author: Rickman, Judge.

text:
    A16A1188.
    MIDVILLE RIVER TRACT, LLC v. CENTRAL OF GEORGIA RAILROAD COMPANY et al.
    (794 SE2d 192)
   Rickman, Judge.

In November 2010, a train operated by Central of Georgia Railroad Company and partly owned by Norfolk Southern Railway Company (collectively, “the Railroads”) derailed near Midville, Georgia causing a chemical spill onto real property owned by Midville River Tract, LLC (“Midville”). Midville sued the Railroads for damages, alleging that the derailment was caused by an internal flaw in the track rail that necessarily resulted from negligence during the welding process of its construction. The trial court granted summary judgment to the Railroads after concluding that Midville’s claims were preempted by federal law and, alternatively, that its measure of damages was speculative and failed as a matter of law. We agree with the trial court that Midville’s claims are preempted by federal law and, accordingly, we affirm.

This Court reviews de novo the trial court’s decision to grant a motion for summary judgment. See Howell v. Normal Life of Ga., Inc., 337 Ga. App. 774, 775 (788 SE2d 840) (2016). We construe the evidence in the light most favorable to Midville, and we affirm if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c); see id.

So construed, the facts are as follows. On November 21, 2010, a train derailed in the coastal plains of Georgia outside of the town of Midville. Central of Georgia operated the train and owned the railroad track where the derailment occurred; Norfolk Southern owned the locomotive at the front of the train.

As a result of the derailment, a tanker railcar containing methyl ethyl ketone (“MEK”) ruptured and released most of its contents into the soil of Midville’s property A substantial portion of the released MEK was consumed in a fire that occurred following the derailment; the remaining MEK, however, flowed from the north side of the track to the south side of the track and entered the soil. Although the Railroads cite to record evidence that the surface area of the MEK spill affected less than two acres of Midville’s 989-acre property, Midville questions the accuracy of that calculation as it pertains to the affected soil.

An investigation revealed that the derailment was caused by a fracturing of the rail. The rail was a “continuous welded rail”—i.e., a rail consisting of abutting lengths of railroad track connected by welds—and was constructed using a method called “thermite welding.” The investigation determined that the fracture resulted from a “dendrite inclusion,” or a void in the thermite weld, which formed during the final stages of the welding process as the medal solidified.

It is undisputed that the void in the weld was microscopic and was undetectable using the technology available at the time of the derailment. It is further undisputed that the Railroads were in compliance with federal regulations regarding the frequency of inspections of the rail and that, in addition to visual inspections, the area of the derailment had been inspected by a track geometry car less than one month before the derailment, and had been inspected by a “Sperry car” using ultrasonic technology less than three months before the derailment. Finally, it is undisputed that the train was not speeding at the time it derailed.

Midville filed suit against the Railroads, asserting tort claims for damage to property, trespass, and nuisance, and alternatively arguing that it was entitled to damages under the doctrine of res ipsa loquitur. Its claims are premised upon an allegation of negligence by the Railroads. Although the parties’ experts disagree on this point, Midville’s expert contends that the void in the metal would not have formed in the absence of negligence during the welding process. Specifically, the expert opined that the dendrite inclusion formed because the welder, whose identity remains unknown, failed to observe proper welding procedures by removing the molds used to make the welds too quickly, and/or performing the welding “in temperature conditions that would compromise the integrity of the thermite weld.” Thus, Midville’s complaint alleges that the fractured weld “was installed incorrectly and imperfectly, in violation of Federal Railway Administration Regulations and the internal policies and plans of [the Railroads]Midville maintains that its real property was intended to be used as a federal wetlands mitigation bank, and that it has suffered a “complete and total loss” of the 989-acre tract, despite the Railroads’ remediation of the property. It seeks to recover as damages the full value of the property

The Railroads moved for summary judgment, contending that Midville’s tort claims were preempted by federal law and challenging the evidence supporting Midville’s claim of damages. The trial court granted summary judgment to the Railroads, reasoning both that Midville’s claims were preempted by federal law and that its measure of damages was too speculative such that it failed as a matter of law. This appeal follows.

1. “Railroads are among the most heavily regulated American industries.” Zimmerman v. Norfolk Southern Corp., 706 F3d 170, 174 (3d Cir. 2013). Congress passed the Federal Railroad Safety Act (“FRSA”) in order to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 USC § 20101. The FRSA gave the Secretary of Transportation authority to “prescribe regulations and issue orders for every area of railroad safety” in order to carry out this purpose. 49 USC § 20103 (a). The FRSA preempts any state or local law, regulation, or order that is “an additional or more stringent law, regulation, or order related to railroad safety or security . . 49 USC § 20106 (a) (2).

In 2007, Congress passed an amendment to the preemption provision in order to provide “[clarification regarding State law causes of action.” 49 USC § 20106 (b). The amendment provides, in part, that federal law does not preempt state law causes of action seeking to recover for damage to property by alleging that a party “(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters)” or “(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by [the Secretary of Transportation].” 49 USC § 20106 (b)(1),

Midville contends that federal law required the Railroads to prescribe internal standards, plans, and procedures governing the safe installation of continuous welded rail, and that the Railroads failed to comply with their own internal standard — Standard 425 — governing thermite welding. Therefore, Midville argues, its claims fall within 49 USC § 20106 (b) (1) (B) and are not preempted.

The flaw in this reasoning, as argued by the Railroads and held by the trial court, is that Midville’s claims are preempted unless Standard 425 was “created pursuant to a regulation or order issued by [the Secretary of Transportation],” 49 USC § 20106 (b) (1) (B), and the record fails to establish that it was. Rather, pursuant to 49 CFR § 213.118, the Railroads are required to have in effect and comply with a plan regarding the installation of continuous welded rail, 49 CFR § 213.118 (a), and the plan must be filed by the Railroads and approved by the Federal Railroad Administration (“FRA”). 49 CFR § 213.118 (b). The required minimum elements of the federally mandated plan are set forth in 49 CFR § 213.119 (2010).

Nowhere does 49 CFR § 213.119 direct the adoption of an internal procedure governing thermite welding. Indeed, the Railroads’ plan governing continuous welded rail, as submitted to and approved by the FRA in accordance with 49 CFR §§ 213.118 and 213.119, is contained in the record and does not include Standard 425. And Midville makes no allegation that the Railroads violated any standard actually contained within the plan that was submitted to and approved by the FRA pursuant to 49 CFR §§ 213.118 and 213.119.

We decline Midville’s invitation to hold that Standard 425 was adopted pursuant to a directive by the Secretary of Transportation merely because it is “reflective of [the Railroads] legal duty ... to enact plans and procedures for the safe installation and maintenance of continuous welded rail” and/or because the plan as submitted to and approved by FRA contained a “special reference[ ]” to Standard 425 among numerous other references that were neither expressly incorporated into nor attached to the plan. Compare 49 CFR § 218.109 (a) (1) (“Each railroad shall adopt and comply with an operating rule which complies with the requirements of this section. . . 49 CFR § 232.103 (n) (4) (2010) (“A railroad shall adopt and comply with a process or procedures to verify that the applied hand brakes will sufficiently hold an unattended locomotive. . . To do so would expand the requirements of 49 CFR §§ 213.118 and 213.119 and directly contradict federal law governing preemption. See 49 USC § 20106 (b) (1).

Decided November 17, 2016

In sum, nothing in the federal regulations or in the appellate record support a finding that Standard 425 was created pursuant to an order issued by the Secretary of Transportation. Compare 49 CFR § 213.119 (2010) (“The plan [containing written procedures which address the installation, adjustment, maintenance, and inspection of continuous welded rail] shall contain the following elements_”). We therefore conclude that Standard 425 is an internal standard exceeding the minimum plan requirements set forth in 49 CFR § 213.119 (2010), and any cause of action by Midville premised upon an allegation that it was violated is preempted by federal law. See 49 USC § 20106 (a) (2); see also Driesen v. Iowa, Chicago & Eastern R. Corp., 777 FSupp.2d 1143, 1158 (III) (B) (5) (N.D. Iowa 2011) (holding that appellant’s claims based upon railroad’s alleged violation of internal rules were preempted because appellant failed to cite to any federal regulation mandating the internal rules); Van Buren v. Burlington Northern Santa Fe R. Co., 544 FSupp.2d 867, 879 (D. Neb. 2008) (same). Compare Skrovig v. BNSFR. Co., 855 FSupp.2d 933, 944 (1) (D. S.D. 2012) (rejecting railroad’s denial that the internal operating rules that were allegedly violated were developed pursuant to a federal regulation when the railroad otherwise failed to produce any other evidence of the federally mandated internal rules).

2. Our holding in Division 1 renders it unnecessary for us to address Midville’s remaining enumerated error regarding the trial court’s holding related to evidence of its property damages.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Barnes Law Group, Roy E. Barnes, John F. Salter, Jr., for appellant.

Hull Barrett, George R. Hall, N. Shannon Lanier; Holland & Knight, Laurie W. Daniel, for appellees.

       MEK is a highly flammable, colorless liquid solvent.

       Generally, a welder constructing any portion of rail stamps identifying information, including when the weld was made and by whom, on one of either end of a field weld. In this case, the opposite side of the defective weld that contains the identifying information was never located.

       In its brief, Midville somewhat conflates 49 USC § 20106 (b) (1) (A) and (B), arguingthat the Railroads failed to meet their federal duty under 49 USC § 20106 (b) (1) (A) by allegedly violating their own internal standard under 49 USC § 20106 (b) (1) (B). Regardless, the crux of Midville’s argument is that its claims are not preempted because the Railroads violated their own internal Standard 425 governing thermite welding.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A1209.
    TRAVIS v. QUIKTRIP CORPORATION et al.
    (794 SE2d 195)
   McMlLLIAN, Judge.

On July 12, 2011, Harold Travis, who was employed as a tanker driver for Petroleum Transport Company (“PTC”), was delivering a load of gasoline to a QuikTrip Corporation (“QT”) gas station managed by Lloyd Thompson (the “Station”) when he was struck by a vehicle driven by Jose Leon. Travis brought suit against, inter alia, Leon, QT, and Thompson seeking to recover medical expenses, lost wages, and other damages resulting from the collision. The trial court subsequently granted summary judgment to QT and Thompson, and Travis appeals. We reverse for the reasons set forth below.

“Summary judgment is proper when there is no genuine issue of material fact as to any essential element of a claim and the movant is entitled to judgment as a matter of law.” (Citation omitted.) Word of Faith Ministries, Inc. v. Hurt, 323 Ga. App. 296, 296 (746 SE2d 777) (2013). In reviewing the grant of summary judgment, we consider the evidence de novo, viewing the evidence and all reasonable conclusions and inferences to be drawn from it in the light most favorable to Travis, as the nonmovant. Id.

So viewed, the evidence shows that on the date of the collision, Travis parked his tanker truck at the Station in the area for delivering gasoline, placed three orange traffic cones near the truck, and entered the Station store to input information about his delivery into a computer and obtain a printout of the information. After receiving the initial printout, Travis exited the store to “stick the tanks” (i.e., to measure the Station’s underground tank levels with a long stick) and to process his delivery. The Station was a “remote drop” location, which meant that the delivery or drop points for putting the gasoline into the underground tanks were positioned to the left of the store building, while the caps that allowed access for sticking the tanks were in another location, in the parking spaces immediately in front of the store and to the left of the store entrance (the “Tank Area”). Travis moved one of the cones from around his truck to the Tank Area while he stuck the tanks, then moved back to his truck, taking the cone with him, and delivered the gasoline.

At the pertinent time, QT policy required drivers to stick the tanks both before and after the delivery of gasoline, so Travis went back to the Tank Area to stick the tanks a second time in order to check the new fuel levels. He again took a cone with him and placed it in the area. While Travis was sticking the tanks, he dropped a tank cap into the well of the tank. He then got on his hands and knees to retrieve the cap. As Travis stretched his hand inside the tank to reach the cap, Leon backed his vehicle into Travis.

Prior to this incident, during meetings with PTC and QT personnel, Travis and his co-workers had reported that they had experienced “close calls” with automobiles while delivering gasoline to remote drop QT locations such as the Station. Travis stated that he had also placed QT on notice that its requirement that drivers stick the tanks was unnecessary and duplicated the computerized monitoring of the tanks. Nevertheless, at the time of the incident in this case, QT maintained its policy of requiring delivery drivers to manually stick the tanks twice, and Travis testified that prior to the incident in this case, “a couple of [drivers] got fired on the spot” for failing to follow this policy

Travis’s complaint asserted claims against QT and Thompson based on premises liability, negligent hiring, and/or negligent supervision. QT and Thompson moved for summary judgment on Travis’s claims, initially arguing that they were entitled to summary judgment because QT qualified as a statutory employer of Travis, affording them the protections of the exclusive remedy provision of the Workers’ Compensation Act. See OCGA § 34-9-11. Six months later QT and Thompson filed a supplemental brief arguing that they were also entitled to summary judgment because Travis had equal or superior knowledge of any purported hazard leading to the collision and further that the nature of Travis’s work changed the character for safety of the Station, thus falling within an exception to the safe workplace rule set out in OCGA § 51-3-1.

Five days after this supplemental brief was filed, the trial court signed an order denying the motion for summary judgment based on a finding that QT did not qualify as a statutory employer of Travis, but the order did not address the arguments raised in the supplemental brief. In response, QT and Thompson filed a motion for reconsideration reasserting these arguments. Following a hearing, the trial court granted the motion for reconsideration and the motion for summary judgment, finding that Travis had equal or superior knowledge of any alleged hazard involved in sticking the tanks at the Station, as any alleged hazard was open, obvious, and well known to Travis and other PTC drivers.

Travis argues that the trial court erred in deciding the issues in this case as a matter of law instead of submitting them to the jury In particular, he asserts that the trial court erred in finding (1) that his knowledge was greater than or equal to QT’s and Thompson’s; (2) that this case involved a static dangerous condition and not what he terms a “dynamic” one; and (3) that he assumed all the risks of the usual and ordinary hazards of his employment as well as any special risks and that he was not coerced into sticking the tanks.

1. Under OCGA § 51-3-1, a person who owns or occupies land and “by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, ... is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” In order to recover on a premises liability claim, a plaintiff must show “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-49 (2) (b) (493 SE2d 403) (1997). Thus, it is well settled in Georgia that “the fundamental basis for an owner or occupier’s liability [is] that party’s superior knowledge of the hazard encountered by the plaintiff.” Id. at 736 (1). See also McDonald v. West Point Food Mart, Inc., 332 Ga. App. 753, 754 (774 SE2d 774) (2015) (physicalprecedent only). Stated another way, a plaintiff is not entitled to recovery if “the undisputed evidence demonstrates that the plaintiff’s knowledge of the hazard was equal to or greater than that of the defendant.” Norman v. Jones Lang LaSalle Americas, Inc., 277 Ga. App. 621, 624 (627 SE2d 382) (2006).

The undisputed evidence in this case demonstrates that Travis, QT, and Thompson all had knowledge that the placement of the tanks at the Station presented a potential hazard because it put tanker drivers into the flow of any traffic pulling in and out of the parking area where the tanks were located. Travis stated that he had made deliveries to the Station, as well as to other QT remote drop locations, for a period of five to six years. In response to a deposition question on whether he had previously had close calls with cars at the Station, Travis replied, “Yeah. I mean, at any remote drop [location] you’re almost being hit, because you’re in the flow of traffic. So, I don’t know when I’m gonna get hit or who’s gonna hit me, but of course.” Travis and his fellow employees reported these prior close calls in the meeting with QT representatives, in which they discussed “how dangerous it was at the remote drops for sticking the tanks because we have to go in the flow of traffic, go in a parking area to stick the tank.”

Thus, we find that Travis had at least equal knowledge of the potential danger involved in sticking the tanks at the Station’s remote drop location. However, our analysis does not end with this finding, because any potential danger arose from exposure to the risk of negligent actions by third parties. And, indeed, Travis’s injuries in this case arose directly from the allegedly negligent actions of a third party in backing his car into Travis.

This Court addressed an analogous scenario in the case of O’Steen v. Rheem Manufacturing Co., 194 Ga. App. 240, 240 (390 SE2d 248) (1990). There, the plaintiff, who was employed by the defendant, was driving on a side road in the company’s parking lot when a car driven by another employee entered the road in which she was traveling, causing a collision. The plaintiff alleged that the defendant had created a hazardous condition in the parking lot by allowing large trucks to be parked where they blocked the view of the intersection where the accident occurred. Id. Thus, the plaintiff, like Travis, alleged that her injury resulted from the landowner’s creation of a hazard that increased the risk of her injury from third parties.

This Court applied the superior/equal knowledge rule in O’Steen, explaining that the rule “presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care.” (Citation and punctuation omitted.) 194 Ga. App. at 242 (1). Thus, the Court found that the rule applied in those cases “where the proprietor allows a dangerous condition to exist, including cases where the alleged dangerous condition is one created by the activities of third persons,” but only

so long as the condition is one which the invitee[] can expect equally with the host, or come to know of, and therefore must anticipate the danger. In other words, the condition even if created by third parties must be such that the invitee can indeed have equal knowledge and either assumes the risk or can avoid the danger with ordinary care.

(Citation and punctuation omitted; emphasis supplied and in original.) Id. In other words, “[t]he ‘equal knowledge rule’ ... is the practical application of a rule that a knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of defendant’s negligence. OCGA § 51-11-7.” (Punctuation omitted.) Id.

This Court concluded under the facts in O’Steen that the plaintiff had an obligation to approach the blind intersection in a fashion that enabled her “to determine visually that the intersection, to as near an absolute certainty as possible, was clear[,]” and “absent disciplined habits on the driver’s part,” any actions by the employer could not have prevented the injury. 194 Ga. App. at 243. Therefore, the trial court determined that the plaintiff, having knowledge of the dangerous intersection, failed to exercise ordinary care for her safety as a matter of law.

However, to bar a plaintiff’s recovery, “[ejxposure to the known risk must be voluntary, the result of a deliberate choice.” (Citation and punctuation omitted.) Bass Custom Landscapes, Inc. v. Cunard, 258 Ga. App. 617, 620 (1) (575 SE2d 17) (2002). “And, the defense of assumption of risk assumes that the actor, without coercion[] of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice whether to engage in the act or not.” (Citation and punctuation omitted.) Id. at 620-21 (1). Although the plaintiff in O’Steen had a choice in how she approached the intersection, evidence in the record indicates that Travis was in the Tank Area only because QT policy required him to be there, and his employment was subject to termination if he failed to follow this policy. Although it is unclear whether QT or Travis’s employer, or both, had the authority to fire him for failing to follow the policy, “[c]oercion which prevents the application of the assumption of risk defense need not come solely from [the] defendant.” York v. Winn-Dixie Atlanta, Inc., 217 Ga. App. 839, 841 (459 SE2d 470) (1995).

Therefore, Travis was presented with the untenable choice of placing himself at risk of the traffic flow or risking the loss of his job. Moreover, Travis had voiced his displeasure that the policy subjected him to risk and had unsuccessfully lobbied to have the policy changed. Under these circumstances, we cannot say as a matter of law that Travis’s conduct in placing himself in the Tank Area was unreasonable or that he voluntarily assumed the risk of the traffic flow. See Cunard, 258 Ga. App. at 620 (question of fact arose regarding issues of assumption of risk and coercion where plaintiff, who was ordered by her supervisor to drive a co-worker to the hospital, slipped and fell on icy steps, even though she was aware of the icy conditions from safely negotiating them earlier); York, 217 Ga. App. at 841 (deliveryman’s “Hobson’s choice of facing the slippery high platform forced on him by the customer/defendant or facing his employer with the undelivered fish” he had been ordered to transport precluded a finding as a matter of law that he assumed the risk of traversing the platform); Kitchens v. Winter Co. Builders, Inc., 161 Ga. App. 701, 702 (289 SE2d 807) (1982) (defendant employer not entitled to summary judgment on the ground that the plaintiff, who was aware of a defective ladder’s danger and had complained to his supervisors about it, assumed the risk of any danger by continuing to work with the ladder and not refusing to work).

Thus, we find that QT and Thompson failed to establish that they were entitled to summary judgment under the superior/equal knowledge rule.

2. Similarly, we find that QT and Thompson failed to establish that they were entitled to summary judgment under an exception to the requirement under OCGA § 51-3-1 that landowners exercise ordinary care to keep their premises safe for invitees. That exception applies “to workers hired to perform work which makes a place that is known to be dangerous, safe, or in a work that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses.” (Citation and punctuation omitted.) Elsberry v. Ivey, 209 Ga. App. 620, 621 (2) (a) (434 SE2d 158) (1993). QT and Thompson assert that the parking lot itself is not a dangerous place. Instead, they argue that any alleged danger applies only to fuel delivery drivers while delivering fuel and sticking the tanks and that the drivers assume any and all risks associated with those job requirements, citing, e.g., Long Leaf Industries, Inc. v. Mitchell, 252 Ga. App. 343, 344 (1) (556 SE2d 242) (2001) (“[A]n employee or contractor assumes all the usual and ordinary hazards of his business and is bound to use skill and diligence to protect himself. He also assumes any special risk which is known to him or which is so obvious that a reasonably prudent man would observe and appreciate it.”) (citation and punctuation omitted).

Decided November 17, 2016.

MLG-McLendon Law Group, Louis L. McLendon, for appellant.

Pretermitting whether the act of delivering gas could affect the Station’s character for safety as it relates to the injuries suffered by Travis, this case addresses QT’s unique requirement that drivers manually stick the tanks and the placement of the tank access in the Station’s active parking area. These conditions were created by QT and are not conditions inherent in the work of delivering gasoline. Accordingly, we find no merit to the argument that this exception entitles QT and Thompson to judgment as a matter of law. Rather, we interpret this argument as just another way of asserting that Travis’s claims should be barred because he assumed the risk of any alleged danger arising from the conditions QT imposed by continuing to work under such conditions. We have found that factual questions remain on this issue barring summary judgment.

Accordingly, we reverse the trial court’s grant of summary judgment to QT and Thompson.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

Cruser & Mitchell, J. Robb Cruser, Kathleen M. Hurley, for appellees.

       Travis has settled his claims against Leon.

       The applicable procedure required that Travis re-enter the store after his delivery and obtain another computer report reflecting the new tank levels.

       Thompson has pointed us to no evidence establishing that he was somehow unaware of the potential danger of the tanks’ placement in the parking area near the front of the store, where cars moved in and out. Therefore, for purposes of summary judgment, Thompson, as manager of the Station, must be charged with knowledge of the hazard.

       Compare, e.g., Forest Cove Apts., LLC v. Wilson, 333 Ga. App. 731, 733-34 (776 SE2d 664) (2015) (where plaintiff reported hazard to defendant, her “at least equal knowledge” of hazard entitled defendant to summary judgment); Norman, 277 Ga. App. at 626-27 (2) (a) (defendant entitled to summary judgment where plaintiff had actual knowledge of an open and obvious hazardous condition for two months before injury and thus failed to establish that defendant’s knowledge was superior); Walters v. Mableton Wholesale Co., Inc., 204 Ga. App. 663 (420 SE2d 354) (1992) (defendant entitled to summary judgment on claims arising from his fall from dangerous ramp where plaintiff was aware of ramp’s condition and, in fact, had informed his employer that he did not believe the ramp was safe).

       “OCGA § 51-3-1 defines an invitee as one who is induced by an express or implied invitation to enter the premises of another,” Edmunds v. Copeland, 197 Ga. App. 292, 293 (398 SE2d 280) (1990), which definition encompasses Travis in this case, as he was invited on the property to deliver gas.

       In this context, coercion means “ *(t)o compel by force or threat.’ Black’s Law Dictionary (9th ed. 2009).” Smith v. NT Nails, LLC, 331 Ga. App. 98, 99 (770 SE2d 646) (2015).

       We further note that the evidence shows at the time Leon’s car struck Travis, Travis was not in a standing position sticking the tank but was instead on his hands and knees retrieving the interior tank cap, which he had dropped into the tank’s well. The evidence further shows that he was struck from behind, suggesting that he may have had his back to the traffic flow, raising a number of factual issues regarding assumption of risk.

       Compare Glenn v. Gibbs, 323 Ga. App. 18, 24 (1) (746 SE2d 658) (2013) (physical precedent only) (plaintiff’s husband assumed risks of dangers ordinarily attendant in trimming tree branches on defendant’s property); Odister v. Leach, 257 Ga. App. 106, 108 (570 SE2d 391) (2002) (plaintiff injured while cutting a tree limb assumed the risks of any dangers that “would ordinarily and naturally exist in doing the work which he was employed to perform”) (citation and punctuation omitted); Howell v. Farmers Peanut Market of Sowega, Inc., 212 Ga. App. 610, 611 (2) (442 SE2d 904) (1994) (plaintiff hired to replace grain elevator motor and injured while motor was hoisted into place assumed the risks of the work performed); Elsberry, 209 Ga. App. at 622 (2) (c) (plaintiff hired to replace roof and who slipped from the roof assumed the ordinary risks attendant to that employment).


text:
    A16A0984.
    RIGBY et al. v. FLUE-CURED TOBACCO COOPERATIVE STABILIZATION CORPORATION.
    (794 SE2d 413)
   Rickman, Judge.

In a second appearance before this Court, Julian Rigby, Terry Altman, Elton Carter, David H. Lee, and Bryan Aldridge (“Appellants”) appeal the trial court’s order granting summary judgment to the Flue-Cured Tobacco Cooperative Stabilization Corporation on their claims for breach of fiduciary duty and attorney fees and expenses. Appellants contend that the trial court erred by (1) applying Georgia law to their breach of fiduciary duty claim, (2) finding that the evidence was insufficient to support their breach of fiduciary duty claim under North Carolina law, (3) determining that their breach of fiduciary duty claim is barred by the statute of limitation, and (4) granting judgment against them on their claim for attorney fees and expenses under OCGA § 13-6-11. For reasons that follow, we affirm.

Summary judgment is proper “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). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation, punctuation and footnote omitted.) Burkett v. Liberty Mut. Fire Ins. Co., 278 Ga. App. 681, 681-682 (629 SE2d 558) (2006).

So viewed, the evidence shows that the Flue-Cured Tobacco Cooperative Stabilization Corporation, now known as the U. S. Tobacco Cooperative, Inc. (the “Cooperative”), was formed in North Carolina in 1946 as a nonprofit cooperative association with the stated purposes of engaging in any activity “involving or relating to the business of receiving, grading, processing, drying, packing, storing, financing, marketing, selling, and/or distribution, on a cooperative basis, of flue-cured tobacco or products or by-products derived therefrom... .’’Appellants are current or former tobacco farmers who were members of the Cooperative by virtue of their payment of a $5 capital contribution in exchange for a share of common stock. The Cooperative’s Articles of Incorporation provide that the common stock “may be purchased, owned or held only by producers who shall patronize the [Cooperative] in accordance with uniform terms and conditions prescribed thereby and only such persons shall be regarded as eligible members of the [Cooperative].”

Additional facts are taken from the prior opinion in this case:

The [Cooperative] worked through the Commodity Credit Corporation (“CCC”) and the United States Department of Agriculture (“USDA”) to administer the federal tobacco price support program within the framework first created by the Agricultural Adjustment Act of 1938, which established a program of federal tobacco quotas and price supports aimed at stabilizing and increasing the prices paid to America’s tobacco growers. 7 USC § 1281 et seq.
In brief, the USDA annually set the minimum price for flue-cured tobacco, and the payment for tobacco was funded through loans that the [Cooperative] received from the CCC. The [Cooperative] used the loans to purchase eligible tobacco that served as collateral for the CCC loans. The [Cooperative] then processed and stored the tobacco, and later attempted to resell it at a price sufficient to repay or reduce the CCC loans. When the [Cooperative] realized more from the sale of a particular tobacco crop than necessary to repay the CCC loans and recover its costs, the tobacco growers who produced that particular crop received a portion of the surplus, or net gain. When the proceeds from the sale of a particular crop were insufficient to repay the CCC loans, however, the losses were absorbed by the federal government.
In 1982, Congress [adopted the No Net Cost Tobacco Program Act, PL 97-218, 96 Stat. 197, to ensure that the tobacco price support program was carried out at no net cost to the taxpayer by requiring producers of quota tobacco to share equitably in helping to eliminate losses that may be incurred in carrying out the program] and requiring any net gains realized by tobacco cooperatives to be retained by the CCC in order to offset any losses incurred on tobacco loans. . . .
In 2004, the federal government ended the minimum price support program with passage of the Fair and Equitable Tobacco Reform Act of 2004 (“FETRA”).

Rigby v. Flue-Cured Tobacco Coop. Stabilization Corp., 327 Ga. App. 29, 30-31 & n. 2 (755 SE2d 915) (2014).

In 2004, the Cooperative purchased a processing and manufacturing facility to enable it to manufacture cigarettes and develop brands to be distributed by a third party. Later that year, the Cooperative sent letters to flue-cured tobacco farmers, informing them of this new venture and offering them the opportunity to sign an exclusive marketing agreement with the Cooperative for the 2005 crop year. Farmers who elected not to enter exclusive marketing agreements were no longer considered eligible members and were given the opportunity to have their stock redeemed.

In 2007, Appellants filed suit against the Cooperative, asserting claims for an accounting, distribution of retained earnings, specific performance to compel issuance of stock certificates, breach of contract based on an alleged denial of the right to sell tobacco through the Cooperative’s marketing centers, and attorney fees. Appellants amended their complaint several times, adding claims for breach of contract/conversion for failure to pay their share of gains on the sale of tobacco from 1967-1973, breach of a loan warranty to pay net proceeds on the sale of tobacco from 1967-1973, and breach of fiduciary duty (added in 2012). The trial court ultimately dismissed or granted summary judgment to the Cooperative on all claims, and Appellants appealed.

In Rigby, 327 Ga. App. 29, a panel of this Court affirmed the trial court’s ruling on all claims except the trial court’s dismissal of the breach of fiduciary claim and the grant of summary judgment on the related claim for attorney fees and expenses. Specifically, this Court held that “we cannot conclude that some of the [Appellants] could not establish a fiduciary relationship in this case” under North Carolina law, id. at 41 (6), and that Appellants “might be entitled to attorney fees with respect to their breach of fiduciary duty claim.” Id. at 42 (7).

After that decision, the case returned to the trial court and the parties conducted additional discovery on the breach of fiduciary duty claim, which consists of the following alleged violations: wrongfully attempting to remove Appellants as members of the Cooperative; failing to provide Appellants with contracts; withholding discovery and refusing to allow Appellants to inspect the Cooperative’s books; failing to set up capital reserve accounts for each Appellant; holding net gains past the next tax year; not allowing Appellants to inspect the corporate minutes; not issuing stock certificates; not keeping a stock book; failing to pay Appellants as required; and taking disadvantageous bids for tobacco sold through the Cooperative. The Cooperative then filed a motion for summary judgment, which the trial court granted. The trial court ruled that, applying the doctrine of lex loci delicti, Georgia law governed Appellants’ claim for breach of fiduciary duty and that Georgia law foreclosed their claim. The trial court also ruled that if North Carolina law applied, it would foreclose Appellants’ claim because the Cooperative owed no fiduciary duty to Appellants. In addition, the trial court ruled that the claim was barred by the Georgia statute of limitation. Finally, the trial court ruled that the related claim for attorney fees must fail because it was predicated on the underlying breach of fiduciary duty claim.

1. Breach of fiduciary duty claim.

Appellants contend that the trial court erred in ruling that (1) Georgia law applies to their breach of fiduciary duty claim, and (2) even if North Carolina law applies, it forecloses their breach of fiduciary duty claim. They argue that North Carolina law applies and that “there is sufficient evidence to create a question of fact as to whether [the Cooperative] used Appellants’ funds to serve its own interests and to the detriment of these farmers by purging them from the membership rosters and refusing them the opportunity to sell tobacco.” Appellants also argue that their breach of fiduciary duty claim is timely because it relates back to the filing of their original complaint.

The trial court ruled that Georgia law should apply to Appellants’ breach of fiduciary duty claim under the doctrine of lex loci delicti because the injuries to Appellants, all Georgia residents, were suffered in Georgia. See Bullard v. MRA Holding, 292 Ga. 748, 750 (1) (740 SE2d 622) (2013) (Georgia follows the doctrine of lex loci delicti in tort cases, “pursuant to which a tort action is governed by the substantive law of the state where the tort was committed,” and “[t]he place where the tort was committed, or, the locus delicti, is the place where the injury sustained was suffered rather than the place where the act was committed.”) (citations and punctuation omitted). Appellants do not challenge the trial court’s ruling that Georgia law forecloses their breach of fiduciary duty claim, but instead argue that North Carolina law should apply under the internal affairs doctrine, codified in OCGA § 14-2-1505 (c) (“This chapter does not authorize this state to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this state.”), and that under North Carolina law, whether a fiduciary relationship exists is a question of fact for the jury Even if we assume that North Carolina law applies to Appellants’ breach of fiduciary duty claim, we conclude that summary judgment was properly granted.

Under North Carolina law, to establish a claim for breach of fiduciary duty, “there must first be a fiduciary relationship between the parties.” (Citations omitted.) Dalton v. Camp, 353 N. C. 647, 651 (I) (548 SE2d 704) (2001). “[A] fiduciary relationship is generally described as arising when there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.” (Citations and punctuation omitted.) Dallaire v. Bank of America, N.A., 367 N. C. 363, 367 (760 SE2d 263) (2014). In North Carolina, there are two types of fiduciary relationships: (1) those that arise as a matter of law from the nature of the relationship, such as attorney and client, trustee and trust beneficiary, principal and agent; and (2) those that arise in fact, “in which there is confidence reposed on one side, and the resulting superiority and influence on the other.” (Citations and punctuation omitted.) Ellison v. Alexander, 207 N. C. App. 401, 408 (1) (b) (700 SE2d 102) (2010); see also CommScope Credit Union v. Butler & Burke,_N. C._(II) (790 SE2d 657) (2016); HAJMM Co. v. House of Raeford Forms, 328 N. C. 578, 588 (II) (403 SE2d 483) (1991) (although business partners are fiduciaries as a matter of law, in less clearly defined situations, “the question whether a fiduciary relationship exists is more open and depends ultimately on the circumstances”).

Here, Appellants contend that a fiduciary relationship arose because they held a “special confidence” in the Cooperative as their sole outlet for selling their tobacco crops for years. Appellants provide no citation to the record to support this contention, and our review of the existing record has yielded no such support.

Rigby testified in his deposition that he never trusted the Cooperative and only sold a portion of his tobacco to the Cooperative while he was a member. Beginning in 1984, Rigby also ran a tobacco warehouse and sometimes competed with the Cooperative to buy tobacco for resale. Carter testified in his deposition that he never spoke to a board member or other representative of the Cooperative when he was a member and placed no special trust in the Cooperative. He further testified that his claim is based on the government’s reduction of his quota or the amount of tobacco he was allowed to produce in the late 1970s or early 1980s and that he does not know what claim he has against the Cooperative. Lee testified in his deposition that he sold tobacco outside of the tobacco program, that he would sell it to another buyer if they were offering more than the Cooperative, that he felt no particular loyalty to the Cooperative, that he sold approximately 20-25 percent of his tobacco to the Cooperative before the price support program ended, and that he did not pursue an exclusive contract with the Cooperative in 2005 because he decided to stay with Philip Morris. In his deposition, Aldridge testified that he never met anyone from the Cooperative and did not trust the Cooperative. Aldridge testified at one point that he sold tobacco to the Cooperative and to other companies, but later testified that he sold his tobacco to Rigby through Rigby’s warehouse and does not know who bought it after that, whether it was the Cooperative or a tobacco company. Altman testified in his deposition that he did trust the Cooperative because it provided a place for their tobacco to be resold, but he never communicated or interacted with any board members or representatives of the Cooperative and he placed no special confidence in the Cooperative to do anything specifically for him.

The evidence in the existing record does not show that Appellants have reposed any “special confidence” in the Cooperative that would rise to the level necessary to impose fiduciary duties on the Cooperative. Accordingly, we conclude that summary judgment was properly granted on Appellants’ breach of fiduciary duty claim. See Dallaire, 367 N. C. at 368 (“record provides no basis for concluding that [appellants] reposed in the . . . loan officer the special confidence required for a fiduciary relationship”); see also Dalton, 353 N. C. at 652 (I) (trial court properly granted summary judgment on breach of fiduciary duty claim where evidence did not show one of essential components of any fiduciary relationship); Austin Maintenance & Constr. v. Crowder Constr. Co., 224 N. C. App. 401, 409-412 (II) (B) (742 SE2d 535) (2012) (fiduciary relationship between foreman and crew member only possible if crew member “reposed trust and confidence in [foreman], resulting in a situation in which [foreman] exercised ‘superiority and influence’ over [crew member],” and evidence did not demonstrate such a relationship).

2. Attorney fees and expenses claim.

Appellants contend that the trial court erred by granting summary judgment on their claim for attorney fees and expenses under OCGA § 13-6-11. But “[a] prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim.” United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996); see also Quantum Trading Corp. v. Forum Realty Corp., 278 Ga. App. 485, 490 (2) (629 SE2d 420) (2006) (“party may not recover litigation expenses and attorney fees under [OCGA § 13-6-11] unless he or she recovers damages on a substantive claim”) (footnote omitted). Because Appellants did not prevail on their only remaining claim, summary judgment was properly granted on their claim for attorney fees and expenses under OCGA § 13-6-11.

Decided November 3, 2016

Reconsideration denied November 18, 2016

Savage, Turner & Pinckney, Brent J. Savage, Kathryn H. Pinck-ney, for appellants.

Edenfield, Cox, Bruce & Classens, V. Sharon Edenfield, Gerald M. Edenfield; The Futch Law Firm, Kenneth E. Futch, Jr.; F. David McCrea, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       The first appeal in this case was Rigby v. Flue-Cured Tobacco Cooperative Stabilization Corp., 327 Ga. App. 29 (755 SE2d 915) (2014). Byron Carter was a party to the prior appeal, but his claims were dismissed with his consent prior to this appeal.

       Given our determination that summary judgment was properly granted to the Cooperative on Appellants’ breach of fiduciary duty claim, we need not address the statute of limitation issue.


author: DOYLE, Chief Judge.

text:
    A16A1121.
    HOSPITAL SPECIALISTS OF GEORGIA, P.C. v. GRAY et al.
    (794 SE2d 411)
   DOYLE, Chief Judge.

This case arises from the trial court’s denial of Hospital Specialists of Georgia, PC.’s (“HSG”), motion for summary judgment. Because we hold that the trial court correctly allowed the plaintiffs to substitute the name of one doctor for that of another doctor after the expiration of the statute of limitation, we affirm.

On December 19, 2011, John William Gray, Jr., (“the plaintiff”) filed a wrongful death action alleging that various instances of medical malpractice resulted in the death of his wife, Cynthia Gray. Cynthia, who was 55 at the time, had undergone total knee replacement surgery, but after surgery she aspirated into her lungs, developed acute respiratory distress syndrome, suffered a cardiac arrest, and then complete organ failure, eventually dying. Pertinent to this appeal, the plaintiff alleged in the complaint that Dr. Allen Garrison was an agent or employee of HSG, and Dr. Garrison violated the standard of care on or about January 2, 2010, as more fully stated in an attached affidavit, which violation resulted in Cynthia’s death. In that attached affidavit, Dr. Jeffrey Schwartz averred:

On January 2, 2010, at 9:30 a.m., Dr. Allen Garrison, who appears to be acting as the attending physician for Ms. Gray, ordered a consultation with pulmonologist Dr. Mark Hendricks, given that Ms. Gray had suffered pulmonary issues since her admission on December 31, 2009. . . . Dr. Hendricks did not appear [for the consultation].

Dr. Schwartz opined that a breach of the standard of care occurred when the pulmonologist failed to see Cynthia for ten hours subsequent to the initial consult order, and if that failure was caused by Dr. Garrison’s failure to follow up on the order, then Dr. Garrison breached the standard of care.

On January 11, 2012, after the complaint was filed, HSG’s counsel met with Dr. Garrison, and it was discovered that Dr. Janine Ellis was actually the HSG physician who had treated Cynthia during the pertinent time. HSG’s counsel contacted Dr. Ellis on January 23, 2012, and discussed the complaint and its contents, including the fact that Dr. Ellis and not Dr. Garrison was the doctor who had performed the acts that the complaint alleged to be negligent.

On August 3, 2015, HSG moved for summary judgment, contending that there was no record evidence of negligence on the part of Dr. Garrison, and the trial court should grant summary judgment in its favor.

On August 19, 2015, the plaintiff filed a second amended complaint in which it clarified that Dr. Ellis and not Dr. Garrison was the physician for whom HSG was vicariously liable because Dr. Ellis was the physician who had ordered the pulmonology consult on the morning of January 2, 2010. The affidavit of Dr. Robert Holloway was attached, and his opinion concluded (as had Dr. Schwartz’s affidavit) that Dr. Ellis was negligent in failing to have a pulmonologist treat Cynthia immediately. The plaintiff explained that the misnomer of Dr. Garrison was based on the signatures on the patient notes.

The trial court denied HSG’s motion for summary judgment on September 15, 2015, but issued a certificate of immediate review. This Court granted HSG’s application for interlocutory appeal, and HSG now argues that its motion for summary judgment should have been granted because the second amended complaint substituting Dr. Ellis for Dr. Garrison cannot relate back to the first amended complaint, therefore rendering it time barred, and because no record evidence exists to establish that Dr. Garrison violated the standard of care. We disagree.

Before the trial court and in its brief on appeal, HSG relies on Thomas v. Medical Center of Central Ga., in support of its argument that the claim against HSG cannot be amended to contend that Dr. Ellis rather than Dr. Garrison allegedly deviated from the standard of care when treating Cynthia on January 2 at 9:30 a.m. Thomas is inapposite to the case at hand.

Decided October 27, 2016

Reconsideration denied November 18, 2016

In Thomas, the plaintiff initially filed a complaint and supporting affidavit asserting a vicarious liability claim against the medical center defendant based on the alleged professional negligence of a doctor. After the expiration of the statute of limitation, the plaintiff attempted to add claims of vicarious liability based on the professional negligence of various nurses. This Court concluded that such a new claim of vicarious liability could not be added after the statute of limitation had expired because the plaintiff (1) failed to file any such claims previously, (2) failed to file any timely expert affidavit supporting claims of nursing professional negligence, and (3) failed to state in the original complaint any claim of ordinary negligence against the nurses that could have served as a basis of amending the complaint to add claims of vicarious liability for professional nursing negligence.

In this case, the plaintiff simply corrected a misnomer and asserted the exact same breach of the standard of care under the exact same facts, even providing the same time, date, and method by which the doctor was alleged to have breached the standard of care in treating Cynthia. The second amended complaint therefore met the standard of OCGA § 9-11-15 (c). HSG has not been surprised by the claim, and it was aware almost immediately; indeed, it notified Dr. Ellis about the malpractice allegations in the complaint within a month of service of the complaint. Moreover, the plaintiff has not attempted to add Dr. Ellis as a party defendant.

Finally, although it does appear that Dr. Schwartz’s deposition did not support a claim against Dr. Ellis for a breach of the standard of care for her actions on January 2, the plaintiff provided an additional amended expert affidavit supporting the claim, and that physician deposed that Dr. Ellis breached the standard of care beginning on January 2 at 9:30 a.m. Such an amended affidavit was permissible, and there is evidence of record creating a question of fact as to the issue of whether Dr. Ellis breached the standard of care.

Accordingly, we affirm the trial court’s denial of HSG’s motion for summary judgment.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Ken David & Associates, Vincent A. Toreno, Jennifer M. Smith, for appellant.

Kaufman Law, Mark L. Stuckey, for appellees.

       286 Ga. App. 147 (648 SE2d 409) (2007).

       See id. at 147-148.

       See id.

       Compare with Jensen v. Engler, 317 Ga. App. 879, 881-882 (1) (a) (733 SE2d 52) (2012).

       See Jensen, 317 Ga. App. at 883-884 (1) (b).