Bowen v. Cochran ( 2001 )

Barnes, Judge,

dissenting.

I respectfully dissent, because the trial court should have directed a verdict on the assumption of risk defense, and because the trial court erred in charging the jury on assumption of risk.

“Knowledge of the risk is the watchword of assumption of risk.” (Citation and punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991). We do not presume that a plaintiff has assumed the risk of activities or conditions he does not know about. “Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts. . . .” (Citation and punctuation omitted.) Id.

The defendant argues that the plaintiff assumed the risk of an explosion because he used a rolled-up newspaper to light the gas rather than the trigger lighter provided. Bowen testified that after he lit the gas cooker, it went out and he unsuccessfully tried twice to relight it before it exploded. He knew he should be “very cautious as far as lighting this particular type of cooker,” and testified that he aired out the grill before the first unsuccessful attempt to relight it and then immediately turned the gas off when it did not light. When the device did not light the second time, he tried to see where his flame was located, but an explosion knocked him down and burned him severely. He further testified that he did not know there was a wrong way to light the cooker.

The defendant testified that he knew of no problem with the cooker unless it was lit improperly and that he explained to buyers that if the flame went out, they should open the lid to ventilate it and then relight it. Plaintiff’s expert design engineer testified that the burner had “a great propensity” not to light quickly, because one end of the burner emitted insufficient gas to light the flame immediately. Only when enough gas had gathered inside the grill to touch the flame did the device ignite “dramatically.” Further, because the burner tube had only one opening instead of two, the release of any accumulated gas would be very slow. The gas, being heavier than air, would pool in the bottom of the burner tube, so that its only means of escape would be to spill out of the single opening after it had pooled. The defendant presented no testimony, expert or otherwise, to dispute or contradict the engineer’s explanation for the explosion that burned the plaintiff.

Decided November 15, 2001. Mills & Moss, David C. Moss, for appellants. Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Daniel S. Wright, for appellees.

Although the defendant said he told the plaintiff to use the trigger lighter, no evidence indicated that he also told him that using an alternate lighting source might cause the gas cooker to explode. Further, no evidence at trial suggested that using a lighted, rolled piece of newspaper rather than the trigger lighter caused the explosion. If these facts constitute the assumption of risk, then anyone who lights a gas grill with a source other than that provided by the manufacturer has assumed the risk of explosion, a ridiculous result.

In order for the plaintiff in this case to have assumed the risk, there must be evidence that, knowing that the cooker did not light properly, that gas pooled in the burner tube when the flame went out, and that the gas did not dissipate due to the single-opening construction, he then made a conscious decision to attempt to relight the unit despite the danger of the pooled gas exploding. To the contrary, the defendant himself testified that he instructed purchasers to ventilate the unit by lifting the lid if the flame went out, which the plaintiff testified he did. No evidence existed in this case showing the plaintiff knew or should have known of the specific risk that caused the explosion, and the trial court erred in failing to grant a directed verdict and in charging the jury on the assumption of risk.

The evidence creates an issue for the jury regarding contributory negligence, but not regarding assumption of risk. “If, in the exercise of ordinary reasonable care for his own safety, [plaintiff] could and should have discovered the danger before he actually did and could and should have avoided the [injury], then he would have been contributorily negligent, but he would not have assumed the risk.” Beringause v. Fogleman Truck Lines, supra, 200 Ga. App. at 824 (4).

For these reasons, I respectfully dissent to the majority opinion.