Johnson v. Kimberly Clark

Andrews, Chief Judge,

dissenting.

Because the record is devoid of evidence of Kimberly Clark’s superior knowledge of the hazard presented by the freestanding poles, I respectfully dissent. This case deals with the first prong of Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), the owner’s superior knowledge, as discussed in Robinson v. Kroger Co., 268 Ga. 735, 736 (493 SE2d 403) (1997) and is therefore not affected by the changes in summary judgment evidentiary burdens made in Robinson, supra at 748, regarding the second prong of Alterman Foods.

In addition to the facts set out in the majority, the record reflects that in the third bay painted by Johnson, in addition to the four poles bolted to the floor around each piece of machinery, there were two poles not bolted to the floor and “just standing there” off to the side. *513This was the only time he had encountered two freestanding safety poles, and he had seen them during the morning when he walked through the bay. He did not know how the poles came to be loose or standing in the bay or who might have put them there. He did not further examine these two poles, but began painting one of the bolted-down poles about three feet away from those two. He was on his knees facing the pole he was painting and concentrating on it, painting with his left hand. His right hand was fisted on the concrete for balance. The two poles fell, and one crushed his right thumb.

There was no one else in the bay with him, and although there were Kimberly Clark personnel in the offices adjoining the bay, they could not see him because their view was blocked by a wall. Johnson stated repeatedly that he did not knock the poles over, but he did not know what happened or what had caused the poles to fall.

1. The trial court based its grant of summary judgment in large part upon the affidavit of Graf, an Operations Specialist for Kimberly Clark. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

On summary judgment, evidentiary rules apply, Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990), and hearsay evidence is without probative value and cannot be considered unless it is part of the res gestae. Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445 (465 SE2d 484) (1995).

Here, the affidavit of Graf consists primarily of his summary of numerous conversations with unnamed Kimberly Clark employees concerning the loose poles. Such conversations after the fact are clearly hearsay, not part of the res gestae, and inadmissible. Harrison v. Golden, 219 Ga. App. 772, 774 (2) (b) (466 SE2d 890) (1995).

Nonetheless, the grant of summary judgment should be affirmed on appeal if it is right for any reason. Deese v. NationsBank of Ga., 222 Ga. App. 275, 277 (1) (474 SE2d 18) (1996).

2. In addition to Graf’s affidavit, discussed supra, Kimberly Clark relied on Johnson’s answers to interrogatories in which Johnson described the incident and his claim that Kimberly Clark was negligent. In addition to the facts previously set out, Johnson stated that while he was painting the bolted-down pole, “[blehind him and approximately 3 to 5 feet away, a safety pole barrier device of similar size, weight and dimensions, which was not bolted down, fell. . . . Plaintiff asserts that the negligent failure to maintain the heavy steel safety pole barrier device, filled with concrete, in a bolted down condition caused an extreme hazard to persons working at the facilities by creating the potential of the barrier becoming mobile, such as by falling and injuring a person in its vicinity.”

*514(a) Initially, in response to Kimberly Clark’s denial of negligence, Johnson has failed to show that there was any “defect” present in the two unattached safety poles. That they had not yet been installed as they were designed to be does not alone suffice.

(b) Also, even assuming this was a defect, “ ‘ “[bjefore the owner of premises can be held liable for injuries done by reason of a defect therein to one lawfully on the premises in the employ of an independent contractor engaged by the owner to perform services on the premises, it must appear that the owner had control of the premises.” (Cits.) The basis of the owner or occupier’s liability is his superior knowledge of the existence of the defect or hazard that may subject an invitee to an unreasonable risk of harm. (Cits.)’ Amear v. Hall, 164 Ga. App. 163, 167 (2) (296 SE2d 611) (1982).” Brooks v. Oil-Dri Corp. &c., 205 Ga. App. 214, 215-216 (422 SE2d 22) (1992).

Johnson’s own testimony shows that there were no Kimberly Clark employees in the vicinity of the loose poles, nor did any such employee in any way direct how he was to do his work for Goodman. Therefore, there is no evidence of Kimberly Clark’s superior knowledge of the defect. McCurley v. Ludwig, 215 Ga. App. 798 (1) (452 SE2d 554) (1994) (failure of plaintiff to demonstrate superior knowledge of owner of defect in arena under construction which collapsed and injured plaintiff).

(c) Also, here, the fact that Johnson was in the employ of an independent contractor imposes on Goodman and Johnson the obligation to determine whether the place of employment is safe or unsafe and, ordinarily, an independent contractor or his employee may not recover against the owner for injuries sustained in the performance of the contract. Hudson v. Santangelo, 228 Ga. App. 768, 774 (3) (492 SE2d 673) (1997); Torrington Co. v. Hill, 219 Ga. App. 453, 455 (1) (465 SE2d 447) (1995); Brooks, supra; Amear, supra.

(d) Apparently recognizing the dearth of evidence of Kimberly Clark’s knowledge of the defect, Johnson urges the doctrine of res ipsa loquitur as a basis for denial of summary judgment.

“ The expression “res ipsa loquitur” means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage and the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ [Cit.]” Evans v. Heard, 264 Ga. 239, 240 (442 SE2d 753) (1994).

The doctrine is not applied absent the showing of control by the defendant or where there is the possibility of any intervention of an intermediary cause which could have produced the injury. Parker v. *515Dailey, 226 Ga. 643, 645 (1) (177 SE2d 44) (1970); Bridgestone Firestone v. Green, 198 Ga. App. 858, 860 (2) (403 SE2d 442) (1991).

Decided July 16, 1998. Alexander J. Repasky, for appellant. Temple, Strickland, Counts & Dinges, William D. Strickland, for appellee.

Here, as in Innes v. Dixie Svc. Center, 224 Ga. App. 584, 585 (481 SE2d 572) (1997), there has not been the required showing of exclusive control over the object, the loose pole, causing the injury. Innes, employed by Express Services, was dispatched to Dixie Service after a fire to help clean up. limes and his co-worker were to clean storage room shelves by taking down the items off the shelf, cleaning the shelf and item, and replacing items on the shelf. Innes was sitting on a crate cleaning bottom shelves when he was hit on the head and shoulder by a baffle pipe falling from the shelves behind him.

Innes was unable to show how or by whom the baffle pipe had been placed on the shelf before it fell and there was no one from Dixie Service present in the storage room when it fell. Under these circumstances, this Court found no application of res ipsa loquitur.

Similarly, in Sams v. Wal-Mart, 228 Ga. App. 314 (491 SE2d 517) (1997), Sams and her husband were shopping in the housewares department of Wal-Mart when a box or boxes of cookware fell from the shelves and injured her. No Wal-Mart employee was in the vicinity at the time.

Summary judgment to Wal-Mart was affirmed because there was no showing that Wal-Mart’s knowledge of the alleged peril was superior, and the superior knowledge analysis, not res ipsa loquitur, applied. Sams, supra at 316.

Here, as in Sams, the plaintiff was unable to show exclusive control by the owner of the object causing damage, there was no explanation for the actual event causing injury, and on summary judgment, res ipsa loquitur could not be used to “fill the evidentiary gap. Proof of the occurrence of an injury, without more, is insufficient to establish liability on the part of a proprietor.” Id. at 316.

Therefore, for the reasons discussed, I believe the grant of summary judgment to Kimberly Clark should be affirmed.

I am authorized to state that Judge Blackburn joins in this dissent.