO ORDERED this
30 "day of September 2011.
WILLIAM T. MOORE, JR.J
UNITED STATES DISTRIT COURT
SOUTHERN DISTRICT OF GEORGIA
41
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