York v. Winn-Dixie Atlanta, Inc. ( 1995 )

Blackburn, Judge,

respectfully dissenting.

I respectfully dissent, because this case is distinguishable from Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (289 SE2d 807) (1982), wherein we recognized that an employee’s “freedom of choice [can be] restricted by the circumstances under which he works and the coercion of seeking to remain employed.” Id. at 703. In the present case, York complained to the warehouse supervisor regarding the specific hazard which caused his injury. Yet, despite the hazards, York proceeded to unload the fish. York’s contention that he was coerced by the warehouse supervisor’s order is without merit. The warehouse supervisor was not York’s employer or even an agent of York’s employer. York’s freedom of choice was not so restricted by the circumstances or by the warehouse supervisor’s order that it can be said that he did not voluntarily choose an obviously perilous course of conduct.

Decided July 13, 1995 Furlong & Franco, Walter W. Furlong, Randie H. Siegel, for appellant. Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellees.

“Although issues of negligence . . . and assumption of the risk are ordinarily not susceptible to summary adjudication [,] where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment. The business invitee on private premises assumes the risk of danger of which he knows and fully comprehends, or which is sufficiently obvious.” (Citations and punctuation omitted.) Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344) (1993).

The trial court correctly granted defendants’ motion for summary judgment.

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