Nicholas Brown v. Eco-Clean, Inc.

• Court: Court of Appeals of Georgia
• Decided: September 24, 2013
• Docket: A13A1362
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER, and RAY, 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/

September 24, 2013

In the Court of Appeals of Georgia A13A1361. ECO-CLEAN, INC. v. BROWN. A13A1362. BROWN v. ECO-CLEAN, INC. A13A1363. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. BROWN. A13A1364. BROWN v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.

BARNES, Presiding Judge.

Nicholas Brown was standing on the running board of Georgia Tech’s Model

A mascot car while it was being driven from a fraternity house to a garage. When the

car turned a corner, the handle Brown was holding detached from the car and Brown

fell, striking his head on the ground. Brown sued the Board of Regents of the

University System of Georgia, which owned the Georgia Tech car, and Eco-Clean,

Inc., which had refurbished the car two years earlier. He asserted that the defendants

were directly or vicariously liable for negligently installing or maintaining the handle that detached from the car, that the Board of Regents negligently promoted the unsafe

use of the car by students on public roads, and that the Board of Regents was

vicariously liable under The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., for

any negligence on driver’s part while he was maintaining the car on the Board’s

behalf.

The case was tried before a jury. After Brown rested, both defendants moved

for directed verdicts, which the trial court denied. The jury awarded Brown $2 million

in damages but decided that Brown was 32 percent liable for his damages, Eco Clean

34 percent liable, and the Board of Regents 34 percent liable. The trial court entered

judgment against the two defendants for $680,000 each. The defendants appeal, and

for the reasons that follow, we affirm.

Both defendants argue that the trial court erred in denying their motions for

directed verdicts because (1) as a matter of law, Brown assumed the risk of falling

and injuring himself when he rode outside the car, and (2) Brown presented

insufficient evidence to establish the proper standard of care for the installation and

maintenance of the handle that detached from the car. Additionally, Eco-Clean argues

(3) that Brown failed to present evidence that the handle was unfit for its intended

use, and the Board of Regents argues (4) that Brown presented no evidence that

2 supported a finding that the Board was liable for Brown’s injuries. In cross-appeals,

Brown contends that, if this court agrees with the defendants that Brown presented

insufficient standard of care evidence, then the trial court erred in excluding the

testimony of Brown’s expert witness.

In reviewing the denial of a motion for directed verdict, we construe the

evidence in the light most favorable to the prevailing party, and determine whether

there is “any evidence” to support the jury’s verdict. Georgia Power Co. v. Irvin, 267

Ga. 760, 762 (1) (482 SE2d 362) (1997). So viewed, the evidence at trial showed that

the Board of Regents owned the car, but ceded control and responsibility to the

“Ramblin’ Reck Club,” a chartered student organization. The club’s purpose was to

maintain and operate the car and to promote school spirit. While the club had an

assigned faculty or staff advisor, the advisor was not involved in the club’s day-to-

day activities. According to the Dean of Students, maintenance of the car was “strictly

the students’ responsibility through the driver.”

Club members annually elected a new driver, who had exclusive control over

and responsibility for the car. Students are probationary members for the first year

after they join, and gained points by participating in activities involving the car,

wearing the club shirt, and washing the car, among other things. The drivers from

3 2007, 2008, and 2009 testified during the trial. In addition to school-sponsored events

such as athletic games and parades, two of the drivers drove the car with students

standing on the running board at least once a week on public roads throughout the

campus, simply to raise school spirit. The car’s upkeep was funded by sponsors and

by renting out the car for private events such as weddings.

In 2007, the driver was pulling the Tech car on a trailer to a wedding in

Savannah on a trailer when the trailer’s brakes locked up. The driver’s vehicle and

the trailer spun 180 degrees and the trailer capsized in a ditch, totaling both the

driver’s vehicle and the Tech car. Because the car had been present at every Tech

home football game since the school acquired the car in 1961, students and alumni

were anxious to have the car repaired in time for Tech’s first game of that season,

which was 85 days away. Many people and companies volunteered their services to

fix the car, and the driver coordinated the efforts. One company repaired the

bodywork, other entities donated various small parts, and the owner of Eco-Clean’s

parent company, who was a Georgia Tech alumnus, volunteered Eco-Clean’s services

to redesign and repair the car’s interior and roof.

Eco-Clean reupholstered the car seats and added soundproofing and an interior

lining to the roof. Before the wreck, students standing on the car’s running boards

4 could hold on by grasping part of the roof’s wooden frame, but with the lining

installed, the frame was no longer visible and could not be gripped. While Eco-

Clean’s manager testified that Eco-Clean did not install the interior handles, he

admitted that the handles had been installed while the car was at Eco-Clean’s shop,

possibly by subcontractors Eco-Clean had hired to do the upholstery work. The 2009

driver, who had been closely involved in the club in 2007 when the car was repaired,

testified that Eco-Clean installed the interior handles. Eco-Clean’s owner testified that

the company generally stood behind the work that was done at its shop. The car was

repaired in time for its scheduled appearance at Tech’s first home game of the 2007

season.

Brown joined the Ramblin’ Reck Club in spring 2009 as a probationary

member, and was dedicated to earning more points than anyone else. In April 2009,

the driver, Brown, and two other club members took the car from its garage to a

fraternity house where other students examined it to see if they could effect certain

repairs. After the students examined the car, the driver began driving it back to the

garage, less than a quarter of a mile away. Brown stood on the passenger side running

board, grasping an interior handle with one hand and an exterior handle with the

other, which was how he had been instructed to hold on. The driver turned on to

5 Techwood Drive from the fraternity parking lot, drove less than a block, then turned

left onto Ferst Avenue. The driver heard two pops and saw Brown’s hand, still

grasping the handle, disappear out through the window as he fell from the running

board. Brown struck his head on the road and blacked out. When the club members

came to his aid, he was still holding the handle in his hand. The handle had been

attached with wood screws one-half to three-quarters of an inch long, and the driver

was surprised that the screws were so small.

Brown fractured his right temporal bone and was in the hospital for four days.

Blood and spinal fluid drained from his ear for weeks afterward, and he experienced

headaches, problems with his balance, dizziness, and nausea, all of which gradually

improved. He permanently lost his senses of taste and smell, as well as his hearing in

one ear, which rings constantly.

1. On appeal, both Eco-Clean and the Board of Regents argue that the trial

court erred in denying their motions for directed verdict because as a matter of law

Brown assumed the risk of falling from the car and being injured by standing on the

running board of a moving car. Thus, they contend, Brown’s assumption of the risk

bars him from any recovery.

6 The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

(Punctuation and footnotes omitted.) Muldovan v. McEachern, 271 Ga. 805, 807-808

(2) (523 SE2d 566) (1999).

In this case, Eco-Clean argues that the evidence demanded a finding that

Brown assumed the risk of injury and was thus barred from recovery. It points out

that an eyewitness testified that the car accelerated through a red light, and argues that

the car was turning “at an unusually high rate of speed” when Brown fell. Further,

Eco-Clean argues that Brown assumed the risk that the handle would fail. The Board

of Regents argues that Brown relied on an interior handle that was not intended to

support the centrifugal force of an adult man holding on while the car turned the

corner at a rate faster than it traveled at sanctioned events such as games and parades.

The defendants argue that Brown assumed the risk as a matter of law that he

might fall from the running board of a moving car just as a person who “car surfs”

7 assumes the risk of falling from the car, citing Teems v. Bates, 300 Ga. App. 70 (684

SE2d 662) (2009). However, the posture of that case was different. There, the

plaintiff was appealing a defense verdict and alleged that the trial court erred in

charging the jury on the law of assumption of risk. Id. at 77 (1). We found no error

because the defendant introduced at least slight evidence that the plaintiff had

assumed the risk of falling and being injured by lying on the back windshield of a car

and holding on to the edge of the open sunroof while the driver circled a parking lot.

Id. at 71, 77.

We have held in other cases that, because “reasonable minds might disagree as

to whether the fender of an automobile is such an obvious place of danger under all

circumstances that a person sitting thereon would be barred from recovery as a matter

of law,” the issue was “ordinarily left as a question of fact for the jury rather than as

a matter of law for the court.” Lassiter v. Poss, 85 Ga. App. 785, 787-789 (1) (b) (70

SE2d 411) (1952). Similarly, whether standing on the running board of a moving car

is such an assumption of risk that bars recovery may also be a jury question. Bramlett

v. Hulsey, 98 Ga. App. 39, 41 (1) (104 SE2d 614) (1958); Atlantic Ice & Coal Co. v.

Folds, 47 Ga. App. 832 (171 SE 581) (1933). We have held on numerous occasions

that “a person is not necessarily barred of a recovery . . . merely because of the fact

8 that the plaintiff was riding on the fender, running board, or other exposed place on

the automobile of the host driver.” Wilks v. Lingle, 112 Ga. App. 176, 177 (3) (144

SE2d 552) (1965).

In this case, upon both defendants’ requests, and over Brown’s objection, the

trial court charged the jury on assumption of risk. The charge properly instructed the

jury that a defendant asserting an assumption of the risk defense had the burden of

establishing that the plaintiff had actual knowledge of the danger, understood and

appreciated the risk, and voluntarily exposed himself to the risk, but that “assumption

of risk does not extend to assuming the negligent act of another.” See Little Rapids

Corp. v. McCamy, 218 Ga. App. 111, 113 (1) (460 SE2d 800) (1995).

The evidence presented did not demand a finding that Brown assumed the risk

of injury as a matter of law due to improper installation of the handles or negligence

of the driver. Accordingly, under the “any evidence” test, the trial court did not err

in denying the defendants’ motions for directed verdict based on their assumption of

risk defense.

2. Both Eco-Clean and the Board of Regents argue that Brown presented no

evidence establishing the standard of care to be used when installing or maintaining

9 a handle of this nature, and therefore failed to prove that the handle was negligently

installed.

The exterior handles, which were installed on either side of the back window,

were attached with bolts. Eco-Clean employees regularly installed handles in the

course of their work renovating classic cars, and Eco-Clean’s then-general manager

had experience with how to safely install handles in a car for people to hold on to.

The manager inspected the quality of handle installation by “general observation and

look[ing] at the product,” and he admitted observing the installation of the exterior

rear handles on the Tech car.1 In his opinion, those handles were installed safely for

their intended application by using bolts, which was the proper method for installing

the particular handles that he had bought. Screws would not have been a proper

method for installing those handles, he testified, because the holes were threaded for

machine bolts and screws would not have fit.

The trial court overruled Eco-Clean’s objection to asking the manager about

the difference between a bolt and a screw, concluding that a witness did not have to

be an expert to answer that question. The manager explained that normally a certain

1 Eco-Clean denied throughout the litigation that it had installed the interior handles, but does not dispute on appeal that there was some evidence at trial indicating that it had installed them.

10 type of threading requires bolts, whereas a screw is often “self-tapping,” or creates

its own threads in the material into which it is screwed. He agreed that the handles

Eco-Clean installed on the Tech car needed to be safe enough for people to hang on

to while standing on the running board, and that bolts were stronger than screws.

According to the manager, the exterior handles were installed using bolts instead of

screws because it was safer that way. The driver testified that he told the manager that

people standing on the running board needed something robust to grab on to, which

was the purpose of installing the interior handles.

Both defendants argue that this evidence was insufficient to allow the jury to

conclude that the interior handles were improperly installed. But in a similar case, this

court held that a jury “was authorized to conclude from the evidence that Southern

Bell had installed the telephone in a negligent manner, it being common knowledge

that a heavy object such as a pay telephone cannot be securely fastened to a particle

board wall by ordinary wood screws.” Southern Bell Tel. &c. v. LaRoche, 173 Ga.

App. 298, 299 (1) (325 SE2d 908) (1985). No expert opinion is required when the

issues are not “shrouded in the mystery of professional skill or knowledge.”

(Punctuation and footnote omitted.) Bailey v. Annistown Road Baptist Church, 301

Ga. App. 677, 689 (12) (689 SE2d 62) (2009). For example, “[t]he courts are required

11 to take notice of primary physical laws,” such as the fact that an automobile is made

of heavy metal and is likely to crush someone if it lands on her. McGraw v. State, 85

Ga. App. 857, 861 (2) (70 SE2d 141) (1952).

Similarly, whether ordinary wood screws one-half inch long were sufficient to

fasten a handle for someone to hold while standing on the running board of a moving

car is not an issue so shrouded in the mystery of professional skill or knowledge that

expert testimony was required for a jury to understand it. Furthermore, from the

testimony of Eco-Clean’s manager that the company installed the exterior handles

with bolts instead of screws because it was safer and was the proper method of

installation, the jury was authorized to infer that bolts would likewise have been the

safe and proper means for fastening the interior handles. Accordingly, the trial court

did not err in denying the defendants’ motions for directed verdict on this ground.

3. Eco-Clean argues that Brown failed to present sufficient evidence that the

interior handle was unfit for its intended use. Basically, the company argues that it

was not negligent because Brown was using the handle in a way that was not

foreseeable and Brown introduced no evidence that Eco-Clean knew or should have

known that the interior handle would be used by a person standing on the running

12 board “to anchor themselves during sharp turns at road-travel speed during an

unlawful ride on the public streets.”

The argument that Brown failed to introduce evidence of the handle’s intended

use or that the handle was improperly designed and installed echoes the assumption

of risk arguments addressed in Division 1. While Eco-Clean asserts that the 2007

driver acknowledged he did not inform Eco-Clean about the handle’s intended use,

the question was whether the driver told Eco-Clean that the handles would be used

by people standing on the running board when the car was being driven on public

streets rather than during football games or parades. The driver testified subsequently

that he discussed with Eco-Clean’s manager that the car needed handles to give

people standing on the running board “something more robust to grab onto.”

Considering that the standard for appellate review of a directed verdict is the

“any evidence” test, Southern General v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274)

(1992), and construing the evidence in Brown’s favor, we find no error in the trial

court’s denial of Eco-Clean’s motion for a directed verdict on liability.

4. The Board of Regents argues that the trial court erred in dismissing its

motion for a directed verdict because “Brown presented no evidence upon which a

jury could have found [it] liable.” In arguing that it should not be held responsible for

13 “bad decisions made by its students,” the Board of Regents essentially contends that

(a) Brown introduced no evidence that the Board knew or should have anticipated

that students would ride on the outside of the car on a public street at times other than

during a parade or school function, (b) even if the Board knew or should have known

that the students rode on the outside of the car on public streets other than during

parades or school functions, there was no evidence that the Board knew or should

have anticipated that the interior handles had been installed defectively, and (c) the

Board had no duty to protect Brown from engaging in the inherently dangerous

unauthorized activity of riding on the outside of the car on public streets at times

other than parades or school functions.

Brown responds that the evidence was sufficient to affirm the verdict under

several different grounds of liability. The Board of Regents conceded that the driver

was acting as an agent of the State in maintaining the car, and because some evidence

supports a finding of liability against the Board of Regents on respondeat superior

grounds, we need not address any other grounds.

After the trial court entered a consolidated pre-trial order, the parties deposed

an eyewitness to the incident who testified that the driver of the Georgia Tech car

sped up and ran a red light before making the turn where Brown fell off. Based on

14 this witness’s testimony, over the Board’s objection, the trial court granted Brown

leave to amend his complaint to allege that the Board of Regents was vicariously

liable for any negligent acts or omissions of the driver. In his amended complaint,

Brown alleged that “Defendant Board of Regents is vicariously liable for the acts of

its employees and agents, including but not limited to officers and members of the

Ramblin’ Reck Club who oversaw the maintenance and repair of the Ramblin’ Reck

or who drove the Ramblin’ Reck at the time of the incident.”

Eco-Clean presented the video deposition of the eyewitness at trial, and argued

that if the jury decided that Brown fell from the car because the driver ran a red light

and took the turn at an excessive speed, then the Board of Regents was liable for

Brown’s damages rather than Eco-Clean. During the charge conference, the Board of

Regents agreed that the driver was on official club business – maintaining the car

owned by the Board – when Brown was injured. The driver was therefore a state

agent under the Tort Claims Act, OCGA § 50-21-22 (7), and sovereign immunity was

waived for any torts committed by the driver, per OCGA § 50-21-23 (a). The trial

court thoroughly charged the jury on the law of principal and agent generally and on

respondeat superior. The court also charged that the Board had exclusive authority,

control, and management over state university property, and that the Board could be

15 held liable for the torts of its agents committed within the scope of their agency. The

Board of Regents did not object to the trial court’s charge to the jury on these issues.

Because some evidence introduced at the trial authorized the jury to determine

that the Board of Regents was liable under an agency theory for the negligence of the

driver, the trial court did not err in denying the Board of Regents’ motion for a

directed verdict of liability. We therefore discern no basis for reversal.

Judgment affirmed. Miller and Ray, JJ., concur.