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Gutierrez v. Hilti, Inc.

Court of Appeals of Georgia, Fifth Division

March 12, 2019

GUTIERREZ et al.
v.
HILTI, INC.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          MCFADDEN, PRESIDING JUDGE.

         Husband 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.

         1. Facts and procedural history.

         Summary 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.

         So 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.

         The air handler had been installed one or two days before the accident using Hilti-branded concrete anchors purchased at a Hilti retail store.[1] 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").

         The 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."

         The 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.

         Moreover, 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 anchors.

         After 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.

         Gutierrez 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.").

         2. Breach of duty.

         Hilti argues that it is entitled to summary judgment because, as a matter of law, it breached no duty of care ...


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