Little Rapids Corp. v. McCamy

Andrews, Judge,

dissenting.

Because I believe that plaintiff McCamy assumed the risk of injury when he stopped so closely to the loose boxes that they struck him when they fell off the pallet jack, I must respectfully dissent.

“The defense of assumption of the risk requires (1) that the plaintiff had some actual knowledge of the danger; (2) that (he) understood and appreciated the risk therefrom; and (3) that (he) voluntarily exposed (himself) to that risk. (Cits.)” “In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. (Cits.)” Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344) (1993).

Plaintiff McCamy knew of the danger involved when moving loose boxes with no wrapping on them to keep the boxes from shifting. Plaintiff McCamy even warned Tony Coleman about jacking the boxes too high because they would hit the top of the trailer and fall off the pallet. This is precisely what occurred. Therefore, plaintiff Mc-Camy had actual knowledge of the danger and appreciated the risk of accident, i.e., the boxes falling, due to that danger.

Further, plaintiff McCamy voluntarily exposed himself to that risk of harm. As Tony Coleman was unloading the last load, plaintiff McCamy followed behind him, carrying a box. McCamy testified that Tony Coleman was walking backwards and pulling the pallet jack off the truck and, therefore, could not see McCamy who was behind the load of boxes. McCamy further testified that Tony Coleman stopped because he was having trouble getting the load off the truck. McCamy then saw Coleman push the load back and raise the load with the pallet jack. Nevertheless, plaintiff McCamy was standing so close to the load of loose boxes on the pallet jack that when the boxes hit the top of the truck and fell, they struck him.

The majority opinion cites Beringause v. Fogleman Truck Lines, 200 Ga. App. 822 (409 SE2d 524) (1991), for the proposition that plaintiff McCamy’s proximity to the dangerous load may be evidence of contributory negligence, but cannot be considered assumption of the risk. But, in Beringause, plaintiff’s decedent was injured when a truck driving in the opposite direction, swerved into plaintiff’s decedent’s lane and struck the car he was driving head on. The court held that, while there might be evidence of contributory negligence, this was not a case of assumption of the risk. Id. at 824. The court stated that just because a person decides to participate in a convoy he cannot be said to have assumed the risk that a truck will swerve into his lane and hit his car. Id. The court went on to state that plaintiff’s decedent may have been contributorily negligent, however, because he was driving the lead car in a convoy and was using flashing emergency lights, thus causing oncoming drivers to slow down. There was evidence that the truck which hit plaintiff’s decedent’s car was forced to swerve to avoid hitting the car slowing in front of him. Id. at 825.

But, Beringause is not analogous to the situation in the instant case. The risk of harm in the instant case was not tenuous or theoretical, but specific and very real. Moreover, plaintiff McCamy had personal knowledge and experience of the danger posed by unloading loose boxes from the truck. In addition, plaintiff McCamy had warned Tony Coleman just minutes before to be careful not to raise the boxes too high and hit the top of the truck.

In my opinion, this case is similar to Tennison, supra, in which the truck driver attempted to help the forklift operator remove a load of lumber from the truck. The Court held that the plaintiff truck driver voluntarily assumed the risk of a known danger when he climbed onto the pallet of lumber knowing that the forklift was too small and could turn over. Tennison at 344.

Thus, because plaintiff McCamy had actual knowledge of the danger and risk involved in moving the loose boxes, and yet still followed so closely behind the pallet jack that when the boxes did fall they struck him, plaintiff McCamy voluntarily assumed the risk of the danger. Therefore, the trial court erred in denying defendants’ motion for directed verdict.

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

Decided July 7, 1995 Reconsiderations denied July 26, 1995 Swift, Currie, McGhee & Hiers, W. Ray Persons, Micheál D. Watson, Monique R. Walker, for Little Rapids Corporation. Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for Mc-Camy. Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, James R. Doyle II, for Physician Sales & Service.