Bowen v. Cochran

Miller, Judge.

David R. Bowen and his wife sued Fred Cochran and Classy Cooker Manufacturer’s, Inc. for injuries he sustained when a gas cooking grill manufactured by Cochran exploded, causing severe bums to Bowen’s hands and forearms. The jury found in favor of Cochran.1 On appeal Bowen contends that the court erred in denying his motions for directed verdict on Cochran’s affirmative defenses of assumption of the risk and contributory negligence and erred in charging the jury on these defenses. We discern no error and affirm.

A directed verdict is proper where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict.2 “Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of contributory negligence and assumption of risk are for the jury.”3

The evidence showed that Bowen, who had previously bought two other cookers from Cochran, purchased a third cooker and was using it at his home. Bowen rolled up newspaper to light the burner on the cooker and then opened the gas valve. The cooker lit, and Bowen went into his home for approximately 30 minutes. When Bowen returned, the flame had extinguished, so he raised the lid and turned off the gas. After waiting for a few minutes for the gas smell to dissipate, Bowen made three attempts to relight the cooker by once again lighting the end of rolled up newspaper and placing it on the burner and then opening the gas valve. During the third attempt, Bowen bent over to look into the cooker when a burst of flame exploded, knocking him to the ground and burning his hands and forearms.

1. Bowen argues that the court erred in denying his motion for directed verdict on Cochran’s affirmative defense of assumption of the risk.

Cochran argues that he explained to Bowen how to properly light the cooker with a trigger lighter, but that Bowen instead chose to light the cooker with balls of newspaper and a match. He further argues that he also explained to Bowen how to properly ventilate the cooker if the flame went out and that Bowen was aware through his own experience that a gas cooker must be ventilated after the flame extinguishes before it can be relit.

To show assumption of the risk, “the defendant must present evidence that the plaintiff had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed himself to that risk.”4 Cochran testified that the cookers are lit by opening the sliding door for ventilation, holding the trigger lighter to the burner to start a flame, and then turning on the gas valve. Although there were no written instructions on how to operate the cooker, Cochran provided. Bowen with a trigger lighter and explained to him how to light the cooker. Cochran himself observed Bowen improperly light the cooker by lighting the orifice at the end where the gas enters. He explained to Bowen that he was lighting it improperly and once again showed Bowen the proper lighting procedure.

There must be some evidence that Bowen knew that the cooker could explode if not properly lighted and ventilated, that he understood the risk if the cooker was improperly operated, and that he nevertheless decided to risk operating the cooker improperly. The evidence in fact showed that Bowen lit the cooker improperly on at least two occasions and in two different manners: once by using newspaper instead of the trigger lighter provided by Cochran, and a second time by lighting the end close to where the gas enters. Bowen also left the cooker unattended for 30 minutes with the gas turned on. From this evidence a jury could conclude that Bowen did in fact assume the risk of a flame bursting from the cooker. As there is some evidence to support the affirmative defense of assumption of the risk, the court did not err in denying Bowen’s motion for directed verdict on this ground.5

2. The jury could also have concluded that Bowen was contributorily negligent. “A plaintiff’s contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the defendant.”6 The evidence that Bowen could have assumed the risk as explained in Division 1 is also evidence from which a jury could conclude that Bowen failed to use ordinary care in operating the cooker. Thus, the court did not err in denying Bowen’s motion for directed verdict on this ground.7

The dissent argues that the defense’s pleadings did not properly raise the affirmative defense of assumption of the risk, but this is irrelevant in light of the fact that this defense was raised by the evidence without objection, thereby amending the pleadings.8 Moreover, in his motion for directed verdict, Bowen argued that there was no evidence to support assumption of the risk, not that this defense was improperly pleaded. It was for the jury to weigh the evidence and decide whether the cooker’s potentially faulty design was to blame for Bowen’s injuries or that it was Bowen’s own actions in lighting the cooker with newspaper and a match (that creates a much larger flame than a trigger lighter), or his leaving the cooker unattended for 30 minutes, or improperly lighting the cooker as he had previously. Here, there is a conflict in the evidence as to a material issue, and the evidence does not demand a particular verdict. As there was some evidence to support assumption of the risk and contributory negligence, the court did not err in denying the motion for directed verdict.

3. Bowen argues that the court erred in instructing the jury on the affirmative defenses of assumption of the risk and contributory negligence. “When there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to that issue.”9 As there was evidence from which a jury could con-elude that Bowen assumed the risk of his injury and was contributorily negligent, the court did not err in giving such instructions.10

Judgment affirmed.

Andrews, P. J, Johnson, P. J., Ruffin and Ellington, JJ., concur. Eldridge and Barnes, JJ., dissent.

1 The trial court granted a directed verdict in favor of Classy Cooker Manufacturer’s, Inc., finding that the cooker was not sold through that entity.

2 OCGA § 9-11-50 (a); Gen. Manufactured, Housing v. Murray, 233 Ga. App. 382, 383 (1) (504 SE2d 220) (1998).

3 (Punctuation and footnote omitted.) North Ga. Elec. Membership Corp. v. Webb, 246 Ga. App. 316, 319 (2) (540 SE2d 271) (2000); see Bible v. Jack Eckerd Corp., 227 Ga. App. 882, 885 (490 SE2d 553) (1997).

4 (Footnote omitted.) Cotton v. Bowen, 241 Ga. App. 543 (1) (524 SE2d 737) (1999).

5 See Silva v. Smalls, 200 Ga. App. 141, 143 (1) (407 SE2d 110) (1991).

6 (Footnote omitted.) Webb, supra, 246 Ga. App. at 319 (2).

7 See Hickox v. Seaboard System R., 183 Ga. App. 330, 332 (358 SE2d 889) (1987); see also Spears v. Mires, 187 Ga. App. 656, 658 (3) (371 SE2d 122) (1988); cf. Fincher v. Golden Glove, 195 Ga. App. 83, 84 (1) (392 SE2d 303) (1990).

8 See OCGA § 9-11-15 (b); McCollum v. Doe, 190 Ga. App. 444, 445 (2) (379 SE2d 233) (1989).

9 (Citations and punctuation omitted.) Johnson v. Loggins, 211 Ga. App. 265, 266 (3) (438 SE2d 711) (1993).

10 See id.; Monroe v. Southern R. Co., 210 Ga. App. 597, 598 (1) (436 SE2d 568) (1993).