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Smith v. Found

Court of Appeals of Georgia, Second Division

October 26, 2017

SMITH
v.
FOUND et al. FOUND et al.
v.
SMITH.

          MILLER, P. J., DOYLE and REESE, JJ.

          Doyle, Judge.

         Jose Santiago Espinoza, also known as Jose Ornelas (hereinafter "Ornelas"), a farm employee, died when he was pinned under a tractor tire while trying to remove it. Ornelas's wife, Alda Jean Found (hereinafter, "the plaintiff"), individually and as administratrix of Ornelas's estate, filed a negligence action against Mike Smith ("Mike"), who owned the farm that employed Ornelas, and John Smith, Jr. ("John"), Mike's son who owned a separate farm at the same location.[1] The parties filed cross-motions for summary judgment, and following a hearing, the trial court entered an order: denying the plaintiff's motion for partial summary judgment; granting John's motion for summary judgment; and denying Mike's motion for summary judgment. In Case No. A17A1312, Mike appeals the denial of his motion for summary judgment; in Case No. A17A1313, the plaintiff appeals the grant of summary judgment to John. For the reasons that follow, we reverse in Case No. A17A1312, and we affirm in Case No. A17A1313.

         "'On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.'"[2]

         So viewed, the record shows that Mike's farm was located in Broxton, Georgia. Two other entities farmed at the same location: John, individually, and John Smith Farms, LLC. Although the three entities shared equipment and were located on the same property, they were legally separate. Mike hired Ornelas in the early 1990s, trained him, and controlled the time, manner, and method of his work; he did, however, give John the authority to supervise and direct Ornelas. Neither John nor John Smith Farms, LLC, employed Ornelas or had authority to hire or fire him.

         On November 14, 2013, John gave Ornelas several tasks, including instructing him to remove dual wheels from a 4560 John Deere tractor. John did not tell Ornelas to complete the job by a specific time, but he did instruct him specifically not to remove the wheels by himself.

         Winton Highsmith, John's father-in-law, who was not employed by Mike, was present when Ornelas started removing the wheels. Highsmith was looking after his granddaughter that morning and was at the barn with her at a swing set. Highsmith and his granddaughter left to drive around the blueberry patch, but before they left, Highsmith told Ornelas to leave the tractor alone and that he would return in a "little bit." When he returned, however, Ornelas had already removed the left tire and wheel without incident using a forklift and other tools.

         Ornelas then picked up the right side of the tractor with an air jack and attempted to remove the right wheel, but it would not come off. He also attempted several other methods to remove the wheel, including using the fork lift to bump the tire, hooking a chain to it and pulling, putting the air jack between the rims of the wheels, and driving the tractor around until the wheel feel off. According to Highsmith, Ornelas worked on the project for approximately three and a half to four hours. Eventually, at Ornelas's request, Highsmith brought him a hydraulic jack owned by Highsmith. Highsmith then left to help his daughter with a task at her house approximately a half mile away, first telling Ornelas, "[B]e careful, I'll be right back. Give me a minute." When Highsmith returned approximately 18 minutes later, he found Ornelas on the ground under the tire, dead.

         The plaintiff sued Mike and John, claiming they were negligent by (1) providing Ornelas with defective equipment and tools; (2) failing to provide Ornelas with a safe work environment, (3) failing to train Ornelas on the proper way to remove dual wheels, and (4) failing to inspect and maintain the equipment. The parties filed cross-motions for summary judgment. Following a hearing, the trial court: denied the plaintiff's motion for partial summary judgment; granted summary judgment to John; and denied Mike's motion for summary judgment. The order was brief and offered no basis for the ruling other than concluding that there was no genuine issue of material fact as to John's summary judgment motion. The trial court certified its decision for immediate review, and this Court granted Mike's application for interlocutory appeal.

         Case No. A17A1312

          1. Mike contends the trial court erred by denying his motion for summary judgment because there was no proof of negligence and because Ornelas's knowledge of any alleged defect or hazard in the tire and tools was equal or superior to his.

         (a) Negligence based upon violations of applicable regulations.

         "To recover for injuries caused by another's negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages."[3] "Negligence is not to be presumed, but is a matter for affirmative proof. In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence."[4]

         The plaintiff contends that Mike was negligent by violating several regulations of the United States Occupational Safety & Health Act of 1970[5] ("OSHA") and that such violations are evidence of a breach of duty.[6] Pretermitting whether Mike was subject to OSHA regulations and/or whether he violated ...


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