Olympia Services, Inc. v. Sherwin Williams Co.

Blackburn, Judge.

Rhonda Williams filed a complaint against Olympia Services, Inc., alleging that she fell and injured herself while skating at its skating rink. Olympia answered the suit and filed a third-party complaint against Sherwin Williams in which it claimed Sherwin Williams was liable to Olympia for any damages owed Rhonda Williams. The trial court granted summary judgment to Sherwin Williams on Olympia’s third-party claims, and Olympia appeals.

On October 29, 1992, Olympia purchased a polyurethane coating from Sherwin Williams to repair approximately 50 small chips or dings in Olympia’s skating rink floor. Olympia asked employees of Sherwin Williams if there would be a problem with adding additional hardener to the solution to ensure the floor would dry in time for planned weekend activities at the skating rink. Sherwin Williams’ employees stated that adding extra hardener might cause the solution to harden before it could be applied but, otherwise, it would not *438be detrimental to the floor. Relying on the advice of Sherwin Williams’ employees, Olympia applied the solution to the small damaged areas of the skating rink floor. The next morning, an Olympia employee noted the repaired areas had not dried and were “gooey” to the touch. The solution had melted the polyurethane coating of the skating floor in spots where it was applied, revealing the asphalt subfloor.

Representatives from Sherwin Williams assisted employees of Olympia in removing the solution from the skating rink floor. The holes left in the floor after the solution was removed ranged in size, including some as large as a 50-cent piece; the holes had to dry before they could be patched. The employees of Sherwin Williams did not return to assist in the patching of the floor, which Olympia’s employees did as rapidly as possible.

Even though all of the holes in the skating rink floor had not been patched, Olympia elected to open for business on Friday, October 30, 1992, and remained open for its normal operating hours throughout the weekend and the following week while it patched the floor. During the repair period, Olympia took precautions to advise and warn its customers of the condition of the floor. Warnings were posted on the glass entry doors and at various locations throughout the skating rink. Each customer who entered the premises was told by employees that the floor needed repairs and was given the option to skate or not. Traffic cones (pylons) were put over the bad spots within the skating area. Floor guards monitored the floor, and the lights were not turned down. By November 4, 1992, approximately ninety percent of the holes had been repaired and only five or six remained unrepaired.

On November 4, 1992, the day Rhonda Williams fell while skating at the rink of Olympia, she observed holes in the surface of the skating rink floor and gravel on the surface of the floor.

1. Olympia claims the trial court erred in granting summary judgment to Sherwin Williams because its ruling finds Olympia negligent as a matter of law. Although a jury question exists as to whether Olympia acted negligently toward Ms. Williams, that question is not before us. The undisputed facts surrounding this third-party action show that Sherwin Williams is entitled to summary judgment as a matter of law because no act or omission of Sherwin Williams could reasonably be considered the legal, proximate cause of Ms. Williams’ injuries.

Olympia’s third-party action against Sherwin Williams claims only that if Olympia is liable to the plaintiff, Sherwin Williams is liable to Olympia. A third-party complaint does not serve as a tender of another defendant who may be liable to the plaintiff. Kirsch v. Jones, 219 Ga. App. 50, 52 (2) (464 SE2d 4) (1995). The question is *439whether, assuming Olympia acted negligently and is liable to the plaintiff, it may recover in contribution or indemnity from Sherwin Williams.

To prevail on a motion for summary judgment, Sherwin Williams does not need to disprove the plaintiff’s case but must show, by the record, that insufficient evidence exists to support at least one element of Olympia’s third-party claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Where the evidence is plain, the question of whether an act constitutes the intervening and superseding cause of an injury is a question of law. Finney v. Machiz, 218 Ga. App. 771, 772 (463 SE2d 60) (1995).

Here, the evidence shows without question that Olympia knew about the rough and pitted nature of the floor but, despite its knowledge, allowed Ms. Williams to skate. If we assume Sherwin Williams negligently damaged the skating surface and Olympia negligently allowed Ms. Williams to skate on it, the language of Mann v. Hart County Elec. Membership Corp., 180 Ga. App. 340, 341 (349 SE2d 215) (1986) applies to this case. “Where the second actor, after having become aware of the existence of a potential danger created by the negligence of the first actor, acts negligently in respect of the dangerous situation and thereby brings about an accident with injurious consequences to others, the first actor is relieved of liability, because the condition created by him was merely a circumstance and not the proximate cause of the accident. [Cit.]” (Punctuation omitted.) Id. In Mann, the defendant electric company’s powerlines over a lake were not properly marked to warn passing boaters. The plaintiff was a passenger on his brother’s sailboat. Although the brother knew about the risk of steering his sailboat under the powerlines, he did so anyway. The boat’s mast struck the electrified lines, killing the brother and injuring the plaintiff. We found the brother’s negligence superseded the electric company’s negligence and proximately caused the plaintiff’s injuries. Id.

This case centers on whether Ms. Williams’ injuries can be causally connected to Sherwin Williams’ negligence, if any. Whether Olympia discharged its duty to keep the premises reasonably safe for its invitee and in knowingly allowing its customers into the premises with the damaged floor, is a jury question. Sherwin Williams has no liability for the plaintiff’s injury, even if the jury finds Olympia liable, because any negligence of Sherwin Williams was not the proximate cause of the plaintiff’s injuries. See Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176-177 (1) (342 SE2d 497) (1986) (defendant’s actions did nothing more than “furnish the condition”); see also Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 722 (1) (470 SE2d 283) (1996). Like the boat captain in Mann, Olympia made a determination to expose its invitee to this hazardous condi*440tion. Nothing in the record shows Sherwin Williams had any power to prevent Olympia from opening its skating center. See Levangie v. Dunn, 182 Ga. App. 439, 440 (1) (356 SE2d 88) (1987). Olympia’s act of allowing Ms. Williams to skate on this surface before it was repaired cannot be considered a “normal,” and therefore foreseeable, reaction to any error of Sherwin Williams. Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 808 (1) (415 SE2d 705) (1992). As in Meiners v. Fortson & White, 210 Ga. App. 612, 613 (1) (436 SE2d 780) (1993), Sherwin Williams could not reasonably foresee that Olympia would expose Ms. Williams to the known dangerous condition by allowing Ms. Williams to skate before correcting said condition.

Because the language of the trial court’s opinion appears to foreclose the liability of Olympia to Rhonda Williams as a matter of law, we reject its opinion but affirm the judgment.

2. Because the conclusion that Olympia’s acts superseded any negligent acts of Sherwin Williams is dispositive, the trial court properly granted summary judgment on Olympia’s claims for contribution and indemnity. Had Olympia chosen to close its business because of Sherwin Williams’ assumed negligence, then it would have had a claim for losses resulting therefrom against Sherwin Williams. However, Olympia did not so choose. Olympia now seeks to hold Sherwin Williams liable for damages resulting from its own independent conduct. If the premises were not dangerous, then Sherwin Williams could not be liable in any event. If they were dangerous, then it was Olympia’s conscious decision to permit the customers to skate on the defective floor which resulted in injuries to such customers. For these reasons, the trial court properly granted summary judgment to Sherwin Williams, and Olympia’s enumerations of error are without merit.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.