Carey v. WR GRACE & CO., CONN.

Birdsong, Presiding Judge.

Appellant/plaintiff Ransom D. Carey, Sr. appeals from the order of the superior court granting summary judgment to appellee/defendant W. R. Grace & Company, Conn. (Grace Company).

This is a negligence suit for damages. Appellant, a truck driver, drove to appellee Grace Company’s premises to pick up a load of drums to be transported for appellee. Upon completion of the loading, appellant was requested by a Grace Company employee (employee) to assist in moving a heavy steel dock plate, which had been used as a ramp between the dock and the truck, off the back of appellant’s truck so it could exit the premises. It was averred in the complaint that the employee had superior knowledge of the conditions of the loading dock area, that he supervised and directed appellant as to his direction and movement (as the latter was unable to turn to see behind him as he was holding the dock plate), and that the employee did negligently direct appellant into a wooden pallet or pallets causing him to fall backwards and to be struck by the dock plate. Appellant fell over either a 48-inch by 48-inch by 2-inch or 3-inch single pallet or a pair of stacked pallets. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843).

*7292. Appellant testified by way of deposition that as he watched his truck being loaded, “the pallets were being left at the same position, the same place [as] the other driver was bringing them”; so there was one large stack of pallets. Appellant subsequently testified that he understood there was a specific place designated for pallets, and that “all the other pallets that we were working with were moved to a specific area,” but the pallet he tripped on had not been moved from the walkway to the designated area thereby causing him to fall. Appellant’s testimony is inconsistent regarding whether, within his knowledge, the other pallets had been moved to a designated area or just left in a stack in the immediate vicinity of the loading operation. As no reasonable explanation has been offered for this inconsistency, we will apply the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) to the inconsistent evidence. Compare Papera v. TOC Retail, 218 Ga. App. 777 (2) (463 SE2d 61).

3. Appellant gave uncontroverted deposition testimony that he watched the Grace Company employee load barrels from pallets onto the truck; the employee would pick up a barrel with his forklift, drive the forklift into the truck and unload the barrel. After the barrels were loaded, the pallets were left in their original position, resulting in one stack of pallets. The employee parked his vehicle and asked if appellant would help him move the dock plate, and appellant agreed to do so. Appellant grasped an end of the dock plate and asked, “Where do you want to go with it?” The employee replied, “Let’s put it over behind you” or “Let’s go behind you there.” Appellant initially “just stood to wait upon [the employee] . . . and [appellant] totally relied upon whatever [the employee] wanted to do because [appellant] didn’t know what he wanted to do.” The employee chose the route to be taken with the dock plate. Appellant further testified he totally relied upon the employee because he did not know where to go, what to do, how to do it, where the safety zones were located on the premises, or where he was or was not supposed to walk. He “assumed” the employee “knew what he wanted to do” and “had appraised the entire area and [determined] everything was safe.” However in a handwritten statement of appellant made prior to and attached to his deposition as Defense Exhibit No. 3, appellant stated that he “fell backwards and [the] dock plate fell on top of me before Jim [the employee] or myself realized they [the two stacked pallets] were setting on the platform.” Appellant looked behind him before moving backwards “to see if there was a clearance, to see if nothing was there in [his] path”; he “obviously looked around to make sure [he] wouldn’t rim into anything.” He looked over his right shoulder and saw nothing in view; he did not look over his left shoulder. Appellant then took two or three steps backwards and tripped on either a single pallet or, more likely, two stacked pallets. After falling appel*730lant could see the pallet sitting in plain view. Although he was unaware when this pallet was placed in the work area, it was placed in the work area after he had parked his truck. The pallet was approximately two or three feet from where appellant was standing when he watched his truck being loaded; there was no other loading activity occurring in the area at the time. Appellant admitted that if a need had existed for him to turn around and look in the direction of the pallet before he moved backwards, he would have been able to see it.

During the course of picking up the dock plate and moving backwards with it, appellant and the employee were engaged in a brief, voluntary conversation in which appellant asked “questions about the kinds of material that [the employee] had placed on the trailer and what would be the types of placards that would [be needed] to accommodate this load.” All of this was happening during the movement of the dock plate; the employee was talking to appellant and vice versa; it was just spontaneous. Immediately after the incident appellant never said anything to the employee to the effect of “why weren’t you watching out for me.” At no time prior to the incident had the employee “said that he would keep an eye out for any obstructions behind” appellant, or “don’t look behind you.” Appellant did look behind himself before moving.

(a) By appellant’s own testimony the pallets were visible in the loading area, and no evidence exists from which a reasonable inference could be drawn that the pallets had been concealed in any manner. “The pallets clearly were visible and posed no latent danger. ‘The duty to warn extends only to a latent danger — not to an open or obvious one.’ ” Lee v. Peacock, 199 Ga. App. 192, 194 (3) (404 SE2d 473). Further, appellant “ ‘was under a duty to use (his) sight to discover any defects or dangers.’ ” Id. at 195. Although appellant, by his own written statement, has acknowledged that appellee’s employee was not aware of the location of the pallet until appellant fell, we need not reach that issue. Suffice it to say, the pallet was open and obvious and appellee had no duty to warn.

Further, appellant admitted that if he had perceived a need to turn around and look behind him before the incident, he would have seen the pallet or pallets behind him. Yet, appellant also testified that, before proceeding backwards, he “obviously looked around to make sure [he] wouldn’t run into anything.” Assuming without deciding that this testimony is not in conflict with appellant’s testimony that he was relying entirely upon the employee for direction, it clearly demonstrates appellant’s awareness of the need to look out for his own safety before proceeding. Yet, appellant failed to turn around and look at his path before lifting the dock plate and proceeding backwards. “Because [appellant]' did not exercise due care for [his] own safety we hold . . . that ‘this is a plain, palpable, and indisputa*731ble case not calling for resolution by a jury.’ ” Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 338 (449 SE2d 613); compare Vermont American Corp. v. Day, 217 Ga. App. 65 (456 SE2d 618).

(b) Appellant’s reliance on Pique v. Lee, 218 Ga. App. 357 (461 SE2d 302) is misplaced as the facts of this case are distinguishable; the beauty chair in Pique had a defect not open and obvious in nature, that is, the locking device of the hair salon chair was not activated, notwithstanding a contrary business custom, before the patron was ushered to the chair by a salon employee. Likewise distinguishable is Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166 (450 SE2d 275) where the peril caused by the painted surface was not discoverable by the plaintiff. The pallets in the case at bar were open and obvious.

(c) For the reasons addressed in Division 3 (a), to the extent appellant/plaintiff’s complaint averred that injury was sustained due to the active negligence (see generally Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193); Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810)) of appellee’s employee in failing to safely direct appellant’s backward movement, we also are satisfied that the trial court did not err in granting summary judgment to appellee. Additionally, any evidence offered by appellant to establish the employee had superior knowledge of the danger posed by the pallet would be inconsistent with appellant’s written statement expressly asserting that at the time of his fall neither he nor the employee was aware the pallets were on the loading platform.

Judgment affirmed.

Andrews, Johnson, Blackburn and Smith, JJ, concur. Beasley, C. J., McMurray, P. J., Pope, P. J., and Ruffin, J., dissent.