GUTIERREZ et al.
MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
MCFADDEN, PRESIDING JUDGE.
and wife Jose A. Gutierrez and Selene Perez appeal from the
grant of summary judgment to Hilti, Inc. in their
consolidated actions for Gutierrez's personal injury and
Perez's loss of consortium. They allege in their actions
that they were harmed by Hilti's negligence in selling,
through one of its retail outlets, a concrete anchor without
either the instructions or the setting tool necessary for its
proper installation. They allege that, as a result, the
anchor was improperly installed and failed, causing a
workplace accident in which Gutierrez was injured. Hilti
moved for summary judgment, arguing among other things that
there was no evidence showing the required elements of duty
and causation, and the trial court granted the motion.
Because the record evidence gives rise to genuine issues of
material fact on both elements, we reverse.
Facts and procedural history.
judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law[.]" OCGA
§ 9-11-56 (c). "We review a grant of summary
judgment de novo, construing the evidence in the light most
favorable to the nonmovants and drawing every reasonable
inference in their favor." Patterson v. Kevon,
LLC, 304 Ga. 232, 236 (818 S.E.2d 575) (2018) (citation
omitted). Gutierrez and Perez argue, and we agree, that at
times the trial court did not construe contested facts in
this light in her order. The recitation of facts below
reflects our de novo review of the evidence in this case,
viewed most favorably and giving every reasonable inference
to the nonmovants, Gutierrez and Perez.
viewed, the evidence shows that on November 11, 2012,
Gutierrez was performing electrical work on the site of a
construction project. He was standing on a 12-foot A-frame
ladder. A foot away from him, an air handler (a component of
an air conditioning, or HVAC, system weighing at least eighty
pounds) was suspended from the concrete ceiling by
eight-foot-long rods that were set into the concrete. One of
the rods dislodged from the ceiling, causing the air handler
to fall toward the floor. Nearly simultaneously, Gutierrez
was struck in the face, he believes by something that had
been holding up the air handler. This caused him to lose his
balance and fall at least ten feet from the ladder to the
floor. He sustained significant injuries, which negatively
affected his relationship with Perez.
handler had been installed one or two days before the
accident using Hilti-branded concrete anchors purchased at a
Hilti retail store. The general contractor on the construction
project required all subcontractors to use a specific Hilti
anchor. The subcontractor responsible for installing the HVAC
system (hereinafter, the "HVAC subcontractor")
provided information about the required anchor to Greg Smith,
an independent contractor hired by the HVAC subcontractor to
perform that work. Smith took the model number of the anchor
to the Hilti store, which sold him a box of the anchors and a
special tool for installing the anchors in the concrete
ceiling (hereinafter, the "setting tool").
proper procedure for installing the anchors is as follows:
The installer drills a hole to a specified depth, cleans out
the hole, inserts the anchor and the setting tool into it,
and then hammers in the setting tool, causing the tip of the
anchor to expand into the concrete. The installer then
removes the setting tool and screws a rod into the anchor.
The appropriate setting tool for the anchors used in this
case has "dimples" that create indentations in the
flange of an anchor to provide visual confirmation that the
setting tool has been hammered far enough into the flange to
expand the anchor into the concrete. The instructions that
are supposed to accompany the anchors explain this process.
They state: "Setting tool leaves mark on flange when
anchor is set properly to enable inspection and verification
of proper expansion."
Hilti store sold Smith a box of anchors that did not include
those instructions and Smith did not see the instructions
before his workers, under his supervision, installed the
anchors for the air handler. Instead, Smith consulted
instructions that he found on the internet. He did not see,
on those instructions, information about using marks from the
setting tool to obtain visual confirmation that an anchor was
properly installed. Smith did not know to look for marks on
the flanges of the anchors as he supervised his workers'
installation of them.
the Hilti store did not sell Smith the correct setting tool
to use with the anchors. The setting tool that Smith bought
for his workers to use did not have "dimples" and
did not create marks that would allow Smith to confirm that
the anchors had been properly installed. So although Smith
visually inspected each installed anchor, none of the anchors
he inspected had the marks described in the instructions.
This incorrect setting tool was the only tool the Hilti store
offered to Smith in conjunction with his purchase of the
Gutierrez's accident, both Smith and the HVAC
subcontractor separately went to the Hilti store and asked
for the setting tool appropriate for the specific anchors
used in the construction project. On both occasions, the
Hilti store offered them the incorrect setting tool. Also
after the accident, the general contractor required all
subcontractors to check the anchors they installed for the
marks described in the instructions. Numerous anchors did not
display those marks, and the general contractor required that
they be reinstalled using the correct setting tool. The
concrete itself was not replaced.
sued Hilti, among other defendants, for negligence and breach
of warranty. Perez sued Hilti for loss of consortium based on
Hilti's alleged negligence. The trial court granted
summary judgment to Hilti on all of these claims. On appeal,
Gutierrez and Perez do not make any arguments pertaining to
breach of warranty, so they have abandoned any claim that
summary judgment as to breach of warranty was improper. See
Ga.Ct.App. R. 25 (c) (2) ("Any enumeration of error that
is not supported in the brief by citation of authority or
argument may be deemed abandoned.").
Breach of duty.
argues that it is entitled to summary judgment because, as a
matter of law, it breached no duty of care ...