Taylor v. McGraw

760 S.E.2d 657, 327 Ga. App. 654, 2014 WL 2766731, 2014 Ga. App. LEXIS 399
CourtCourt of Appeals of Georgia
DecidedJune 19, 2014
DocketA14A0453
StatusPublished

This text of 760 S.E.2d 657 (Taylor v. McGraw) 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
Taylor v. McGraw, 760 S.E.2d 657, 327 Ga. App. 654, 2014 WL 2766731, 2014 Ga. App. LEXIS 399 (Ga. Ct. App. 2014).

Opinion

ANDREWS, Presiding Judge.

Garrett McGraw, the 13-year-old child of Kimberly Ann McGraw, suffered serious burn injuries from a fire at a marshmallow roast at the residence of Randy and Kristy Taylor. Acting individually and as next friend of her minor child, McGraw sued the Taylors alleging that one of the Taylors’ minor children threw sawdust on the fire which caused the fire to explode or flare up and burn Garrett. McGraw contends that the Taylors caused Garrett’s injuries by negligently providing their minor child with unsupervised access to the fire and the combustible sawdust. We granted the Taylors’ application for an interlocutory appeal from the trial court’s denial of their motion for summary judgment. For the following reasons, we find that the Taylors were entitled to summary judgment and reverse.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrantjudgmentasamatteroflaw. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). Construed in favor of McGraw, the evidence showed the following: Garrett, accompanied by his step-grandfather, was invited by the Taylors to their residence for a marshmallow roast in their back yard. Marshmallows were roasted over a wood fire in a 55-gallon metal barrel. The barrel was situated equidistant between two sheds, about five feet from each shed. A pile of sawdust was located at the back of one of the sheds about ten feet from the barrel. According to Garrett, after he and two of the Taylors’ children had been roasting marshmallows for about ten minutes, Mr. Taylor told “one of his kids to get a handful of the dust and put it in the fire and for us to stand back.” Garrett said that, when the Taylor child put the sawdust in the fire, “it kind of exploded” and caused “a flareup.” At that point, Mr. Taylor and Garrett’s step-grandfather went inside the Taylor residence, leaving Garrett and two of the Taylor children outside alone with the fire and the sawdust. Garrett said that he then watched as the Taylor children repeatedly threw sawdust in the fire, and that he threw sawdust in the fire “once or twice.”

Garrett was questioned at his deposition as to how he was burned by the fire.

Q: So, tell me about how you got burned.
A: Well, after they started throwing little bits of handfuls of it into the fire, they went inside the shed and there’s a [655]*655window right there at the [barrel], and they were . . . grabbing big—like big handfuls of it and throwing it out the window into the fire.
Q: Okay, they were inside the shed?
A: Uh-huh.
Q: Did you ever go inside the shed?
A: Yes.
Q: Did you go inside with them while they were doing this?
A: Yes.
Q: Did you ever pick up any of these big handfuls and do that also?
A: No.
Q: So tell me how you got burned.
A: Well, after — they just kept on doing that for a while, and I just basically stood there at the fire and just watched it, and I wasn’t really paying attention, and for just a while, I was doing that. Then I heard [one' of the Taylor children] yell, “Watch out,” and it was when a big pile of it came out the window and then the fire exploded in my face.
Q: How close to the fire were you at that point... [h]ow close were you to the [barrel]?
A: Probably about as far as the length from here to there.
Q: Like the distance across this table?
A: Yes.
Q: A couple of feet?
A: Yes.
Q: How long had you been standing there while they were throwing things out the window? Had you been there for a while? Had you been there at all while they were throwing the stuff out the window into the fire?
A: Yes, I was there.
Q: Each time it was flaring up?
A: Yes.
Q: And so I guess this time it was just an extra large heapful that got thrown out?
A: Yes.

Garrett testified that he knew fire would burn him. One of the Taylor children also testified in his deposition that, after the adults went inside the residence, he, along with his brother and Garrett, threw sawdust in the fire, which “made the fire shoot up,” and that Garrett was burned because “he was too close to the fire and the fire shot up and it got on him.”

[656]*656McGraw concedes that the gravamen of her complaint was that the Taylors caused Garrett’s burn injuries by negligently allowing their minor children unsupervised control of the dangerous combination of the fire in the barrel and the combustible sawdust. In support of this claim, McGraw pointed to evidence that Mr. Taylor showed the children how to use the sawdust to flare up or explode the fire contained in the barrel, and that, immediately after doing so, the Taylors allowed their children to have unsupervised control over these dangerous substances. Under these facts, McGraw contends that a duty was imposed on the Taylors to anticipate injury to another through their children’s misuse of the dangerous substances in the manner they had just been shown. See Corley v. Lewless, 227 Ga. 745, 748 (182 SE2d 766) (1971); Jackson v. Moore, 190 Ga. App. 329, 329 (378 SE2d 726) (1989). We find that, even if a jury could reasonably conclude that the Taylors were negligent on this basis, their negligence was not a proximate cause of the injuries suffered by Garrett. Rather, the undisputed facts show as a matter of law that Garrett assumed the risk of being burned when sawdust was thrown into the fire.

Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.

Sayed v. Azizullah, 238 Ga. App. 642, 644 (519 SE2d 732) (1999) (citation and punctuation omitted).

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.

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Related

Sayed v. Azizullah
519 S.E.2d 732 (Court of Appeals of Georgia, 1999)
Lau's Corp., Inc. v. Haskins
405 S.E.2d 474 (Supreme Court of Georgia, 1991)
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520 S.E.2d 752 (Court of Appeals of Georgia, 1999)
Riley v. Brasunas
438 S.E.2d 113 (Court of Appeals of Georgia, 1993)
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Garner v. RITE AID OF GEORGIA, INC.
595 S.E.2d 582 (Court of Appeals of Georgia, 2004)
Goodman v. City of Smyrna
497 S.E.2d 372 (Court of Appeals of Georgia, 1998)
Corley v. Lewless
182 S.E.2d 766 (Supreme Court of Georgia, 1971)
Jackson v. Young
187 S.E.2d 564 (Court of Appeals of Georgia, 1972)
Jackson v. Moore
378 S.E.2d 726 (Court of Appeals of Georgia, 1989)
Muldovan v. McEachern
523 S.E.2d 566 (Supreme Court of Georgia, 1999)
Kensington Place Owners Ass'n v. Thomas
734 S.E.2d 445 (Court of Appeals of Georgia, 2012)

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Bluebook (online)
760 S.E.2d 657, 327 Ga. App. 654, 2014 WL 2766731, 2014 Ga. App. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-mcgraw-gactapp-2014.