Cash from Corn: Plaintiff Injured at Corn Harvesting Facility Advances to Trial

The Eleventh Circuit reversed the district court’s grant of summary judgment to the employer of a forklift driver who injured a truck driver picking up a shipment of corn in Newcomb v. Spring Creek Cooler Inc., 2019 WL 2364498 (11th Cir. June 5, 2019).

Because the plaintiff picking up a load of corn at the defendant’s facility was responsible for the count and condition of the load, he stood on the loading dock near the trailer so that he could take the corn’s temperature as it was being loaded. Over the course of an hour, the harvester’s employee drove the forklift to transfer corn pallets from a cooler into the plaintiff’s truck two pallets at a time, all while the plaintiff stood to the right of the trailer. On the fifth trip, the forklift driver did not straighten out the forklift as he had the first four times, and the crates collided with the plaintiff, who suffered a fractured skull and a brain fluid leak.

The plaintiff sued the corn harvester for negligence, asserting claims under the theories of both respondeat superior and premises liability. Under Georgia law, such theories involve different duties owed to the plaintiff. The premises liability theory limited the scope of the inquiry to whether the district court correctly determined that the plaintiff had knowledge at least equal to that of the employer. But the Eleventh Circuit viewed the instance, instead, as one of ordinary negligence that happened to have taken place on the defendant’s premises. The court cited a Georgia Supreme Court case to bring home this distinction, noting the anomaly of saying “that an employee of [the defendant] would be responsible for acts of negligence occurring off the [defendant’s] premises but not responsible for acts of negligence occurring on the premises because the person harmed is not an invitee. . . . Such an argument makes no more sense than maintaining that [the defendant], which would be responsible if an individual were negligently run over by one of its trucks on the interstate, would escape liability for injuries to an individual who was negligently hit by one of its trucks in its own parking lot.” (quoting Lipham v. Federated Dep’t Stores, Inc., 440 S.E.2d 193, 194–95 (Ga. 1994)).

In an opinion by Judge Marcus, the Eleventh Circuit found it “abundantly clear” that the same applied in its present case. A claim does not necessarily fall under the rubric of premises liability just because it involves a plaintiff suing the owner or occupier of the land where the injury occurred. The plaintiff alleged that the forklift driver failed to maintain a proper lookout, drove in a reckless manner, and violated industry standards by driving forward with an obstructed view instead of in reverse. These were allegations of active negligence, not of a preexisting hazard on the premises.

The court also concluded pedagogically that the employer was not entitled to summary judgment on the assumption-of-risk defense. The court could not conclude that the plaintiff voluntarily exposed himself to the risk of being injured by the forklift or that he made a deliberate choice to pursue an obviously perilous course of conduct—he claimed he was injured because of the forklift operator’s negligence, and one simply cannot assume the risk of another’s negligence. The plaintiff did not assume the risk by standing in the same general position on the loading dock that he previously occupied when the forklift driver safely transported the corn to the truck. The court cited Prosser & Keeton’s paradigm of a pedestrian crossing the street in the middle of the block of cars traveling at excessive speeds: this is contributory negligence, but not assumption of the risk, because he has not consented to relieve the defendant of a duty to act with reasonable care. By standing on the loading dock, the plaintiff exposed himself to some risk of harm—and may even have been negligent—but did not assume the risk under a summary judgment standard.

Posted by Keith Emanuel.

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