Union Camp Corp. v. Dukes

456 S.E.2d 645, 217 Ga. App. 95, 95 Fulton County D. Rep. 1175, 1995 Ga. App. LEXIS 353

• Court: Court of Appeals of Georgia
• Decided: March 15, 1995
• Docket: A94A2062
• Status: Published

Opinions

Johnson, Judge.

Randy Dukes brought this action against Union Camp Corporation after he allegedly slipped and fell in a puddle of oil while doing contracting work at Union Camp. Union Camp moved for summary judgment, which the trial court denied. We granted Union Camp’s application for interlocutory appeal.

Union Camp contends that the trial court erred in denying its motion for summary judgment because it proved: (a) that it had neither actual nor constructive knowledge of the presence of oil on the floor; (b) that no such puddle could have existed; and (c) that Dukes had superior knowledge of the alleged hazard but failed to exercise ordinary care for his own safety. Viewed in a light most favorable to the respondent in a motion for summary judgment, the evidence shows that Randy Dukes was employed by Great Barrier, a subcontractor of Union Camp. Dukes worked at a Union Camp facility insulating pipes inside a paper machine. Dukes wore rubber-soled boots while working. According to Robert Jones, Union Camp’s employee who serves as the assistant superintendent of the paper machine, 15,000 gallons of oil circulate through the machine each day. The paper machine also generates a tremendous amount of steam, resulting in the formation of water puddles on the machine floor. Dukes arrived at the Union Camp site for work at 7:00 a.m. Immediately after receiving his assignment from his foreman, while proceeding to his work area, Dukes noticed a puddle on the floor which he believed to be water. He walked through it and fell. While on the floor, Dukes felt the substance and determined that it was oil rather than water. Dukes did not see any other oil in the area and did not know where the oil came from, but noted that the puddle was located next to an oil pump. While Dukes initially described the oil as light blue in color, he later stated that he could not recall the specific color of the oil. Another Great Barrier employee, William Oliver, was working in the same area on the day of the accident and at approximately 8:00 a.m. noticed an amber-colored oil on the floor. Oliver stated that it was difficult to discern the color and to distinguish the oil from the puddles of water because the floor was dark and dirty. Oliver also noticed Union Camp employees in the area applying “oil dry” to absorb oil in some areas of the floor. (The record is silent as to whether Dukes noticed oil-dry on the day in question or on any other day.) According to Oliver, there was also a problem with oil leaks in the machine the week prior to the accident. Dukes had not worked inside the machine for several weeks prior to the fall. Union Camp presented evidence that a Union Camp employee inspected the area within approximately 15 minutes of the fall but did not detect or report any oil leaks or other dangerous conditions. Union Camp also introduced evidence that it does not use blue oil in its paper production.

To prevail on a motion for summary judgment, the defendant as movant has the burden of proof and must establish the absence of superior knowledge, with all doubts and conflicts in the evidence being resolved in favor of the plaintiff. Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Union Camp bases its claim that it lacked superior knowledge on evidence that Dukes saw the puddle and chose to walk through it, that there was no problem with oil leaks in the machine, and that Union Camp inspected but found no oil leaks on the day in question.

First, we examine the question of whether Dukes had knowledge of the hazard and whether he assumed the risk of injury by walking through the puddle. It is clear that Dukes noticed a puddle in his path and so had knowledge of some type of potential danger. However, “(m)ere knowledge of the danger of doing a certain act, without a full appreciation of the risk involved, is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. It is still in most cases a question of fact whether, taking into account all the circumstances, including the knowledge and appreciation as well as every other material condition, the plaintiff is guilty of such negligence as to preclude recovery.” (Citation and punctuation omitted.) Stouffer Corp. v. Henkel, 170 Ga. App. 383, 384 (1) (317 SE2d 222) (1984); see Wade v. Mitchell, 206 Ga. App. 265, 270 (4) (b) (424 SE2d 810) (1992). Dukes did not realize until after he fell that the puddle contained oil. Walking into a puddle of water while wearing rubber-soled work boots may not present the same danger as walking into a puddle of oil. Dukes has alleged a particular hazard, in excess to that normally caused by water on the floor of the job site. A jury could conclude that the alleged hazard of oil on the floor was greater than the general hazard of water on the floor perceived by Dukes. See Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348) (1991).

Furthermore, “[t]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.” (Citations, punctuation and emphasis omitted.) Moore v. Svc. Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480) (1991). We cannot decide as a matter of law that Dukes had either a full appreciation of the danger involved or that his freedom of choice was unrestricted. Walking through what appears to be a puddle of water while wearing rubber-soled work boots is not obviously perilous. In addition, any construction worker has a certain amount of his freedom of choice restricted by the circumstances under which he works and the coercion of seeking to remain employed. Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 703 (1) (289 SE2d 807) (1982). Dukes testified that there were puddles “all over the place,” and that walking around the puddle would have prevented him from being able to reach the pipes he was responsible for insulating. Dukes also stated that walking around the puddle would have been impossible given the structure of the building, and would have been in direct contravention of his supervisor’s orders not to walk in certain areas of the machine. The question of whether there was a safer route than the one taken by Dukes is one for the jury. See Kitchens, supra. “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question.” (Citations and punctuation omitted.) Wade, supra. The issue of Dukes’ knowledge of the hazard is not so plain and indisputable that it may be decided as a matter of law.

Secondly, we examine whether Union Camp presented sufficient evidence to show it had neither actual nor superior constructive knowledge of the alleged hazard. Although Union Camp presented testimony that it had no ongoing oil leak problems in the machine, an assistant superintendent at Union Camp testified that its employees are trained to look for oil spills on the floor and to apply “oil dry” immediately. When presented with a photograph of the machine, Union Camp’s witness verified the presence of “oil dry” on the floor. Dukes’ co-worker testified that he noticed oil on the floor the morning of the accident and observed Union Camp employees in the area. He also noticed that oil dry had already been applied in some areas. This evidence presented a jury question on the issue of Union Camp’s knowledge of the dangerous condition. See Geiger v. Brooks Super Market No. 4, 119 Ga. App. 57 (166 SE2d 580) (1969). The trial court did not err in denying Union Camp’s motion for summary judgment.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Blackburn and Smith, JJ., concur. Ruffin, J., concurs specially. Pope, P. J., and Andrews, J., dissent.