Tolar Construction Co. v. Ellington , 137 Ga. App. 847 ( 1976 )

Stolz, Judge,

dissenting.

The majority opinion appears to be founded upon the theory that the plaintiffs knowledge of the opening in the roof bars his recovery as a matter of law. At the time the plaintiff fell into the opening, he was in the process of spreading a hot tar covering on the roof with a roller. To accomplish his task, it was necessary, for all practical purposes, for the plaintiff to walk backwards, pulling the hot tar and roller.¹ While the plaintiff generally knew about the holes in the roof, he testified that he had not seen the hole into which he fell. The record shows that the defendant, the general contractor on this construction project, was well aware of the openings on the roof and that workers, such as the plaintiff, would be on the roof performing their various duties. Nevertheless, the defendant placed no barricades around the opening in question on the day of the plaintiffs injury. Issues of negligence, contributory negligence, assumption of risks and the like are not susceptible of summary adjudication, but are peculiarly within the province of the jury.²

Since I feel that a factual issue is presented which should be resolved by a jury, I would affirm the judgment of the Fulton Superior Court.

I am authorized to state that Judge Evans concurs in this dissent.

1 Obviously, if the plaintiff pushed the hot tar and roller, he would have to walk on the just-rolled hot tar, with the resulting consequences.

2 For an excellent discussion of the foregoing in a case factually similar to the case at bar, see Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (1) (174 SE2d 178). This opinion was written by then Presiding Judge (now Justice) Hall, with concurrences by Bell, C. J., Pannell, P. J., Deen, Quillian and Evans, JJ. Whitman, J. (now deceased) concurred in the judgment. Jordan, P. J. (now Justice) and Eberhardt, J. (now deceased) dissented.