BLI Construction Co. v. Debari

Stolz, Judge.

This evidence does not demand a finding, as it did in Dekle v. Todd, 132 Ga.App. 156 (207 SE2d 654)thatthe plaintiff voluntarily assumed a known risk of injury in doing a dangerous and foolhardy act so as to preclude recovery. Under contract specifications the defendant was charged with taking proper safety precautions in connection with the work. It constructed three walls, two of which apparently were blown over during a severe thunderstorm. The third, which had withstood the storm and been standing for a week or two at the time, was then braced, a precaution which had been previously urged by the plaintiff; however, the bracing was applied to the east side only. Two weeks later the bracing was temporarily removed to allow installation of sheeting and wire mesh, and plaintiff was instructed to measure certain adjacent surfaces prior to installation of concrete work. On the morning in question there was testimony that the day was pleasant and calm, that no one was apprehensive about the wall, and that other workmen including the defendant’s job superintendent, the head carpenter, the workmen laying the mesh and sheeting, and others had all worked in the immediate vicinity of the wall. Plaintiff did the required measuring, working on the east side, and after he finished walked away, but just at that moment the wall tilted and fell in his direction, inflicting severe injuries. Whether a sudden gust of wind or some other cause was responsible is a matter of conjecture. There was expert testimony that the defendant was negligent in building a long, free-standing wall sixteen or eighteen feet high, and defendant contends that as a matter of law, if this is so, the plaintiff assumed the risk of going in its vicinity while the bracing was removed. It was not, however, the plaintiffs duty to ascertain with certainty the stresses which the wall would bear — he knew it had been standing for several weeks and had withstood the storm which destroyed the others without bracing. He also knew that the day in question was clear and calm. If in fact a sudden gust of wind came up it must have come from the west and the plaintiff, walking away on the eastern side, testified he was unaware of it if such was the case. The term assumption of risk in strict fact is an outgrowth of master-servant law; what we are really concerned about here is whether the danger of this wall collapsing was so obvious and patent that any person injured by going in its vicinity must be held, under Code § 105-603 to be so lacking in ordinary care to avoid the known negligence of the defendant as not to be entitled to recover. Here, neither the appellant nor a co-defendant introduced any evidence, and there is not an iota proffered by the plaintiff to suggest that the wall was in imminent danger of collapse or that any external force was at work to bring it down. Assumption of risk, as pointed out in Yandle v. Alexander, 116 Ga. App. 165, 167 (156 SE2d 504), if it may be applied to cases such as this, involves both a knowledge of the danger and an intelligent acquiescence in it. Considered either as thus denominated or as lack of ordinary care to avoid the negligence of another, the appellant’s argument addresses itself to the juiy, not to this court, and the trial judge properly denied the motion for directed verdict. On the other hand, the court did instruct the jury on the law of comparative negligence, and the jury may properly have applied this rule in returning a verdict substantially less than the amount sued for.

Under the evidence the trial judge erroneously submitted the issue of "punitive damages” to the jury. The státutory basis for allowing "punitive damages” is found in Code § 105-2002. "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.”

As stated in the statute, in order to bring this statute into operation there must be a tort where there are aggravating circumstances, either in the act or the intention. There is certainly no evidence in this record showing an intentional tort. "The additional damages provided for by this section cannot be imposed in any case unless there is wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” Hughes v. Bivins, 31 Ga. App. 198, 199 (3) (121 SE 590) and cits. "Mere negligence, although gross, will not alone authorize the recovery of punitive damages.” Co-op Cab Co. v. Arnold, 106 Ga. App. 160, 164 (126 SE2d 689); Southern R. Co. v. O’Bryan, 119 Ga. 147 (1) (45 SE 1000).

The facts in the case sub judice, as revealed by the record and recited hereinabove, simply do not bring this case within the contemplation of the statute authorizing "punitive damages.” To hold otherwise would have the effect of making almost every tort case one in which the jury would be allowed to consider allowing damages under Code § 105-2002. In our judgment this would not be good policy or sound law. The judgment is affirmed provided the award for "punitive damages” is stricken within ten days of the receipt of the remittitur in the trial court; if it is not, the defendant is granted a new trial.

Judgment affirmed in part and reversed in part.

Bell, C. J., Pannell, P. J., Deen, P. J., Quillian, Clark and Marshall, JJ., concur. Evans and Webb, JJ., dissent.