United States Court of Appeals, Eleventh Circuit.
No. 95-9591.
Jerry Ricky CLAYTON, Susan Clayton, Plaintiffs-Appellants,
State of Georgia Department of Administrative Services,
Intervenor-Plaintiff-Appellant,
v.
Johnny E. TRAVIS, Defendant-Appellee.
April 7, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:94-CV-1224-HLM), Harold L. Murphy,
District Judge.
Before ANDERSON and CARNES, Circuit Judges, and STROM*, Senior
District Judge.
ANDERSON, Circuit Judge:
In this diversity case applying Georgia law,
appellants/plaintiffs Jerry Ricky Clayton, a traffic signal
technician for the Georgia Department of Transportation ("DOT"),
Susan Clayton, and the State of Georgia Department of
Administrative Services ("GDAS")1 appeal from a jury verdict for
defendant-appellee, Johnny E. Travis, in the United States District
Court for the Northern District of Georgia. Travis was employed by
Knoxville Door and Millworks, Inc. Plaintiffs brought suit against
Travis for injuries sustained by Clayton when the aerial lift, or
*
Honorable Lyle E. Strom, Senior U.S. District Judge for the
District of Nebraska, sitting by designation.
1
Pursuant to O.C.G.A. § 34-9-11.1, the GDAS intervened in
the Claytons' suit against Travis based upon its workers'
compensation subrogation claim. The GDAS asserted against Travis
the same claims as those asserted by the Claytons.
bucket,2 which Clayton was occupying was struck by a tractor
trailer operated by Travis.
I. FACTS3
On September 16, 1993, Clayton4 was sent by his supervisor to
the intersection of Highway 92 and 120 Connector to install red
strobe lights5 onto newly erected traffic signal heads. Clayton
had helped to install the new traffic signals during the two days
prior to the accident. The signals were being installed because
heavy traffic flow made it difficult for drivers to negotiate the
intersection.
When Clayton first arrived at this intersection, he and
co-worker Terry Rutledge measured the height of the bottom of the
newly installed signal heads, and found that they were between 14
and 141/2 feet above the ground. DOT regulations require the
traffic signals to be at least 17 feet from the ground. Clayton
pulled his boom truck off the roadways, into the northwest quadrant
of the intersection, and attempted to raise the signal heads. This
effort was unsuccessful, however, because the anchors of the span
pole, the pole to which the signals' wires were attached, began to
2
A bucket is located at the end of the extension arm of a
boom truck; this truck is often referred to as a "cherry
picker."
3
We present the facts with inferences in favor of the jury
verdict.
4
At the time of the accident, Clayton had been employed by
the DOT for roughly four years, had driven a cherry picker for
approximately three years, and had worked as a signal technician
for almost two years.
5
A red strobe light, which flashes when the red signal on
the traffic light is on, is a temporary measure used to draw
drivers' attention to new signals.
come out of the ground. Clayton and Rutledge then called a derrick
truck to the scene to place new anchors onto the span pole. When
the derrick truck arrived, an installation repair crew, along with
Rutledge, gathered about twenty-five feet away from Highway 92 in
a slope-like hole or ditch and began to place new anchors onto the
span pole. These DOT workers were not visible to drivers headed
south on Highway 92.
During this time, with the cherry picker still located off the
road in the northwest quadrant, Clayton began the installation work
on the traffic signal above the southbound lane. Clayton got into
the bucket, and moved the extension arm and bucket out over the
southbound lane of traffic and began work on the signal. The
traffic was heavy, and at the time of the accident there was a flow
of traffic in the southbound lane in which Travis was traveling.
As Travis drove his tractor trailer southbound on Highway 92 and
into the intersection, the top of his truck struck the bucket of
the cherry picker, knocking Clayton to the ground.
Travis' truck was 13 feet 5 inches high. The testimony
indicated that there was a standard minimum clearance of 15 feet,
and that truck drivers could assume for example that traffic
signals would be at least 15 feet high. The traffic signal on
which Clayton was working was 14 to 141/2 feet high; Clayton
himself had measured it. According to Rutledge's testimony, the
bottom of Clayton's bucket was 13 to 131/2 feet high. Drexel
Homes, a traffic signal supervisor, testified that he had suggested
to Clayton before he went up in the bucket that it might be a good
idea to wait until the traffic signals were raised to the proper
height. Clayton himself testified that he knew that DOT required
the bottom of traffic lights to be 17 feet above the road so that
they would not be struck by vehicles or objects protruding from
vehicles traveling on the road. Clayton also stated that he was
aware that one of the biggest dangers of working in an aerial lift
was being struck by a vehicle in the traffic below or an object
protruding therefrom. There was also testimony to the effect that
the lane should have been closed before Clayton began such work
because the signal lights were low. However, Clayton did not use
flagmen to divert traffic and close the southbound lane. Nor did
Clayton use a spotter; spotters for aerial lifts stand by the
roadway and watch for traffic such as tall trucks which may be a
problem.
While Clayton was working in the bucket, the traffic signals
in the intersection were flashing yellow. Cones surrounded the
boom truck, and the truck's revolving amber light was on. However,
the truck was off of the roadway, and there was no strobe light
either on the bucket or the arm of the boom truck. Clayton was
wearing a yellow hard hat and an orange vest, but was not wearing
the safety belt recommended by the owner's manual and discussed at
safety meetings.
Expert testimony indicated that Travis was traveling at a
speed of 30 miles per hour. The posted speed at the intersection
was 45 miles per hour, and an advisory sign posted by DOT at the
time recommended a speed of 35 miles per hour. The sight distance
for a vehicle approaching the intersection from Travis' direction
was approximately 750 feet. Travis testified that he did not see
the bucket until he was underneath it, and was not aware that
Clayton was in the bucket until after the accident. The jury
returned a verdict for the defendant Travis.
II. ISSUE
The only issue we address on appeal is appellants' contention
that the district court erred in giving the jury a charge on
assumption of risk.6 With respect to this issue, the only question
preserved for appeal, see note 8 infra, is whether the jury was
presented with enough evidence to provide a basis for an assumption
of risk charge.
III. DISCUSSION
In this diversity action, we apply Georgia law. Erie R. Co.
v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
Under Georgia law, a plaintiff assumes a risk when he "deliberately
chooses an obviously perilous course of conduct" "with full
appreciation of the danger involved." Whitehead v. Seymour, 120
7
Ga.App. 25, 169 S.E.2d 369, 370 (1969) (syllabus by the court).
This affirmative defense bars a plaintiff from recovering on a
negligence claim if the defendant establishes the following: "(1)
[the plaintiff] had actual knowledge of the danger; (2) [the
plaintiff] understood and appreciated the risks associated with
such danger; and, (3) [the plaintiff] voluntarily exposed himself
6
The other argument raised on appeal by the Claytons is
without merit and warrants no discussion.
7
While Georgia law provides the substantive definition of
assumption of risk, federal law governs the quantity and quality
of proof necessary to make out a case for submission to a jury.
Hull v. Merck & Co., Inc., 758 F.2d 1474, 1476 (11th Cir.1985).
This latter, procedural rule is easily applied in this case, and
will not be discussed further.
to those risks." Vaughn v. Pleasent, 266 Ga. 862, 471 S.E.2d 866,
868 (1996).
In Vaughn, which was decided subsequent to this case being
tried, the Supreme Court of Georgia clarified that for a defendant
to assert this affirmative defense, a plaintiff not only must have
"actual" knowledge, but also a "subjective" knowledge of the risk:
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 the injury. (footnote omitted). The
knowledge requirement does not refer to a plaintiff's
comprehension of general, non-specific risks that might be
associated with such conditions or activities. (footnote
omitted).
Vaughn, 266 Ga. 862, 471 S.E. at 868. Thus, in addition to looking
objectively at whether there was evidence to infer that Clayton
assumed a risk, this court must determine whether there was some
evidence to support an inference that subjectively the risk was
apparent to Clayton.
Relying on Vaughn, appellants argue that no evidence was
presented at trial to show that Clayton assumed anything beyond a
general, non-specific risk. We disagree. In Vaughn, police
officer Vaughn brought suit against a truck driver who had pulled
in front of him when he was responding to an emergency. At the
time of the accident, Vaughn was traveling in excess of the speed
limit with his siren sounding and his blue light and headlamps
flashing. 266 Ga. 862, 471 S.E.2d at 867. Upon approaching the
intersection where the accident occurred, Vaughn observed the
following: a green light; stopped cars on the opposite side of
the intersection, which he presumed were yielding to him; and,
near the intersection on the right side of the roadway, a stopped
trailer whose signal lights were not activated. Id. Believing
that the trailer was parked, Vaughn crossed the center lane of the
road to circumvent the trailer and proceeded through the
intersection. At that time, Vaughn realized the trailer was
hitched to a blue pickup truck which was turning left into his
path. The two cars collided. Id.
The Vaughn court held that it was error for the trial court to
charge the jury with assumption of risk, as no evidence was
presented at trial to prove that Vaughn had "actual knowledge that
[the defendant] intended to turn left in front of him, and
nonetheless knowingly and voluntarily continued to travel in excess
of the speed limit in emergency fashion through the intersection."
266 Ga. 862, 471 S.E.2d at 869. The Vaughn court's ruling centered
around the fact that the police officer, in crossing the center
lane to proceed through the intersection, had no prior knowledge
that a truck would turn left into his path: the trailer's signal
lights were not lit or flashing, and the pickup truck was not
visible until the officer had crossed the center lane. In
addition, Vaughn cited Beringause v. Fogleman Truck Lines, Inc.,
200 Ga.App. 822, 823, 409 S.E.2d 524 (1991), where, in finding that
an officer driving in his own lane in a convoy did not assume the
risk of a head-on collision, the court gave weight to the safety
precautions used by the officer: "by his use of flashing emergency
lights, he was insisting that other drivers use care to watch for
him and avoid hitting his vehicle." Vaughn, 266 Ga. 862, 471
S.E.2d at 868-89 (quoting Beringause, 200 Ga.App. at 823, 409
S.E.2d 524).
In arriving at its conclusion, the Vaughn court distinguished
McCrimmons v. Cornell-Young Co., 171 Ga.App. 561, 320 S.E.2d 398
(1984), where "there was some evidence ... that the injured
plaintiff knew of the specific danger associated with the activity
that caused his injury, and appreciated the specific risk of harm
that he was subjecting himself to by engaging in those activities."
266 Ga. 862, 471 S.E.2d at 869 n. 12. In McCrimmons, the trial
court had granted summary judgment for the defendant refining
company, who was being sued by a contract employee injured on its
premises. The plaintiff suffered serious injuries to his face and
head when a split-rim tire assembly exploded in his face while he
was changing a flat conveyor tire without safety equipment. 171
Ga.App. 561, 320 S.E.2d at 399. In an alternative holding, the
court held that the plaintiff "anticipated the risk inherent in the
work he was doing and knowingly assumed the risk." 171 Ga.App.
561, 320 S.E.2d at 401. Critical to the court's holding was the
fact that appellant, before the accident, was aware that there was
a risk that the assembly could explode in his face:
Appellant [in his deposition] ... explained that he was aware
of the danger inherent in changing tires the size of the one
which he was working without using safety equipment; that if
the assembly exploded it could "blow your head off if you
ain't careful"; that before working for Macon Bandag he
always used the safety equipment; that he "went against the
odds" and did the work for Macon Bandag without safety
equipment because he needed the job.
171 Ga.App. 561, 320 S.E.2d at 400. Under the Vaughn analysis,
this plaintiff not only assumed the general risks of working with
large tires, but assumed the specific risk of having an assembly
explode without the protection of safety equipment.
Also instructive is Hull v. Merck & Co., Inc., 758 F.2d 1474
(11th Cir.1985), where this court, applying Georgia law, upheld a
jury charge on assumption of risk. In Hull, the operator of a
chemical plant was sued by Hull, a contract employee who contracted
leukemia after being exposed to chemicals while working on the
replacement of work lines at the plant. Before commencing work at
the plant, Hull was informed that the defendant chemical company
planned to continue operating its factories throughout the
replacement activities. Id. at 1474. In addition, Hull also
received cautionary instructions to wear safety equipment,
including rubber boots, pants, coats, gloves, goggles, and masks.
After a few days of working at the plant, Hull ceased wearing the
protective gear. Id. As a result, he regularly breathed chemical
fumes and allowed liquid to spill on his clothing and body. While
the pipes were supposed to carry only a two percent solution of
waste, on one particular occasion an accidental spill caused Hull
to breathe fumes which contained an 80 to 85 percent solution of
waste. Id. at 1475.
On appeal, Hull claimed that the trial court erred in charging
the jury on assumption of risk. This court, noting that "perfect
knowledge [of the nature and extent of the threat posed] is not
necessary" for the assumption of risk doctrine, held that there was
"ample evidence" to justify the charge on assumption of risk: Hull
knew that the plant planned to continue its factory operations
during the replacement activity; knew that adequate safety gear
was recommended and supplied by his employer; and, "knew from long
experience that the handling of waste chemicals warranted
protective measures, and that coping with a continued flow of waste
warranted an even greater degree of caution." Id. at 1477.
Furthermore, this court noted that, subsequent to his exposure
after the accidental spill, he continued to expose himself for
another month. Id.
In arguing that there was no evidence to support an inference
that Clayton subjectively assumed a risk, appellants point to the
fact that Clayton was not facing Travis' direction at the time he
was struck. While Vaughn does require specific knowledge of a
risk, we do not think that it requires the specificity contended by
appellants, i.e., that Clayton must have actually seen Travis'
tractor trailer approaching the intersection, and then must have
assumed the risk of being hit by that particular vehicle. Rather,
Vaughn cited with approval McCrimmons which applied the assumption
of the risk defense where the specificity of the risk assumed was
comparable to that in the instant case.
In this case, Clayton measured the actual height of the
traffic signals and knew that they were 14 to 141/2 feet high. The
jury could infer that Clayton knew that the bucket in which he
undertook his work was lower than that; this would have been
obvious to him as he worked. Moreover, we know from the evidence
that the bucket was in fact lower; the bucket must have been as
low as 13 feet 5 inches because it was hit by Travis' truck of that
height. The jury could also infer that Clayton was aware of the
specific danger of being hit by a vehicle traveling below if he got
his bucket too low. He testified that he knew that the DOT
required signal lights to be 17 feet high so they would not be hit
by vehicles. He also testified that he knew that a major hazard of
his job was being struck by a vehicle. Indeed, a suggestion had
even been made to him before he went up in the cherry picker that
it might be better to wait until the traffic signals were raised to
their proper, 17 foot height. Finally, the jury could infer that,
at the time he undertook this work, Clayton knew that the traffic
on the highway was heavy.
Notwithstanding the foregoing knowledge, Clayton moved himself
and his bucket out over the oncoming flow of traffic and began
working at the low level he knew to be dangerous, without either
diverting the traffic or even using a spotter to warn him of tall
trucks. We believe that the risk assumed by Clayton—i.e., the
known risk of being hit by an oncoming truck when he got so low—is
at least as specific as that in McCrimmons, where the plaintiff
knowingly assumed the risk that the tire assembly would explode
while changing the tire. We conclude, based on the evidence
presented, that the jury could have found that Clayton sufficiently
contemplated the obvious danger that an oncoming truck might hit
him when he lowered his bucket so low over the flow of traffic.8
IV. CONCLUSION
For the foregoing reasons, we do not find that the district
8
Appellants also argue that certain statutory "rules of the
road" operate to make the assumption of the risk charge
inappropriate. We note that the district court did instruct the
jury with regard to these "rules of the road." However,
appellants did not argue to the district court that these rules
of the road somehow operated to make the assumption of risk
charge inappropriate, or were otherwise relevant to the
assumption of risk issue. We decline to entertain this argument
raised for the first time on appeal. Similarly, appellants argue
for the first time on appeal that Clayton had a special status as
a workman employed in working on the highways and that this
special status is relevant to the assumption of risk issue. We
also decline to entertain this argument.
court erred in charging the jury with assumption of risk.
AFFIRMED.