Lakeshore Contracting, LLC v. Bernardo Lopez-Hernandez

THIRD DIVISION
DILLARD, C. J.,
GOBEIL and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 28, 2019
In the Court of Appeals of Georgia
A19A0446. LAKESHORE CONTRACTING, LLC v. LOPEZ-
HERNANDEZ.
GOBEIL, Judge.
After he was injured by a fall from an allegedly defective ladder that he claims
was provided to his employer by Lakeshore Contracting, LLC (“Lakeshore”),
Bernardo Lopez-Hernandez filed suit against Lakeshore in Crisp County Superior
Court, seeking to recover for his injuries. Lakeshore now appeals from the trial
court’s denial of its motion for summary judgment, arguing that Lopez-Hernandez
failed to come forward with any evidence to create a jury question on the issue of
Lakeshore’s liability. Specifically, Lakeshore contends that Lopez-Hernandez failed
to come forward with any evidence showing either that Lakeshore had actual or
constructive knowledge of the ladder’s allegedly defective condition or that
Lakeshore owed Lopez-Hernandez any duty to provide him with a “safe working
environment.” Lakeshore further contends that the undisputed evidence shows that
Lopez-Hernandez failed to exercise ordinary care for his own safety. For reasons
explained more fully below, we agree with Lakeshore that Lopez-Hernandez failed
to come forward with any evidence that Lakeshore had actual or constructive
knowledge of the ladder’s alleged defect. Accordingly, we reverse the trial court’s
order and remand for entry of judgment in favor of Lakeshore.
On an appeal from the grant or denial of a motion for summary judgment, we
review the record de novo, construing the evidence in the light most favorable to the
non-movant. Samuels v. CBOCS, Inc., 319 Ga. App. 421, 422 (742 SE2d 141) (2012).
And when conducting that review, we bear in mind that to prevail on a motion for
summary judgment:
the moving party must show that there is no genuine dispute as to a
specific material fact and that this specific fact is enough, regardless of
any other facts in the case, to entitle the moving party to judgment as a
matter of law. When a defendant moves for summary judgment as to an
element of the case for which the plaintiff, and not the defendant, will
bear the burden of proof at trial the defendant may show that [it] is
entitled to summary judgment either by affirmatively disproving that
element of the case or by pointing to an absence of evidence in the
record by which the plaintiff might carry the burden to prove that
2
element. And if the defendant does so, the plaintiff cannot rest on his
pleadings, but rather must point to specific evidence giving rise to a
triable issue.
Beale v. O’Shea, 319 Ga. App. 1, 2 (735 SE2d 29) (2012) (citation and punctuation
omitted).
Viewed in the light most favorable to Lopez-Hernandez, as the non-movant,
the record shows that Lakeshore is a general contracting company that builds and
remodels both residential and light commercial properties. Lakeshore’s sole owner
is Greg Walker, and the company has no employees other than Walker. Thus, Walker
subcontracts most of the jobs that Lakeshore is hired to perform. In May 2016,
Quality Solutions, Inc. hired Lakeshore to repair a damaged wall at a Verizon
Wireless store in Newnan. Lakeshore subcontracted the job to Danny Montana, and
Montana, in turn, hired Lopez-Hernandez and Wilson Coca to assist him with the
project.1
1
Lopez-Hernandez testified that on the night in question, he was working for
Danny Montana, and he was paid for his work by Montana. Additionally, Walker
testified that he had hired and paid only Montana, and that any workers hired by
Montana would be paid by Montana. This testimony appears to establish that Lopez-
Hernandez was not, in fact, Lakeshore’s employee. Nevertheless, for purposes of this
appeal, we have assumed the existence of an employer/employee relationship.
3
Lopez-Hernandez and Coca each testified at their respective depositions2 that
before traveling to Newnan, the two of them, together with Montana, stopped by
Walker’s workshop in Cordele to pick up materials needed for the job. According to
both men, Walker loaded items onto a trailer attached to Montana’s truck, including
the ladder at issue. Lopez-Hernandez further testified that there were no other ladders
on the trailer. The men then drove with the ladder on the trailer for approximately
three hours to reach the job site, traveling from Cordele to Newnan.
Montana, Coca, and Lopez-Hernandez began work at the Verizon store at
approximately 10:00 p. m., after the store had closed. The men brought the ladder into
the store from the trailer, and both Coca and Montana used the ladder without
incident, although neither man stepped above the second rung. Coca testified that he
was the first person to use the ladder and when he did so, he made sure that the braces
on either side were locked. He also walked around the ladder to make sure it looked
safe before he climbed it. Although the ladder appeared somewhat old and somewhat
worn out, Coca did not see that it was broken or otherwise looked unsafe.
2
Montana did not give a deposition, and the record indicates that he could not
be located.
4
At approximately 1:00 a. m., Lopez-Hernandez moved the already-open ladder
to his work area and began to ascend the same. As he neared the top of the ladder, one
of the rungs apparently broke or gave way, and Lopez-Hernandez fell from the ladder
head first, suffering several injuries, including a neck injury that required surgery.
The ladder fell with Lopez-Hernandez, landing on its side. At his deposition, Lopez-
Hernandez testified as to his belief that the rung on which he attempted to place his
foot when he fell was already broken explaining that he “didn’t feel that I had put any
weight on it” before the fall. Lopez-Hernandez acknowledged, however, that he did
not perform even a cursory inspection of the ladder, even though nothing prevented
him from doing so. Instead, despite the ladder’s allegedly old and worn appearance,
Lopez-Hernandez simply assumed that the ladder was in good condition and was safe
to use.
After the accident, Lopez-Hernandez filed the current lawsuit against
Lakeshore, alleging that Lakeshore provided Montana and his workers the ladder at
issue to use during the course of the job at the Verizon store. Lopez-Hernandez
further asserted that Lakeshore had actual or constructive knowledge of the ladder’s
defective condition and that the company was negligent in failing to inspect and
maintain the ladder.
5
Following the close of discovery, Lakeshore moved for summary judgment,
asserting that Lopez-Hernandez had failed to come forward with any evidence of
Lakeshore’s liability.3 The trial court denied the motion, finding that although no
evidence showed that Lakeshore had actual knowledge of the ladder’s defect, a
genuine issue of material fact existed with respect to whether Lakeshore “in the
exercise of ordinary care should have inspected the ladder or cautioned Lopez-
Hernandez to inspect the ladder before using [it.]” Additionally, the trial court found
a disputed issue of material fact existed on the question of whether Lakeshore had a
“duty to provide a safe work environment” to Lopez-Hernandez. The trial court
certified its order for immediate review, and we granted Lakeshore’s application for
an interlocutory appeal. This appeal followed.
1. “[T]o recover for injuries caused by another’s negligence, a plaintiff must
show four elements: a duty, a breach of that duty, causation and damages.” Goldstein,
Garber & Salama v. J. B., 300 Ga. 840, 841 (1) (797 SE2d 87) (2017) (citation and
punctuation omitted). Here, Lakeshore contends that Lopez-Hernandez failed to come
forward with any evidence that the company breached any duty it owed him.
3
Although Lakeshore denied that it owned or had provided Montana with the
ladder, it stipulated, for purposes of its summary judgment motion, that its ownership
of the ladder could be assumed.
6
Specifically, Lakeshore asserts that Lopez-Hernandez produced no evidence showing
that Lakeshore knew, or should have known, that the ladder was somehow defective.
We agree.
Under the law of master and servant, an employer is required to use ordinary
care to provide his employee with tools that are in good condition and reasonably
suited to the use for which they are intended. Williams v. Garrbutt Lumber Co., 132
Ga. 221, 224 (64 SE 65) (1909). See also A. F. King & Son v. Simmons, 107 Ga. App.
628, 629-630 (1) (131 SE2d 214) (1963). The employer must also use ordinary care
in inspecting such tools to ensure they are “in proper condition for use.” Williams,
132 Ga. at 224. Moreover, the employer has a duty to warn an employee of any latent
defects in the supplied tools of which the employer is, or should be, aware. Id. at 231-
232. See also OCGA § 34-7-20. The employee, however, has a reciprocal duty to
exercise care for his own safety, and he cannot recover for his injuries resulting from
a defective tool if, in the exercise of ordinary care, he could have discovered the
defect. A. F. King, 107 Ga. App. at 630 (1). See also Smith v. Found, 343 Ga. App.
816, 821 (1) (b) (806 SE2d 287) (2017).
Accordingly, to recover for injuries resulting from an allegedly defective tool
supplied by one who employed him, the injured party must show not only that the tool
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was defective, but that the employer was aware of the defect, or could have learned
of the defect “by the exercise of ordinary care and diligence.” Georgia R. & Banking
Co. v. Nelms, 83 Ga. 70, 74-75 (9 SE2d 1049) (1889). Here, however, Lopez-
Hernandez provided no evidence that the ladder was defective. The mere fact that the
ladder broke while in use is insufficient to show that it was defective in some respect.
Hollingsworth v. Thomas, 148 Ga. App. 38, 41 (1) (250 SE2d 791) (1978) (“[t]here
is no presumption that the tools furnished to an employee by the master were
insufficient from the mere happening of an accident”) (citation and punctuation
omitted).4 Additionally, Lopez-Hernandez’s opinion testimony that the ladder was
broken at the time it was supplied was based on his belief that he had not put any
weight on the broken rung before he fell. Neither Lopez-Hernandez’s opinion or
belief, however, is sufficient to defeat Lakeshore’s summary judgment motion. As we
have explained before, “[g]uesses or speculation which raise merely a conjecture or
possibility are not sufficient to create an inference of fact for consideration on
summary judgment.” Barclay v. Stephenson, 337 Ga. App. 365, 368 (1) (787 SE2d
4
The ladder was unavailable for inspection, but Lopez-Hernandez had pictures
of the ladder as it looked both prior to and following his fall. The “before” pictures
show no obvious defect in or damage to the ladder. The “after” pictures show clearly
that the outside of the ladder was cracked or broken, near the top.
8
322) (2016) (citation, punctuation, and footnote omitted). Thus, where a plaintiff’s
proof that the defendant breached a legal duty “is based on mere possibilities, or the
matter remains one of pure speculation, or conjecture, or the probabilities are at best
evenly balanced, it is the duty of the trial court to grant summary judgment for the
defendant.” Id. (citation, punctuation and footnote omitted) (holding that a plaintiff’s
“‘feelings’ and ‘viewpoint’ about how [a] ladder collapsed [did] not raise factual
questions” as to the causation element of his negligence claim). See also Taylor v.
Thunderbird Lanes, 324 Ga. App. 167, 170 (1) (748 SE2d 308) (2013).
Nor did Lopez-Hernandez come forward with any evidence showing that
Lakeshore knew, or should have known, that the ladder was somehow defective.5
Specifically, Lopez-Hernandez offered no evidence that the defect was obvious from
5
In finding that a material question of fact existed as to whether Lakeshore had
constructive knowledge of the alleged defect, the trial court relied on a premises
liability case for the proposition that “[c]onstructive knowledge may be inferred when
there is evidence that the owner lacked a reasonable inspection procedure. . . .”Gibson
v. Halpern Enterprises, 288 Ga. App. 790, 791 (655 SE2d 624) (2007) (citation and
punctuation omitted). This rule of law is inapplicable, however, in a case involving
an employer’s furnishing of an allegedly defective tool. Under the law of master and
servant, the law presumes that “the master has discharged his duty to [his employee]
by providing suitable instrumentalities for the business, and in keeping them in
[good] condition.” Nelms, 83 Ga. at 75-76 (citation and punctuation omitted).
Accordingly, to avoid summary judgment in this context, a plaintiff must come
forward with some affirmative evidence showing that a reasonable inspection would
have revealed the alleged defect. Id. at 76.
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a visual inspection of the ladder and, in fact, Coca’s undisputed testimony established
the opposite. And given that Lopez-Hernandez proffered no evidence to establish the
nature of the alleged defect, he cannot show that the use of ordinary care in inspecting
the ladder would have revealed any such defect. See Family Thrift v. Birthrong, 336
Ga. App. 601, 604 (1) (785 SE2d 547) (2016) (in a premises liability action arising
out of injuries caused by an allegedly defective chair, the plaintiff’s failure to present
any evidence regarding the nature of the chair’s defect meant there was “no logical
foundation for arguing that such a defect should have been discovered during [an]
inspection procedure”) (citation and punctuation omitted); Freeman v. Eichholz, 308
Ga. App. 18, 23 (2) (705 SE2d 919) (2011) (same). See also Ballard v. Southern
Regional Med. Center, 216 Ga. App. 96, 98 (1) (453 SE2d 123) (1995) (“there is no
duty to discover a defect which is not manifested until the incident causing the
injury”).
Given that Lopez-Hernandez provided no evidence showing that the ladder was
defective or that Lakeshore had actual or constructive knowledge of any such defect,
the trial court erred in denying Lakeshore’s motion for summary judgment. See
Shepherd v. Whigham, 111 Ga. App. 274, 277 (2) (141 SE2d 583) (1965) (defendant-
employer entitled to summary judgment on plaintiff’s claim for injuries arising out
10
of an allegedly defective ladder, where plaintiff failed to come forward with any
evidence that the defect was obvious or that a reasonable inspection would have
revealed the defect). See also Nelms, 83 Ga. at 75 (“[t]he mere fact that [a tool] was
defective . . . and that the [plaintiff’s] injury resulted therefrom, is not sufficient to
authorize [an inference of] negligence on the part of the [employer]”); Beale, 319 Ga.
App. at 2 (a defendant is entitled to summary judgment where it demonstrates “an
absence of evidence in the record by which the plaintiff might carry the burden to
prove [a necessary] element” of his claim) (citation and punctuation omitted).
2. In light of our holding in Division 1, we need not address Lakeshore’s
remaining claims of error.
For the reasons set forth above, we reverse the trial court’s order denying
Lakeshore’s summary judgment motion and remand for entry of judgment in favor
of Lakeshore.
Judgment reversed and case remanded with direction. Dillard, C. J., and
Hodges, J., concur.
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