Carey v. WR GRACE & CO., CONN.

Beasley, Chief Judge,

dissenting.

I respectfully dissent. There are issues of fact to be decided by a jury with respect to whether, for one thing, the premises owner exercised ordinary care, as required by OCGA § 51-3-1, in keeping the premises safe for the person whose movement its employee directed and controlled at the time he fell. The duty is owed to workers who have been hired to work on the premises, as plaintiff was. Howell v. Farmers Peanut Market of Sowega, 212 Ga. App. 610, 611 (1) (442 SE2d 904) (1994).

The primary legal issue on the motion for summary judgment is whether the evidence, construed most favorably for plaintiff Carey, demonstrates as a matter of law that he did not have knowledge superior or equal to that of defendant’s employee Broomall of the pallet or pallets on which he fell. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (3) (422 SE2d 305) (1992), citing Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982).

*732This case differs from that of the usual slip/trip and fall case in at least two significant factors: plaintiff was moving backward, not forward, and his movement was directed and controlled at the time by defendant’s employee, who had the other end of the heavy dock plate. The relative knowledge and opportunity of Carey and Broomall does not establish as a matter of law that Carey’s was equal to or superior to Broomall’s. The “plain view” cases cited in the majority opinion involve situations where plaintiff was walking forward and thus could be expected to watch as he walked. See, e.g., Lee v. Peacock, 199 Ga. App. 192 (404 SE2d 473) (1991); Edwards v. Wal-Mart Stores, 215 Ga. App. 336 (449 SE2d 613) (1994). Even where plaintiff is facing forward, “The mere fact that [plaintiff] was not looking ahead does not demand a finding that [plaintiff] was not exercising ordinary care for [his] own safety. Looking continuously, without intermission, for defects in a floor is not required in all circumstances. (Cits.) What is a ‘reasonable lookout’ depends on all the circumstances at the time and place. (Cit.) [Cits.]” (Punctuation omitted.) Food Giant v. Cooke, 186 Ga. App. 253, 257 (2) (366 SE2d 781) (1988).

During the loading process, there was nothing to put Carey on notice to become particularly aware of where pallets were or had been put, as he could not have anticipated that he would be asked for gratuitous help in moving a heavy item. Broomall, on the other hand, was already familiar with the premises and with the placement of pallets during the course of operations. When Broomall asked for Carey’s help and Carey obliged, Broomall supervised the relocation process and took over the direction of Carey’s movement, obviously with knowledge that Carey could not see where he was going but that Broomall could because Broomall directed his movement backward. He, not Carey, controlled where Carey walked at that moment, because not only did Carey rely on him for guidance, but Broomall was steering the movement of them both as they grasped the object.

Carey’s description of the incident, in which he testified that neither one of them “realized” the pallets were on the platform, creating a hazard in the way chosen by Broomall, does not relieve defendant of superior knowledge; Carey does not say that Broomall’s lack of realization was without fault. That Carey may have determined after the incident that Broomall was unaware Carey was moving towards the two pallets has no bearing on whether Carey relied on Broomall at the time to guide him along a safe path. Whether Broomall should have realized the pallets were there, since he had undertaken the responsibility to direct the safe movement of another person who could not see where he was walking as he walked, is a question of the exercise of ordinary care, for the jury.

Broomall was completely familiar with the loading dock and the *733procedures and knew that Carey, a visitor, was not; he knew or should have known that Carey was of necessity following his lead because of the position he put Carey in; he knew, and he knew Carey did not know, where the dock plate was to be put; and it is reasonably inferable that he or another Grace Company employee had placed the hazard where it was. It was open and obvious to him but not to Carey, whose eyes were forward, not backward. Broomall put Carey in a position of peril by prevailing upon him to help, and to do so by walking backward so he could not see where he was going. Carey brought forth evidence that defendant’s knowledge of the peril was superior, at least constructively, so as to avoid summary judgment. Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993).

He also presented evidence that he was exercising ordinary care for his own safety in this injury-producing maneuver. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). He did look behind him before they began moving the plate; whether looking over only his right shoulder and not his left constitutes a failure of ordinary care is a jury question; we cannot say as a matter of law that his precautions were deficient, or that his reliance on the path selector was unjustified, or that his failure to see the specific hazard resulted from his own negligence. See Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994), and Sacker v. Perry Realty Svcs., 217 Ga. App. 300 (457 SE2d 208) (1995), as to knowledge of specific hazard. Whether under OCGA § 51-11-7 he failed to exercise reasonable care to avoid the consequences of defendant’s negligent steerage, assuming it was such, is a jury question. Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733-734 (149 SE2d 527) (1966). Broomall, not he, had control of where they headed; he was the captain of the ship.

In Division 2 of the majority opinion, the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), is applied to two portions of Carey’s deposition testimony. He first says 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. Carey 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. This testimony is not inconsistent. In both instances, Carey says the pallets are stacked in one place. In the later testimony, he just adds that the one he tripped over had not been stacked with the others.

Even if the testimony were inconsistent, it is not dispositive. *734Both parties acknowledge that Carey fell backwards over one or two pallets that had not been stacked with the others, and “only in cases where there is a direct contradiction in the testimony of the respondent as to a material issue of fact will that party’s unfavorable testimony be taken against him.” Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 714 (279 SE2d 210) (1981).

This case, like Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810) (1992), does not involve merely a pre-existing defect on the premises but rather the active performance of acts and omissions which occurred after he arrived there. As recognized in that case, the Supreme Court in Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445) (1992), reaffirmed a legal distinction, in premises liability cases, between those where the alleged negligence arises from static or passive conditions and those where active negligence by act or omission is the basis. The cases involving pre-existing premises defects are not controlling. Wade, supra at 266. See also Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994) (steering plaintiff to a place where pallets were left on the platform is not lack of negligence per se).

As to plaintiff’s reliance on the steering undertaken by defendant’s employee Broomall, the case of Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832 (331 SE2d 899) (1985), is analogous. It, too, involved reliance by plaintiff on the direction of another person, and we reversed summary judgment to defendant. We applied the standard view of the function of the jury versus a conclusive application of legal principles, saying: “Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25). Added to that list are related issues of assumption of risk, lack of ordinary care for one’s safety, lack of ordinary care in failing to foresee a condition which could cause injury [cit.], and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. [Cit.] Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication. [Cit.]” (Punctuation omitted.) Id. at 836.

The plaintiff in that case was entitled to a jury trial, and so is Carey. Here we have not only the duty of a premises owner, but also the duty of one who is the agent of the premises owner who undertakes to direct the movements of a business invitee to the premises. Even where facts in a case “ ‘are uncontradicted and uncontroverted, where they are such that there is room for difference of opinion between reasonable [persons] as to whether or not negligence should *735be inferred, the right to draw the inference is peculiarly within the exclusive province of the jury. [Cits.]’ [Cit.]” Yeager v. Jacobs, 111 Ga. App. 358 (2) (141 SE2d 837) (1965). As in Lipham, supra at 866, so here, the question of whether Broomall acted with ordinary care is one for the jury. The case, in its present evidentiary form, does not warrant summary judgment.

Decided June 17, 1996 Fink & Travis, David A. Fink, for appellant. Webb, Carlock, Copeland, Semler & Stair, David F. Root, James R. Doyle II, for appellee. I am authorized to state that Presiding Judge McMurray, Presiding Judge Pope and Judge Ruffin join in this dissent.