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Assumption of the Risk is No Defense If You Would Get Fired for Not Taking the Risk

One of the common defenses that insurance companies raise in slip and fall and other premises liability cases in Georgia is the claim that the injured person assumed the risk of the injury.

The defense is a legal and common sense one.  After all, who can complain if they knew the risks and took them? The following Court of Appeals case takes an interesting fact pattern and asks: “What happens if the person would have been fired if they had not taken the risk?” This is something akin to the necessity shield for prior traverse cases. The Court analyzed the facts and found that the firing threat was tantamount being under duress.

The Georgia Court of Appeals recently revived Travis v. Quiktrip Corp., a premises liability action brought against a gas station and its manager by a gasoline tanker driver who was struck by a vehicle while filing the station.

The accident at issue in this appeal occurred on July 12, 2011. The plaintiff, a gasoline tanker driver employed by Petroleum Transport Company, arrived at a QuikTrip corporate gas station to make a delivery. The driver parked the tanker at the spot designated for delivering gas, placed down three orange cones, and proceeded inside the station to input information about the delivery. After receiving an initial printout, the driver returned outside to measure the station’s underground tank levels. This station was a “remote drop location,” which means the location for delivery of gasoline to the underground tanks was positioned to the left of the store building, while the caps that allowed access for measuring the tank levels were in another location near the parking spaces immediately in front of the store and to the left of the store entrance (the “Tank Area”). While measuring the levels, the driver took one of the cones from around the tanker, and after taking the initial measurement, he returned the cone to its position near the tanker while he filled the station. After the filling was complete, the driver returned to the Tank Area to take a post-filling measurement. Again, he took the cone with him and positioned it in the areas where he was taking the measurements. During the measuring process, he dropped one of the tank caps. The driver got on his hands and knees to retrieve the cap, and he was struck by a car that backed into him.

During meetings with Petroleum Transport Company and QuikTrip personnel that took place prior to this accident, the driver and his coworkers had expressed concerns about remote drop locations like the station at issue here and reported “close calls” with cars while making deliveries at such sites because the measuring location was in the flow of traffic.

In addition, the driver claimed he gave notice that the current process of receiving computer printouts as well as double-checking the tanks manually was redundant because the manual test simply replicated the computerized results. Nevertheless, QuikTrip policy at the time of the accident required manual tank checks, and the driver reported that other drivers had been fired for not complying with this policy.

Following the accident, the driver brought suit against the driver of the vehicle that struck him as well as QuikTrip and the manager of the QuikTrip station. With respect to the latter two defendants, the plaintiff asserted claims for premises liability, negligent hiring, and negligent supervision. The plaintiff ultimately settled his claims against the other driver, but following discovery, the remaining defendants moved for summary judgment. The trial court ultimately granted summary judgment to these defendants, finding that the plaintiff’s claims failed because he had equal or superior knowledge of the purported hazard leading to the collision, and the purported hazard was of an open and obvious variety that was well known to the plaintiff and his coworkers. Following the trial court’s dismissal of his claims, the plaintiff brought the current appeal.

Fortunately for the driver, the Georgia Court of Appeals found that the trial court had erred in granting summary judgment and reversed. First, although the Court of Appeals agreed that the plaintiff had equal knowledge of the hazard, it found that equal knowledge was insufficient to bar recovery in this case. Indeed, equal knowledge only precludes recovery when “[e]xposure to the known risk [is] voluntary, the result of a deliberate choice.” Bass Custom Landscapes, Inc. v. Cunard, 258 Ga. App. 617, 620 (2002). In this case, the evidence showed that the plaintiff did not voluntarily expose himself to the risk but instead only did so because he needed to comply with QuikTrip policy. Although the plaintiff may not have been directly subject to dismissal by QuikTrip, the fact that he would likely be fired by his immediate employer if he failed to comply with QuikTrip’s policy created sufficient coercion. See, e.g., York v. Winn-Dixie Atlanta, Inc., 217 Ga. App. 839, 841 (1995) (“Coercion which prevents the application of the assumption of risk defense need not come solely from the defendant.”). The evidence of coercion, therefore, created an issue of fact regarding the plaintiff’s assumption of risk. See, e.g., id. at 841 (holding that a delivery person’s “Hobson’s choice of [navigating] a slippery high platform forced on him by the customer/defendant or [returning to] his employer with the undelivered fish” precluded finding that, as a matter of law, the delivery person assumed the risk of traversing the platform).

In addition, the Court of Appeals summarily rejected the defendants’ alternative argument that they were entitled to summary judgment pursuant to O.C.G.A. § 51-3-1, which in pertinent part prevents recovery by “workers hired to perform work [that either] makes a place that is known to be dangerous, safe, or [  ] work that in its progress necessarily changes the .  . . safety of the place in which it is performed as the work progresses.” Elsberry v. Ivey, 209 Ga. App. 620, 621 (1993). Although  “an employee . . . assumes all the usual and ordinary hazards of his business and is bound to use skill and diligence to protect himself,” Long Leaf Indus., Inc. v. Mitchell, 252 Ga. App. 343, 344 (2001), the Court of Appeals reasoned that the hazardous conditions at issue, in this case, were not inherent to the task of delivering gas but instead created and controlled by the defendants through the design of their stations and the application of a particular policy for the delivery of gasoline.  Accordingly, the defendants could not rely on the § 51-3-1 defense.

Although this driver will now get his day in court, many negligence claims never make it to trial.  Negligence claims of all types are subject to a multitude of exceptions and often turn on very fact-specific inquiries. Indeed, if you have a viable negligence claim, you should consider finding counsel experienced in the finer points of Georgia law. The Atlanta premises liability attorneys at Christopher Simon Attorney at Law have represented many injured Georgia residents, and they are ready to provide assistance with a possible claim. If you’ve recently been harmed by the possible negligence of another party and are curious about your legal options, feel free to contact us and schedule a complimentary case evaluation.

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visit us 2860 Piedmont Rd NE #210
Atlanta, GA 30305