Bowen v. Cochran

dissenting.

I respectfully dissent, because neither the pleadings nor any evidence properly raises or supports the affirmative defense of assumption of the risk; therefore, it was error for the trial court to deny the motion for directed verdict and to charge on assumption of the risk over timely objection.

Cochran verbally instructed Bowen that to light the propane gas cooker the gas is turned on and the source of ignition is inserted through the opening of the sliding door to the burner, and that, when lighted, the needle valve is adjusted; if the cooker flame goes out, then the propane gas valve is shut off; the lid is opened and closed several times to force the collected gas out, because it is heavier than air; the gas is allowed to dissipate for five minutes; the gas valve is again opened; and the source of ignition is again touched to the burner until it lights. Bowen testified that he lit the cooker; that he left it burning; that he was gone about 30 minutes; and that on his return he found that the burner flame was out.

So I raised the lid [,] cut the gas off at the tank[,] and cut the needle valve off. ... I was waiting for a few minutes to be sure that you didn’t smell any more gas. And, of course, I left the lid up also. ... I first got me some paper, rolled it up real tight, lit the end of it, laid it back onto the burner [,] . . . opened the gas valve, and then opened the needle valve. I could hear the gas . . . then it did not light. . . . So I immediately turned the gas off again, turned the needle valve off again because,. . . trying to be very cautious as far as lighting this particular type of cooker. So I waited a few more minutes, got me another piece of paper, rolled it up, lit it, did the same process, leaning down laying the paper on the pipe, stick my arm way up in there, got it laying on the burner again, opened the gas valve at the tank and then opened the needle valve. Well, when I opened the needle valve, of course, you hear the gas spewing. It didn’t light. Well, I laid — eased down, started trying to look up in there to see where the flame was, and I could see the flame on the paper. Then all of a sudden this big ball of fire came at me, knocked me down.

*461Except for the use of a lighted paper laid on the burner so that his hand was not in the cooker with a trigger lighter flame, this was how Cochran instructed Bowen that lighting and relighting was to be done. In point of fact, to use a trigger lighter flame by putting a hand inside the cooker after the gas was turned on, instead of placing a burning paper on the burner and turning on the gas, was more dangerous. Thus, there was no evidence in the record to raise the issue of an assumption of the risk affirmative defense.

Obviously in this case, the gas buildup near the burner was ventilated sufficiently so that three attempts to relight the cooker with a flaming taper neither immediately lit the burner nor caused an instantaneous explosion upon the burning paper being placed in the opening, no less on the burner. If the cooker had not been ventilated, then the introduction of a trigger lighter flame or a flaming paper taper would have caused an explosion as soon as the flame reached the cooker opening. Thus, in fact the evidence was that Bowen placed the burning paper on the burner where it continued to burn without igniting the burner or the pooled gas immediately. However, the single door and the construction of the underside of the cooker with the drip pan allowed gas to pool to the top of the pan wall, because the heavier than air propane collects in a pool in the pan at the bottom of the cooker. The dead space in the burner caused a delayed ignition of the burner, which in turn ignited the accumulated gas pool in the pan, because the design was inadequate to ventilate adequately the cooker of the trapped gas in the pan, and the burner orifices allowed delayed ignition in the dead zone of the burner.

Cochran inspected the cooker after a worker was injured in a prior similar occurrence and told Bowen that everything was all right with the cooker as to design and function. Thus, any subjective knowledge of Bowen that the cooker was hazardous, because the cooker had a tendency to trap pooled gas when it had to be relit, was nullified by the assurances made by Cochran.

Neither the answer to the complaint nor the pretrial order raised the affirmative defense of assumption of the risk. The Civil Practice Act mandates that an affirmative defense be raised in the answer, in the pretrial order, or in a motion to provide timely notice of the issues to be tried. OCGA §§ 9-11-8 (c); 9-11-16; O’Quinn v. O’Quinn, 237 Ga. 653, 654 (229 SE2d 428) (1976) (affirmative defense raised by answer or motion for adjudication on the merits); Rimes Tractor & Equip, v. Agricredit Acceptance Corp., 216 Ga. App. 249, 250-251 (454 SE2d 564) (1995) (affirmative defense raised by pleadings or motion to a counterclaim); Brown v. Quarles, 154 Ga. App. 350, 351-352 (268 SE2d 403) (1980) (affirmative defense raised by motion); Bailey v. Polote, 152 Ga. App. 255, 257 (2) (262 SE2d 551) (1979) (same). The defendant did not amend his answer to raise the affirmative defense of assumption of the risk; therefore, the trial court erred in allowing *462any evidence purporting to prove such defense. Brown v. Little, 227 Ga. App. 484, 485 (1) (489 SE2d 596) (1997) (reversible error for trial court to allow evidence at trial over objection when issue not raised by pleadings, amendment, or pretrial order). Since the evidence failed to establish each and every element of the defense of assumption of the risk, then the evidence admitted at trial did not amend the pleadings to conform to the evidence; further, the plaintiff did not consent to such issue being tried because he moved for a directed verdict on such issue. OCGA § 9-11-15 (b); Borenstein v. Blumenfeld, 250 Ga. 606, 607-608 (1) (299 SE2d 727) (1983) (where evidence admissible for one issue raised in the pleadings, such evidence cannot be treated as a waived objection to allow it to amend the pleadings for an issue not pled); McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978) (the admission at trial of unobjected-to evidence which raises an unpled defense acts as either an express or implied consent to try such issue and amends the pleadings to conform to the evidence admitted at trial); Brackett v. Cartwright, 231 Ga. App. 536, 537-538 (1) (499 SE2d 905) (1998). Thus, procedurally, the trial court erred as a matter of law in not granting the motion for directed verdict as to this issue not properly placed before the jury.

More importantly, the trial court erred in failing to grant the directed verdict as to the defense of assumption of the risk, because the defendant failed to affirmatively prove each essential element of such defense, which would allow the jury to decide the issue.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. ... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to *463relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

(Punctuation and footnotes omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). See also Muldovan v. McEachern, 271 Ga. 805, 807-808 (2) (523 SE2d 566) (1999); Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991). Even if any use of the cooker at all constituted generally a known danger because butane gas was used and the danger of gas collecting existed, then this still would fail to constitute an assumption of the risk, because the specific danger of gas collecting in the grease pit and the dead zone causing delayed ignition was neither actually and subjectively known nor understood and appreciated as a specific hazard. Beringause v. Fogleman Truck Lines, supra at 823-824.

A plaintiff who encounters a known general danger does not thereby consent to any future negligence of the defendant.

This is contributory negligence pure and simple; it is not assumption of risk. The plaintiff has exposed himself to the risk of future harm, but he has not consented to relieve the defendant of any future duty to act with reasonable care. This is a distinction which has baffled a great many law students, some judges, and unhappily a few very learned legal writers.

(Citation, punctuation and emphasis omitted.) Beringause v. Fogleman Truck Lines, supra at 823 (4).

Thus, the evidence failed to show both an actual and a specific subjective knowledge or understanding and appreciation of the specific risk that the gas would pool in the pan so that normal ventilation would not dissipate the heavy gas from the bottom pan of the cooker and that the gas -burner had delayed ignition from a dead zone causing the hazard of a possible flashback upon ultimate ignition of the burner. The trial court erred in treating a comprehension of a general, nonspecific, awareness and understanding of a risk of gas collecting as the actual and subjective knowledge mandated as an essential element of this defense. Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 639-640 (1) (519 SE2d 722) (1999); Beringause v. Fogleman Truck Lines, supra at 823-825 (4). The trial court erred as a matter of law in denying the motion for directed verdict.

Further, the trial court erred as a matter of law in giving an incomplete charge on the defense of assumption of the risk, because it failed to charge on both actual and subjective knowledge of a specific risk and understanding and appreciation of such specific risk and that the knowledge required did not refer to a plaintiff’s compre*464hension of general, nonspecific, risks that might be associated with such condition or activities. Beringause v. Fogleman Truck Lines, supra at 824; see also Jimenez v. Morgan Drive Away, supra at 639-640. The better practice is for the trial court to give the above language quoted from Vaughn v. Pleasent verbatim as the charge on assumption of the risk.