Evans Cabinet Corp. v. "Automatic" Sprinkler Corp. of America

306 S.E.2d 750, 167 Ga. App. 502, 1983 Ga. App. LEXIS 2529
CourtCourt of Appeals of Georgia
DecidedJuly 15, 1983
Docket65887
StatusPublished
Cited by4 cases

This text of 306 S.E.2d 750 (Evans Cabinet Corp. v. "Automatic" Sprinkler Corp. of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans Cabinet Corp. v. "Automatic" Sprinkler Corp. of America, 306 S.E.2d 750, 167 Ga. App. 502, 1983 Ga. App. LEXIS 2529 (Ga. Ct. App. 1983).

Opinion

Carley, Judge.

Appellant-plaintiff is the lessee of space in a warehouse which contains six separate rental compartments. The warehouse contains a sprinkler system which is designed to be activated by a fire. Specifically, heat from the fire melts a fuse in the sprinkler heads allowing water otherwise contained in pipes to flow from the “fused” or “popped” sprinkler heads. Appellee-defendant neither manufactured nor installed the sprinkler system in the warehouse. Since 1965, however, appellee has held the inspection service contract on the system.

On November 27, 1978, a fire occurred in the warehouse compartment adjoining that rented by appellant. The sprinkler system did not work as designed. The fire “popped” the fuses in the sprinkler heads in the compartment but no water flowed out. Although the fire was contained within fifteen or twenty minutes by the fire department, the compartment sustained substantial damage during the period that the fire was unchecked. That same evening, appellant’s compartment was inspected by its president and the firemen. No damage was found. Returning the next day, appellant’s president re-confirmed that no fire or water damage had been sustained in its compartment.

On November 29, 1978, appellee’s employee visited the warehouse for the purpose of returning the sprinkler system to service. The employee discovered that the valve which controlled the flow of water to the pipes and sprinkler heads above the burned compartment, as well as those above appellant’s compartment, had been closed. Because no water was flowing through the pipes, the system was “dry.” Leaving the valve closed and the system “dry,” the employee replaced the “fused” sprinkler heads in the burned compartment. That task accomplished, the employee returned the system to its “wet” state by opening the valve and allowing water to once again flow through the pipes. The employee then left the warehouse, apparently without determining if there were any leaks or unreplaced “fused” sprinkler heads.

The employee returned to the warehouse the following morning. At that time he discovered that water was flowing from the ceiling of appellant’s compartment. Taking a flashlight, the employee went through a “scuttle hole” and discovered a “fused” sprinkler head above the ceiling of appellant’s compartment. Water was flowing from the sprinkler head, hitting the ceiling and then spreading and dripping over the materials stored in appellant’s compartment. The [503]*503sprinkler head was replaced and further investigation revealed a hole in the common fire wall between appellant’s compartment and the adjoining one where the fire had occurred. This hole was only a few feet from the “fused” sprinkler head over appellant’s compartment. The evidence at trial suggested that the heat from the fire in the adjoining compartment had entered the hole in the fire wall causing the sprinkler head over appellant’s compartment to “fuse.” Apparently no water had flowed from this “fused” sprinkler head on the night of the fire, just as none had flowed from the sprinklers in the adjoining compartment. However, when the “fused” sprinkler heads had been replaced in the adjoining compartment and water had then been allowed to flow through the pipes, the result was the undetected and unstaunched flow of water from the unreplaced “fused” sprinkler head over appellant’s compartment.

Appellant brought suit against appellee for recovery of the property damage sustained as the result of the water flowing from the “fused” sprinkler head. The case was submitted to the jury and a verdict for appellee was returned. Judgment was entered on the verdict and appellant appeals..

1. Error is enumerated upon the giving of the following charge: “If the plaintiff, by the exercise of ordinary care, could have avoided the consquences to it caused by the defendant’s negligence, if any, the plaintiff is not entitled to recover. Thus, if you find that the defendant was negligent in failing to properly inspect the sprinkler system, but that the plaintiff in its exercise of ordinary care should have examined this property after the fire, then the plaintiff is not entitled to recover. Every person had a duty to exercise ordinary care for the safety of its own property.” (Emphasis supplied.)

A charge on the avoidance doctrine is not authorized in every negligence case. “ ‘The law is well established that where there is no evidence at all of any negligence on the part of the plaintiff, an instruction on this subject is error.’ [Cit.]” Taylor v. Haygood, 113 Ga. App. 30, 33 (147 SE2d 48) (1966). “The burden of proof rests upon the defendant to establish this defense. [Cits.]... [T]he rule applies only after the defendant’s negligence begins and its existence becomes apparent. [Cits.]” Williams v. Southern R. Co., 126 Ga. 710, 711 (55 SE 948) (1906).

There is absolutely no evidence in the instant case showing that appellant knew, or in the exercise of ordinary care, should have detected the possibility that damage to its property impended as the result of appellee’s asserted negligence in inspecting the sprinkler system and in the consequent continuing maintenance of a “fusable” sprinkler head in close proximity to a breach in the fire wall. Indeed, the evidence demonstrates that after the fire appellant’s president [504]*504and the firemen did inspect the premises and discovered nothing indicating that the fire in the adjoining compartment had resulted in any apparent harm to appellant’s property. It is apparently true that appellant’s president did not go through the “scuttle hole” and inspect the area above the ceiling of its premises where the “fused” sprinkler head was located. However, there is nothing to indicate that appellant should have examined the area above its ceiling for “fused” sprinkler heads when, to all outward appearances, the fire and water damage had been adequately contained and limited to the adjoining property. It was not until two days after the fire when appellee’s employee allowed water to flow through the system that it should have become apparent that appellant’s property was in danger. The plaintiff “is not bound to anticipate that some one else will be negligent or injure his property. He is not required to guard against the possible results of defendant’s act so long as it is uncertain whether that act will culminate in an injury to his property. When negligence becomes active, and a plaintiff knows it, he too must be active to avoid consequences which he now sees and knows to be impending. But as long as the defendant’s force is quiescent, the plaintiff himself may remain quiescent. In the presence of a seen danger he must protect his goods, but he is not required to guard against a possible or contingent calamity. [Cit.]” (Emphasis supplied.) Mansfield v. Richardson, 118 Ga. 250, 252 (45 SE 269) (1903).

Appellee had apparently contracted with the warehouse owner to provide inspection service on the sprinkler system, and there is nothing to indicate that appellant was not entitled to rely upon appellee’s performance of that contract before and after the fire. See Huggins v. Aetna Cas. &c. Co., 245 Ga. 248 (264 SE2d 191) (1980). Compare American Mut. Liability Ins. Co. v. Jones, 157 Ga. App. 722 (278 SE2d 410) (1981); Argonaut Ins. Co. v. Clark, 154 Ga. App. 183 (267 SE2d 797) (1980).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

R & R Insulation Services, Inc. v. Royal Indemnity Co.
705 S.E.2d 223 (Court of Appeals of Georgia, 2010)
Bishop v. Mangal Bhai Enterprises, Inc.
392 S.E.2d 535 (Court of Appeals of Georgia, 1990)
Atlanta Center Ltd. v. Cox
341 S.E.2d 15 (Court of Appeals of Georgia, 1986)
Scott & Fetzer Co. v. Montgomery Ward & Co.
473 N.E.2d 421 (Appellate Court of Illinois, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
306 S.E.2d 750, 167 Ga. App. 502, 1983 Ga. App. LEXIS 2529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-cabinet-corp-v-automatic-sprinkler-corp-of-america-gactapp-1983.