McDonald v. COCA-COLA ENTERPRISES, INC.

Andrews, Judge,

dissenting.

Because I find the sole proximate cause of McDonald’s injury was his failure to exercise ordinary care for his own safety, I respectfully dissent from the majority’s position.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A movant/defendant who will not bear the burden of proof at trial need not affirmatively disprove the plaintiff’s case; instead, the defendant’s burden may be discharged by showing an absence of evidence to support at least one essential element of the plaintiffs case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In this case, the material facts are undisputed. McDonald told the driver of the 48-foot-long tractor-trailer rig to pull his truck forward a few inches, and, while the driver was pulling forward, McDonald put his arm in the approximately six- to eight-inch space between the trailer and the warehouse wall to signal the driver to stop. McDonald was not asked to signal the driver, and he did not tell the truck driver to watch for his signal. McDonald now admits it was un*569safe for him to put his arm out there. McDonald testified that while he now knows it was unsafe to put his arm out, he “never even thought about it before.”

Decided March 11, 1996 Finch, McCranie, Brown & Thrash, Charles E. McCranie, Thomas W. Thrash, Jr., for appellant. Rowe, Foltz & Martin, Stephen M. Katz, for appellee.

“One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care.” Brooks v. Douglas, 154 Ga. App. 54, 58 (267 SE2d 495) (1980) (physical precedent only). In order for a court to find as a matter of law that the plaintiff’s contributory negligence is the proximate cause of the injury, the danger must be near enough as to make the plaintiff’s act so “manifestly foolhardy” that it “would not be undertaken by an ordinarily prudent person.” Brooks, supra at 59.

Accordingly, based on McDonald’s own testimony, I find the act of placing one’s arm in a six- to eight-inch space between a moving tractor-trailer truck and a wall is a “manifestly foolhardy” act given the obviously near and immediate danger. Therefore, I find that, as a matter of law, McDonald failed to exercise ordinary care for his own safety and this failure to exercise ordinary care was the sole proximate cause of his injury. Thus, as the defendant has satisfied his burden of showing an absence of evidence to support an essential element of the plaintiff’s case, I would affirm the trial court’s granting of summary judgment to Coca-Cola.