The employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency; he shall use like care in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto.
(Civil Code 1895, § 2611; Civil Code 1910, § 3130; Code 1933, § 66-301.)
Law reviews.- For article discussing origin and construction of Georgia provisions concerning master-servant relationship, see 14 Ga. L. Rev. 239 (1980). For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003). For survey article on labor and employment law, see 59 Mercer L. Rev. 233 (2007). For survey article on labor and employment law, see 60 Mercer L. Rev. 217 (2008). For annual survey of labor and employment law, see 61 Mercer L. Rev. 213 (2009). For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010). For annual survey on labor and employment law, see 64 Mercer L. Rev. 173 (2012). For annual survey on labor and employment law, see 65 Mercer L. Rev. 157 (2013). For annual survey on labor and employment law, see 66 Mercer L. Rev. 121 (2014). For annual survey on labor and employment law, see 67 Mercer L. Rev. 91 (2015). For annual survey on commercial transportation, see 69 Mercer L. Rev. 41 (2017). For annual survey on labor and employment law, see 69 Mercer L. Rev. 141 (2017). For annual survey on labor and employment law, see 70 Mercer L. Rev. 125 (2018). For note, "Publicly Funded Private Security: A Critical Examination of Georgia Law Pertaining to the Private Employment of Off-Duty Police Officers," see 51 Ga. L. Rev. 879 (2017). For comment criticizing Parry v. Davison-Paxon, 87 Ga. App. 51, 73 S.E.2d 59 (1952), see 4 Mercer L. Rev. 368 (1953).
JUDICIAL DECISIONSANALYSIS
General Consideration
Duties of master.
- As to place, appliances, instrumentalities, and fellow servants, the law places upon the master a personal or positive, sometimes called nondelegable, duty to provide for the employer's servant. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).
Nondelegable duty.- Duty required by this section is nondelegable. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).
Restatement of common law.- This section restated common-law care required of a master to a servant. Scott v. Crescent Tool Co., 306 F. Supp. 884 (N.D. Ga. 1969).
Workers' Compensation Act provides exclusive remedy.
- Employee could not bring a separate action against the employer independent of the exclusivity provisions of the Workers' Compensation Act (O.C.G.A. Ch. 9, T. 34) on the ground that the employer concealed work place hazards in violation of O.C.G.A. § 34-7-20, since the Act makes no statutory exception to the exclusive remedy provisions. Dugger v. Miller Brewing Co., 199 Ga. App. 850, 406 S.E.2d 484 (1991), cert. denied, 199 Ga. App. 905, 406 S.E.2d 484 (1991).
Duty of care inapplicable to selection of independent contractors.
- Statutory duty to exercise ordinary care in the selection of employees applies, by definition, to employees and not to those hired as independent contractors. Mason v. Gracey, 189 Ga. App. 150, 375 S.E.2d 283 (1988).
Contractee/contractor relationship.- Contractee has the right to rely on the presumption that a contractor will discharge the legal duties owing to the contractor's employee. Hodge v. United States, 310 F. Supp. 1090 (M.D. Ga. 1969), aff'd, 424 F.2d 545 (5th Cir. 1970).
Employer's safety officer shares employer's statutory immunity.
- In a contract with a subcontractor, as a person who was designated as the safety officer had the duty to supervise and inspect only in the person's capacity as the employer's representative but was not a party to the contract, the person shared statutory tort immunity under the Workers' Compensation Act (O.C.G.A. § 34-9-11) with the employer. Pardue v. Ruiz, 263 Ga. 146, 429 S.E.2d 912 (1993).
Stating cause of action.
- In suits for injuries arising from the negligence of the employer in failing to comply with the duties imposed by this section, the employee's petition in order to set forth a cause of action must set out issuable facts constituting not only negligence on the part of the employer, causing the injuries, but also due care on the part of the employee; and it must also appear from the allegations that the injured employee did not know, and had no equal means of knowing, all that which is charged as negligence to the employer, and by the exercise of ordinary care could not have known. A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963).
Injury as natural and probable consequence of negligence.
- Injury to a servant must be the natural and probable consequence of an employer's negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from the wrongdoer's act. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).
Equal means of knowing danger.
- In a suit by a servant for an injury arising from the negligence of the master in failing to furnish proper machinery or appliances or a safe place of work, the servant, to be entitled to recover, must show, among other things, that the servant did not have equal means with the master of knowing of the danger. Abercrombie v. Ivey, 59 Ga. App. 296, 200 S.E. 551 (1938).
Action brought under this section was one for negligence on the part of the master, and when it appears from the evidence that the servant has equal means with the master of knowing of the defects in machinery and the dangers of employment, and the danger is as obvious to the servant as it is to the master, the servant is not entitled to recovery, notwithstanding any assurances of safety by the master. Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).
Violation not negligence per se.
- Provisions of this section were too general and abstract for their violation by a master or employer to constitute negligence per se. A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963).
Limited liability.
- Liability of a master to a servant for negligence is strictly limited. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803, 117 S.E.2d 919 (1960).
Assumption of risk.
- Employee does not ordinarily assume the risk of negligence by an employer. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).
Provision of that section of former Code 1933, § 66-403 (see now O.C.G.A. § 34-7-43) which abolished the defense of the assumption of risk when there had been a violation by the common carrier of any statute enacted for the safety of the employees had reference to statutes specifically applicable to the operations and equipment of such carriers and was not intended to, and cannot properly, apply to the provisions of former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20). Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).
Employee has no absolute right of recovery but assumes ordinary risks of the employee's employment. Scott v. Crescent Tool Co., 306 F. Supp. 884 (N.D. Ga. 1969).
Denial of the employer's motion for summary judgment was reversed because any alleged defects in the tractor tire or in removing the tire were known to the employee who attempted to remove the tire on the employee's own, spent hours attempting to do so, encountering difficulty, and used various methods and tools to remove the tire before the employee apparently finally did so using a tool not provided by the employer. Smith v. Found, 343 Ga. App. 816, 806 S.E.2d 287 (2017), cert. denied, No. S18C0534, 2018 Ga. LEXIS 374 (Ga. 2018).
Standing in front of tractor operated by inexperienced driver.
- Employee who sued employer for personal injuries should have been aware that standing in front of a large farming tractor, parked on an incline, while a person wholly inexperienced in operating the machinery started the tractor and "eased" the clutch out, was dangerous and was not entitled to recover against the employer as a matter of law. Clayton v. Larisey, 190 Ga. App. 512, 379 S.E.2d 789 (1989).
Negligent hiring and retention claim.
- Employee's claim of negligent hiring and retention could not be used to circumvent the employment-at-will doctrine since the employment was for an indefinite period and was terminable at the will of either party to the employment relationship. Dong v. Shepeard Community Blood Ctr., 240 Ga. App. 137, 522 S.E.2d 720 (1999).
Because an employee's discrimination and retaliation claims against an employer failed on summary judgment, the derivative claim of negligent retention under O.C.G.A. § 34-7-20 also could not be sustained. Ekokotu v. Boyle, F.3d (11th Cir. Sept. 24, 2008)(Unpublished).
A Plaintiff former employee's negligent retention claim against the defendant former employer failed because it was derivative of the meritless harassment claims, which had failed under the subjective prong of the analysis as the conduct was relatively infrequent with only a few dozen comments or actions over 11 months, and rude and boorish behavior fell short of describing severe and pervasive harassment. Guthrie v. Waffle House, Inc., F.3d (11th Cir. Feb. 3, 2012)(Unpublished).
Former employee failed to establish negligent retention and hiring claim because there was no evidence that could lead a reasonable trier of fact to believe the employer was aware of any employees' past or prior conduct that would lead the employer to believe the employee could be harassed by the employee's supervisor and/or coworkers. Madrid v. Homeland Sec. Solutions Inc., 141 F. Supp. 3d 1351 (M.D. Ga. 2015).
Employment of minor.
- Child under age 14 assumes only such ordinary risks of employment as the child is capable of appreciating and understanding, and a master who, personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the child of the dangers incident to its performance, and in doing so must take into consideration the child's incapacity to appreciate and understand danger. The duty incumbent upon the child is to exercise due care according to the child's age and the child's own actual capacity, rather than the ordinary care exacted by the general rule of every prudent person. Moore v. Ross, 41 Ga. App. 509, 153 S.E. 575 (1930).
Since a minor 12 years of age does not as a matter of law possess the capacity to appreciate and apprehend dangers which are ordinarily patent and obvious to adult persons, an adult person, in ordering a minor of that age as a servant to work at a place and under circumstances when the minor is exposed to a danger which is patent and obvious to the employer, may in so employing the minor, be guilty of negligence. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).
Detour from duties.
- Servant may not wander at will to out of the way or dangerous places on premises, or use parts for purposes wholly disconnected from, and in no way pertaining to, the business in hand or the objects of the servant's employment; and if in doing so the servant is injured, the liability of the master is no greater than it would be to a mere licensee. Austin v. Henry Grady Hotel Co., 58 Ga. App. 861, 200 S.E. 466 (1938).
Duty owed to volunteers.
- One who, without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master, is a mere volunteer; and the master does not owe the servant any duty, except not to injure the servant willfully and wantonly after the servant's peril is discovered. Callaham v. Carlson, 85 Ga. App. 4, 67 S.E.2d 726 (1951).
Action for damages against employer.
- If the workers' compensation law does not apply to an "occupational disease" caused by injuries which are not the result of an accident and are not compensable under the provisions of the chapter, the employee may maintain an ordinary or common-law action for damages against the employer, provided a cause of action exists in the employee's favor under the law relating to the liability of a master, independently of the Workmen's Compensation Act (see now O.C.G.A. § 34-9-1 et seq.). Covington v. Berkeley Granite Corp., 182 Ga. 235, 184 S.E. 871, answer conformed to, 53 Ga. App. 269, 185 S.E. 386 (1936).
When a fast-food restaurant cashier struck a customer, then got into a fight with the customer, customer's premises liability claim against the restaurant failed; restaurant did not have knowledge that the cashier would engage in such conduct because the cashier had indicated in a job application that the cashier had not been convicted of a felony, and during three months that the cashier worked at the restaurant prior to the altercation, there was no evidence that the cashier ever argued with, much less struck, customers. Dowdell v. Krystal Co., 291 Ga. App. 469, 662 S.E.2d 150 (2008), cert. denied, 2008 Ga. LEXIS 787 (Ga. 2008).
Questions for jury resolution.
- Ordinarily, what constitutes ordinary care, or the lack of it, whether a servant assumed a risk which caused the injury, and similar questions, are mixed issues of law and fact peculiarly for jury resolution, and to some extent must be based on inferences to be drawn from the evidence. Jones v. Aaron, 124 Ga. App. 738, 186 S.E.2d 132 (1971).
Cited in King Mfg. Co. v. Walton, 1 Ga. App. 403, 58 S.E. 115 (1907); King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S.E. 252 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907); Seaboard Air-Line Ry. v. Chapman, 4 Ga. App. 706, 62 S.E. 488 (1908); Brown v. Rome Mach. & Foundry Co., 5 Ga. App. 142, 62 S.E. 720 (1908); Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223, 62 S.E. 1018 (1908); Southern Bell Tel. & Tel. Co. v. Covington, 139 Ga. 566, 77 S.E. 382 (1913); Rome Scale Mfg. Co. v. Harvey, 15 Ga. App. 381, 83 S.E. 434 (1914); Whitehurst v. Standard Oil Co., 8 F.2d 728 (5th Cir. 1925); Flippin v. Central of Ga. Ry., 35 Ga. App. 243, 132 S.E. 918 (1926); Fulton Bakery, Inc. v. Williams, 37 Ga. App. 780, 141 S.E. 922 (1928); Southern Ry. v. Jenkins, 39 Ga. App. 585, 147 S.E. 800 (1929); Tanner v. Louisville & N.R.R., 45 Ga. App. 734, 165 S.E. 761 (1932); Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934); Estridge v. Hanna, 55 Ga. App. 159, 189 S.E. 364 (1936); Paul v. Georgia R.R. & Banking Co., 60 Ga. App. 461, 4 S.E.2d 99 (1939); Story v. Crouch Lumber Co., 61 Ga. App. 210, 6 S.E.2d 86 (1939); Kidd v. Williamson, 61 Ga. App. 890, 8 S.E.2d 590 (1940); Davis v. Georgia Coating Clay Co., 63 Ga. App. 265, 11 S.E.2d 60 (1940); Daugherty v. Summerall, 64 Ga. App. 638, 13 S.E.2d 705 (1941); Harris v. Price, 95 Ga. App. 521, 98 S.E.2d 118 (1957); Martin v. Henson, 95 Ga. App. 715, 99 S.E.2d 251 (1957); Milam v. Miss Ga. Dairies, Inc., 118 Ga. App. 791, 165 S.E.2d 463 (1968); Webb v. Standard Oil Co., 414 F.2d 320 (5th Cir. 1969); Taylor v. Bolton, 121 Ga. App. 141, 173 S.E.2d 96 (1970); Dodd v. Clary, 135 Ga. App. 296, 217 S.E.2d 397 (1975); Barnes v. Allen Kane's Major Dodge, Inc., 148 Ga. App. 332, 250 S.E.2d 876 (1978); Butler v. Shirah, 154 Ga. App. 111, 267 S.E.2d 647 (1980); Ray v. Edwards, 557 F. Supp. 664 (N.D. Ga. 1982); Cherry v. Kelly Servs., Inc., 171 Ga. App. 235, 319 S.E.2d 463 (1984); Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241, 533 S.E.2d 119 (2000); McCrary v. Middle Ga. Mgmt. Servs., 315 Ga. App. 247, 726 S.E.2d 740 (2012); Barzey v. City of Cuthbert, 295 Ga. 641, 763 S.E.2d 447 (2014).
Selection of Employees
Competency of employees.
- The word "competent" should be given a comprehensive interpretation and include within its range of meaning all that "is essential to make up a reasonably safe person, considering the nature of the work, and the general safety of those who are required to associate with such person in the common general employment." Swift Mfg. Co. v. Phillips, 8 Ga. App. 425, 69 S.E. 585 (1910).
Selection of incompetent servants is an act of negligence as will authorize a cause of action in favor of any person who is injured as the direct and proximate result thereof. Elrod v. Ogles, 78 Ga. App. 396, 50 S.E.2d 791 (1948); Parry v. Davison-Paxon Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952). For comment, see 4 Mercer L. Rev. 368 (1953).
Employer's degree of care.
- Master is not required to anticipate that a servant may be negligent, and to warn the servant of dangers which may arise from the possible negligence of others. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905).
As the liability of the master depends on the exercise of ordinary care it is necessary to determine a standard, and the well established rule is that the master must exercise such care as every prudent person would exercise under the circumstances. This criterion, as to what would be done under the circumstances, varies according to the time, place, and conditions. Otis Elevator Co. v. Rogers, 159 Ga. 53, 125 S.E. 60 (1924).
Means a master could have been reasonably expected to take in order to prevent the driver of the master's automobile from causing a collision by improperly driving the automobile in the master's absence was the use of ordinary care in selecting the driver. Roberts v. Ethridge, 73 Ga. App. 400, 36 S.E.2d 883 (1946).
Inasmuch as negligence was the basis of the master's liability for injuries to the master's employees, recovery may be had only when the master failed to exercise ordinary care in the selection and retention of servants and this rule was further qualified and restricted by this section. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).
Duty of a master to select and retain only competent servants is not absolute, but is to be measured by knowledge, actual or constructive, of the probable results of the master's conduct. Likewise, when a servant has knowledge, or has an equal opportunity with the master to acquire knowledge, of the incompetency of servant's fellow servant there can be no recovery; in such a case the servant will be said to have "waived" the negligence of the master. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).
Nothing in the record showed that the hospital failed to exercise ordinary care in the hiring process or in its retention of the alleged sexual molester; therefore, summary judgment was properly granted in favor of the hospital. Bunn-Penn v. Southern Regional Medical Corp., 227 Ga. App. 291, 488 S.E.2d 747 (1997).
Trial court properly granted summary judgment to the health center on the patient's claim that it was responsible for the negligent hiring/retention of the mental health assistant who allegedly raped the patient, as the health center showed that it exercised ordinary care not to hire a person who posed a reasonably foreseeable risk of inflicting harm on others by hiring a professional investigation service to do a background check on the mental health assistant; as a result of that background check, the service advised the health center that the mental health assistant had not been involved in criminal activity and the patient did not show that the health center otherwise knew that the mental health assistant posed a risk of harm to its patients. Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 596 S.E.2d 604 (2004).
Because the screening protocols used by the defendant hospital and the hospital's officials in hiring a substance abuse counselor sufficiently satisfied the standard of care for hiring under O.C.G.A. § 34-7-20 in that an outside firms' criminal background check revealed no criminal activity, a drug screen showed no evidence of drug use, and no negative information was received upon attempts to contact prior employers, a claim of negligent hiring by the plaintiff patients, who alleged the counselor sexually harassed the plaintiffs, failed. Doe v. Fulton-DeKalb Hosp. Auth., 628 F.3d 1325 (11th Cir. 2010).
Jury question was presented as to a driver's claim for negligent hiring of a police officer because the city could have learned of a previous similar incident of drunkenness and belligerence if the city had contacted the officer's supervisor at the officer's prior employment as required by city operating procedures. Graham v. City of Duluth, 328 Ga. App. 496, 759 S.E.2d 645 (2014).
Leaving servant in dangerous emergency.
- There is a plain breach of the master's nondelegable duty when the master leaves the servant in a dangerous emergency through the lack of an adequacy of helpers. Sparta Oil Mill v. Russell, 6 Ga. App. 293, 65 S.E. 37 (1909).
Inadequacy of fellow servant and misrepresentation by master.
- See Beard v. Georgia Mfg. Co., 8 Ga. App. 618, 70 S.E. 57 (1911).
Psychological testing of employees.
- When an employee has absolutely no background of prior criminal or dangerous propensities and, during the employee's employment for a substantial number of years, the employee has had a good work record without a single complaint from customers, the employer may not be found negligent in hiring and retaining such an employee because of a failure to require such an employee to submit to psychological testing or interviews. Southern Bell Tel. & Tel. Co. v. Sharara, 167 Ga. App. 665, 307 S.E.2d 129 (1983).
Presumption that master's duty is discharged.
- It is always presumed that the master has discharged the master's duties to the servant, and this includes the duty to provide a sufficient force of competent workmen as well as all the other personal duties of the master. Baxley v. Satilla Mfg. Co., 114 Ga. 720, 40 S.E. 730 (1902).
When liability arises.
- Liability of a master arises because of the omission of the duty to provide competent fellow servants, and not because the negligence of the latter is, in law, imputable to the master. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 33 S.E. 961 (1899); Corcoran v. Merchants & Miners Transp. Co., 1 Ga. App. 741, 57 S.E. 962 (1907), later appeal, 4 Ga. App. 654, 62 S.E. 130 (1908); Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).
Proof of employer's negligence.
- Injured servant must show the following facts: (1) that the fellow servant was incompetent; (2) that the injury complained of resulted directly or proximately from such incompetency; (3) either (a) that the master knew of such incompetency, or (b) that by the exercise of ordinary care the master could have known of it; (4) that the injured servant did not know of such incompetency; (5) that by the exercise of ordinary care the injured servant could not have known of it; and (6) the servant did not have equal means with the master of acquiring knowledge of such fact. Camilla Cotton Oil & Fertilizer Co. v. Walker, 21 Ga. App. 603, 94 S.E. 855 (1918); Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).
Before recovery can be had against a master for negligently employing an incompetent fellow servant it must appear that the master knew, or by the exercise of due diligence should have known, of the incompetency at the time of the employment; or else that the master negligently retained such fellow servant after the master was fairly chargeable with knowledge of such incompetency. Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).
Summary judgment was granted to the defendant employer on the plaintiff employee's claim for negligent retention under O.C.G.A. § 34-7-20 because the plaintiff did not present evidence to create a genuine issue of material fact as to whether the defendant negligently retained the defendant's manager. Ekokotu v. Fed. Express Corp., 408 Fed. Appx. 331 (11th Cir. 2011), cert. denied, 132 S. Ct. 420, 181 L. Ed. 2d 260 (U.S. 2011)(Unpublished).
Trial court properly directed a verdict in favor of a hotel in a guest's suit against the hotel for negligent hiring and retention of a massage therapist, who allegedly sexually assaulted the guest, because the guest did not introduce evidence to show that the hotel knew or reasonably should have known that the massage therapist had a tendency to engage in behavior relevant to the guest's injuries. Tomsic v. Marriott Int'l, Inc., 321 Ga. App. 374, 739 S.E.2d 521 (2013).
Employer's knowledge of discrimination.
- School district was not liable under O.C.G.A. § 34-7-20 because there was no evidence to show that the district knew or should have known about the discriminatory tendencies of a superintendent as the employee did not inform the school board of the alleged discrimination until three days before the employee was terminated, nor was there evidence of complaints by other individuals. Palmer v. Stewart County Sch. Dist., F. Supp. 2d (M.D. Ga. June 17, 2005).
Sexual harassment.
- Court affirmed a district court's grant of summary judgment to an employer and a supervisor on two employees' O.C.G.A. § 34-7-20 claims of negligent hiring and retention of the supervisor, who allegedly sexually harassed the two employees; the employer was not put on notice of the supervisor's alleged propensity for sexual harassment by previous complaints that the supervisor stared at people and touched a co-worker's thigh, as such behavior was not considered to be sexual harassment, nor was there any evidence that these incidents were sexual in nature. Herron v. Morton, F.3d (11th Cir. Sept. 28, 2005)(Unpublished).
Servant's degree of care.
- Servant cannot recover if by the exercise of ordinary care the servant could have known of the incompetency. Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).
Speeding as indicating competency of employee.
- Trial court erred in granting an employer's motion for summary judgment in a widow's action to recover for the damages a driver sustained when the driver's car crashed into a tractor-trailer an employee had parked on the side of the road because a jury had to resolve the issues of whether the employee's moving violations, speeding, indicated that the employee would be an incompetent driver and whether the employer failed to exercise reasonable care in hiring and retaining the employee. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 709 S.E.2d 324 (2011).
Impact of failure of federal discrimination suit.- After an employee's federal national origin discrimination and retaliation claims failed, the employee's derivative state law claim of negligent retention and supervision failed because the contested conduct did not amount to a substantive violation of the federal statute. Ekokotu v. Fed. Express Corp., F.3d (11th Cir. July 15, 2013)(Unpublished).
Jury charge distinguishing negligence and incompetency.
- In a case so requiring, the distinction between the negligence of a competent servant and the unskillfulness of an incompetent servant should be clearly pointed out to the jury. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 33 S.E. 961 (1899).
Safety of Place of Work
Applicability of Workers' Compensation Act.
- When an employer and employee are under the provisions of the Workers' Compensation Act, a claim by the employee that the employer failed to furnish the employee with a safe place to work, even if wilfully done, is encompassed within the Act. Garrett v. K-Mart Corp., 197 Ga. App. 374, 398 S.E.2d 302 (1990).
Master's duty to insure safety.
- Among the nonassignable duties of the master is that of providing the servant a reasonably safe place to work. Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258, 47 S.E. 932 (1904); Turner v. Seville Gin & Whse. Co., 127 Ga. 555, 56 S.E. 739 (1907); Eagle & Phenix Mills v. Johnson, 131 Ga. 44, 61 S.E. 990 (1908); International Cotton Mills v. Webb, 22 Ga. App. 309, 96 S.E. 16 (1918).
Master is bound to make reasonable provision for the protection of the servant against dangers to which the servant is exposed while engaged in the work the servant is employed to perform. Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443 (1903); Jackson v. Merchants & Miners Transp. Co., 118 Ga. 651, 45 S.E. 254 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258, 47 S.E. 932 (1904).
Duty of the master to furnish a safe place for the servant to work is not absolute and unqualified. Some kinds of work are necessarily attended with dangers against which the master cannot by any degree of diligence provide. In such case the law does not require of the master impossibilities; but if, by exercising ordinary care, the master can make safe the place wherein the servant is to labor, it is the master's duty to do so. Merchants & Miners Transp. Co. v. Jackson, 120 Ga. 211, 47 S.E. 522 (1904); Otis Elevator Co. v. Rogers, 159 Ga. 53, 125 S.E. 60 (1924).
It is a master's duty to exercise ordinary and reasonable care to furnish a safe place to work. Whitehurst v. Standard Oil Co., 8 F.2d 728 (5th Cir. 1925); Holman v. American Auto. Ins. Co., 201 Ga. 454, 39 S.E.2d 850 (1946); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).
Master is under an absolute duty to a servant to furnish the servant a safe working place and to warn of unusual or newly developed dangers which arise in the course of the employment and which are likely to escape an ordinarily prudent servant's knowledge under the circumstances. The servant may, without creating an imputation of personal negligence, rely upon the master's performance of these duties until such time as the servant shall discover, or in the exercise of ordinary diligence should discover, that there has been a failure in this respect upon the master's part. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).
Employer is not the insurer of an employees' safety and is bound only to the exercise of reasonable care in this connection. Carter v. Callaway, 87 Ga. App. 754, 75 S.E.2d 187 (1953).
Master's specific duty of care.
- Master's specific duty to furnish a safe place to work relates to the equipment of houses, plants and other similar structures, though, of course, it is a general duty of the master, as to all times and all places, not to expose the servant to an extraordinary hazard, of which the master has knowledge, actual or constructive, and of which the servant is ignorant, and could not by ordinary diligence acquire knowledge. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).
Latent defects.
- Under this section "if there are latent defects in the construction of the place of work which are, or in the exercise of ordinary care could be, known to the master, and which are unknown to the servant, it is the duty of the master to warn the servant thereof." Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155, 95 S.E. 765 (1918).
Master's duty of inspection.
- When the presence of the defect in the premises is latent, the master is held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection; if its presence is hidden, the master would be bound to discover the fact sooner than the servant, because the duty of inspection rests upon the master and not upon the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933).
Places to which duty applies.
- Duty of the master to furnish a safe place to work is usually applied to a permanent place, or one which is quasi-permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant's labor, and when the work in its progress necessarily changes the character for safety of the place in which it is performed as it progresses. Upchurch v. Culpepper, 17 Ga. App. 577, 87 S.E. 834 (1916).
The general rule in regard to the duty of the master to furnish a safe place to work is not rendered inapplicable merely because the servant was engaged in construction work, and that at the time of the injury the object being constructed was in an unfinished state, to some extent changing from day to day. If it were otherwise, it would be difficult to find a case in which a servant was engaged in performing labor for a master and the rule would apply. Practically all labor normally tends to change the condition of the thing labored upon; otherwise it would be useless. Terry Shipbuilding Corp. v. Griffian, 153 Ga. 390, 112 S.E. 374 (1922); Tufts v. Threlkeld, 31 Ga. App. 452, 121 S.E. 120 (1923).
Church members.
- Summary judgment was not proper when a question of fact remained regarding member's competence to undertake a project and the evidence presented a question of fact as to whether a church negligently created a hazard on the property which precipitated a member's injuries. Piney Grove Baptist Church v. Goss, 255 Ga. App. 380, 565 S.E.2d 569 (2002).
Buildings.
- Master is not obligated to keep a building, which the master's servants are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants. Byrd v. Thompson, 146 Ga. 300, 91 S.E. 100 (1916).
City sewers.
- City acting under authority of its charter in the repairing or construction of sewers is bound to the same rule of diligence as to providing a reasonably safe place for its employees to work that applies in the case of a private contractor. City of Atlanta v. Trussell, 21 Ga. App. 340, 94 S.E. 649 (1917).
Platforms and scaffolds.
- Master is not, under the master's general duty of respecting the servant's safety, held to the same quantum of care in the erection of platforms and scaffolds intended only for temporary use as the master is in the building and maintenance of more permanent structures. Riverside Mills v. Brooks, 6 Ga. App. 67, 64 S.E. 282 (1909); Dunn & Bro. v. Morris, 132 Ga. 440, 64 S.E. 321 (1909).
Servant's reliance upon performance of duty.
- Pursuant to the provisions of this section, a servant can rely upon the performance of the duty of furnishing a safe place in which to work. Danger arising from an unsafe place is not included within the risks assumed by the servant. International Cotton Mills v. Carroll, 22 Ga. App. 26, 95 S.E. 472 (1918); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155, 95 S.E. 765 (1918); Tufts v. Threlkeld, 31 Ga. App. 452, 121 S.E. 120 (1923).
Servant has the right to assume that the servant's master has performed the duty of furnishing the servant with a safe place to work, and is under no obligation to inspect the same in order to discover latent defects not open to ordinary observation; a danger arising from an unsafe place is not included among the risks assumed by the servant and the duty of inspection rests upon the master and not upon the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933); Dessau v. Achord, 50 Ga. App. 426, 178 S.E. 396 (1935).
Servant can rely upon the performance of the duty of furnishing a safe place in which to work; danger arising from an unsafe place is not included within the risks assumed by the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).
Duty of servant.
- A servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933).
A servant or an employee is not required to make a special inspection of the condition of the working place furnished to the servant, but if, by exercising ordinary care, the servant can discover the condition of it, it is the servant's duty to do so. Spivey v. Lovett & Brinson, 48 Ga. App. 335, 172 S.E. 658 (1934).
Servant must exercise like care in discovering defects therein. Carter v. Callaway, 87 Ga. App. 754, 75 S.E.2d 187 (1953).
Evidence.
- When no facts were alleged to show that the defendant had knowledge that the dog on the premises was vicious, or that it would be unsafe for the employee to work in the house with the dog present, the employee failed to set out a cause of action because of the failure to allege facts showing the defendant knew, or should have known of the danger. Hays v. Anchors, 71 Ga. App. 280, 30 S.E.2d 646 (1944).
Jury charge.
- Charge to the jury which omits to qualify the word "safe" by "reasonably" is inaccurate, but will not constitute reversible error if the evidence is clear and convincing. Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10, 86 S.E. 260 (1915).
Safety of Tools and Machinery
Care of master in general.
- Master is not an insurer with reference to character of machinery. Merchants & Miners Transp. Co. v. Jackson, 120 Ga. 211, 47 S.E. 522 (1904).
It is not incumbent upon the master to procure the best and safest machinery which can be made. It is sufficient if the machinery is of a kind in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. Vinson v. Willingham Cotton Mills, 2 Ga. App. 53, 58 S.E. 413 (1907); Belk v. Lee Roy Myers Co., 17 Ga. App. 684, 87 S.E. 1089 (1916).
Master is bound to exercise ordinary care in furnishing machinery and appliances equal to those in general use, and reasonably safe for all persons who operate them with ordinary care and diligence in furtherance of the purposes for which such instrumentalities are intended and if the proximate cause of an injury consists in the failure of the master to perform the duty thus actually devolving upon the master, the master is liable to the injured servant, provided the servant, by the exercise of ordinary care, could not have prevented the injury personally. Walters v. Berry Schools, 40 Ga. App. 751, 151 S.E. 544 (1930).
While an employer is required to exercise ordinary care to furnish a safe place to work, the employer is not required to furnish the newest, safest, or best tools or methods of operation, or adopt extraordinary or unusual safeguards against risks and dangers. Hollingsworth v. Thomas, 148 Ga. App. 38, 250 S.E.2d 791 (1978).
Purposes for which machinery obtained.
- Ordinary diligence requires a master to furnish to the master's servant appliances reasonably suited for the uses intended, but the law does not exact of the master the extraordinary diligence which would be demanded if it were required that instrumentalities intended for one use should be safe and suitable for every unintended use to which they might be casually or unexpectedly applied. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438 (1904).
Appliances used for other than intended purpose.
- If the master requires a servant to use or knows that the servant will necessarily use, an appliance originally intended for another purpose, the servant will thereby be held responsible, as if the instrumentality had originally been intended for such new use. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438 (1904).
Defective tools.
- This section was now applicable in cases of injuries arising from defective tools. Williams v. Garbutt Lumber Co., 132 Ga. 221, 64 S.E. 65 (1909).
It is actionable negligence for a master to order a servant to work with an unsafe instrumentality, and an assurance of safety, coupled with the order, not only aggravates the master's negligence, but also relieves the servant from the assumption of the risk; the assurance of safety likewise makes the question of the servant's contributory negligence one for solution by the jury, unless the danger is so obvious that to undertake to encounter it amounts to plain rashness. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).
Given that an employee of a subcontractor who was injured in a fall from a ladder supplied by the contractor provided no evidence showing that the ladder was defective or that the contractor had actual or constructive knowledge of any such defect, the trial court erred in denying the contractor's motion for summary judgment. Lakeshore Contracting, LLC v. Lopez-Hernandez, 351 Ga. App. 232, 830 S.E.2d 561 (2019).
Negligent inspection or maintenance of appliances.
- Among the absolute duties of the master is that of making inspections for the discovery of defects and dangers in those instrumentalities within the range of which the servant is likely to come in the discharge of the servant's duties; hence, by law, the master ought to know of such defects as a reasonable inspection would disclose. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907), later appeal, 6 Ga. App. 153, 64 S.E. 494 (1909); Southern Bell Tel. & Tel. Co. v. Shamos, 12 Ga. App. 463, 77 S.E. 312 (1913); Spencer v. Lauer & Harper Co., 14 Ga. App. 35, 81 S.E. 387 (1913).
If the appliance actually furnished, even though not legally required, is or becomes dangerous for use by the servant, and by its own positive act, as distinguished from a harmless failure to act or function, injures the servant, the master will become liable for negligent inspection or maintenance, under recognized principles of the common law applicable in such cases. Southern Ry. v. Goree, 54 Ga. App. 134, 187 S.E. 297 (1936), later appeal, 57 Ga. App. 63, 194 S.E. 609 (1937).
A master owes a servant the duty of inspection. Rogers v. Bragg, 117 Ga. App. 295, 160 S.E.2d 217 (1968).
Employee's knowledge of defect.
- In a farm employee's action for negligence against an employer, there was no basis for a recovery under O.C.G.A. § 34-7-20, when the evidence was uncontroverted that the employee had equal knowledge with the employer of a defect in the "power takeoff" of the tractor, the employee's claim was barred by the plain language of O.C.G.A. § 34-7-23 and the trial court erred in giving a separate instruction on the liability for furnishing defective machinery which was not adjusted to the evidence. Strickland v. Howard, 214 Ga. App. 307, 447 S.E.2d 637 (1994).
Inspection for latent defects.
- When defects in machinery or appliances are such as to deceive human judgment, the master as well as the servant stands excused for a failure to discover them. Baxley v. Satilla Mfg. Co., 114 Ga. 720, 40 S.E. 730 (1902); Holland v. McRae Oil & Fertilizer Co., 134 Ga. 678, 68 S.E. 555 (1910).
Master who, after purchasing a permanent structure or plant for a particular business, puts a servant to work therein or thereon, is not liable to such servant for injuries sustained by reason of a latent defect therein, if the master has exercised ordinary and reasonable care to detect the latent defect and has failed to discover it. Atlantic & Birmingham R.R. v. Reynolds, 117 Ga. 47, 43 S.E. 456 (1903).
Master would be negligent, under this section, not to warn the servant of a latent defect, if the master knew, or by the exercise of ordinary care, could have known of its existence. Lawrenceville Oil Mill v. Walton, 143 Ga. 259, 84 S.E. 584 (1915).
In the case of the latent defects which are discoverable by proper inspection, the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).
Principle regarding latent defects is applicable also in the relationship of employer to independent contractor. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414, 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224, 173 S.E.2d 416 (1970).
In a case of latent defects (those which are only discoverable by proper inspection) the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Harris v. Strickland, 204 Ga. App. 889, 421 S.E.2d 91 (1992).
Trial court erred in giving the charge on the "equal means" of the plaintiff's child of knowing of the alleged defect in the tractor seat when there was no evidence that the plaintiff's child had actual knowledge of the allegedly defective tractor seat. There was no evidence that inspecting the tractor was part of the assigned duties of the plaintiff's child. Harris v. Strickland, 204 Ga. App. 889, 421 S.E.2d 91 (1992).
Loose bolt as latent defect.
- Looseness of the bolt attaching a seat to a mower frame which allowed it to slip out and thus permitted the seat to fall off was a latent defect. Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719, 275 S.E.2d 679 (1980).
Latent defect not in machinery itself.
- When the evidence does not show a latent defect in the machinery itself, but the evidence was sufficient to support appellees' theory that there was a latent defect in the manner in which the machinery was installed, or in the appellants' failure to install a warning device on the machinery, the trial court did not err in giving a jury charge under this section. McClurd v. Reddick, 135 Ga. App. 136, 217 S.E.2d 163 (1975).
Newly developed dangers.
- Master is under an absolute duty to the servant to warn the servant of any unusual or newly developed changes which arise in the course of the employment and which are likely to escape an ordinary prudent servant's knowledge under the circumstances. Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259, 58 S.E. 249 (1907).
Machinery to be repaired.
- When a master employed a servant not to work with machinery, but to repair it when defective or out of order, the provisions of this section did not apply to the machinery to be repaired. Green v. Babcock Bros. Lumber Co., 130 Ga. 469, 60 S.E. 1062 (1908).
Liability of master due to third person.
- If the master uses the instrumentality in the master's business, and so deals with it as to practically adopt it as the master's own, the master becomes, relative to a servant injured, the owner, and is under the same duty to the servant as an owner would be. Central of Ga. Ry. v. McClifford, 120 Ga. 90, 47 S.E. 590 (1904); Southern Bell Tel. & Tel. Co. v. Covington, 139 Ga. 566, 77 S.E. 382 (1913).
Inspection by servant.
- Servant is under no obligation to inspect appliances to discover concealed dangers which would not be disclosed by superficial observation. Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907), later appeal, 6 Ga. App. 153, 64 S.E. 494 (1909); Decatur Lumber Co. v. Fulton, 26 Ga. App. 499, 106 S.E. 609 (1921); Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).
Not only is it true that the duty of inspecting for defects which would not be disclosed by superficial observation is not primarily imposed upon a servant who is employed merely to operate a machine or to see that it is operated, except when the injured employee is an inspector, the master's means of knowledge of latent defects in the machinery furnished are primarily to be considered as greater than those of the servant. Decatur Lumber Co. v. Fulton, 26 Ga. App. 499, 106 S.E. 609 (1921).
Instruction of servants.
- Purpose of instruction by the master to inexperienced servants is to inform them of the danger. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905).
Instruction of servants is the nonassignable duty of the master. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907).
Master is bound to instruct inexperienced servants, without reference to their age, in the operation of machinery and appliances with which they are not acquainted. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907).
Servant's standard of care.
- If a danger is obvious and as easily known to the servant as to the master, the latter will not be liable for a failure to warn. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712, 68 S.E. 483 (1910); Tufts v. Threlkeld, 31 Ga. App. 452, 121 S.E. 120 (1923).
When a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).
If the danger from the continued use of a defective tool or instrument is so obvious or apparent that an ordinarily prudent person would not continue to use the instrument, a servant, although the servant may have received assurances of safety from the master, may not continue its use and hold the master liable for ensuing injury, as the use by the servant of an obviously dangerous instrument amounts to the failure to use ordinary care to avoid the consequences of the master's negligence. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).
Compliance with master's specific command.
- Servant is bound to obey a master's order unless the command includes a violation of the law, or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it and when the master personally gives the order and the servant obeys it, and is injured as a consequence thereof, of course, the master is liable. Padgett v. Southern Ry., 48 Ga. App. 214, 172 S.E. 597 (1934).
Whether or not a master is negligent in ordering a servant to work under dangerous and hazardous conditions may depend upon the capacity of the servant, due to the servant's age or otherwise, known to the master, to appreciate the danger of the conditions of the employment. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).
If an order was negligent and the servant knew of the peril of complying with it, or if the servant had equal means with the master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then the servant could not recover for an injury received in complying with the order. Abercrombie v. Ivey, 59 Ga. App. 296, 200 S.E. 551 (1938).
In an action for injuries to a servant resulting from the servant's compliance with a direct and specific command of the master given with reference to an instrumentality by which the master's work is to be performed, the danger or risk incurred by the servant is not assumed by virtue of the employment, unless it involves a violation of law or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).
If a servant points out a danger and the master orders the servant to pursue a dangerous activity anyway, the master is liable for any injury which results. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).
Master's assurance of safety.
- When the master says, "it is safe," the law will construe these words as such a warranty that a breach of it will release the servant from the assumption of the risk. Dessau v. Achord, 50 Ga. App. 426, 178 S.E. 396 (1935).
Employee, in using a defective appliance furnished the servant by the master, does not necessarily assume the risk when the servant is assured by the master that the appliance is in a safe and proper condition for use. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).
When the master commanded the servant to proceed with work which the master knew was dangerous with the assurance to the servant that it was not dangerous, such act on the part of the master relieved the servant of the implied agreement of assumption of risk as to the particular activity warranted as safe, and the master cannot set up as a defense the assumption of risk set forth in former Code 1933, § 66-303 (see now O.C.G.A. § 34-7-23). Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).
Servant cannot reasonably rely on a master's "assurances" that a hazardous condition will be corrected, and a servant must bear the loss from any injury resulting from obvious dangers, despite the fact that the servant's actions were sanctioned by the master. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).
Assumption of risk.- When a servant for 20 years voluntarily undertook the duty of climbing a ladder which the servant described as a very dangerous activity and knew to be risky, the employer is not liable despite the employer's assurances to the servant that the ladder's dangerous condition would be repaired, since the servant assumed the risk. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).
Suspension of assumption of risk.
- Fault or "assumption of risk" implied from a servant's knowledge that a tool, instrument, appliance, piece of machinery, or place of work is defective or dangerous is suspended by the master's promise to repair, made in response to the servant's complaint, so that if the servant is induced by such promise to continue at work, the servant may recover for any injury which the servant sustains by reason of such defect within a reasonable time after the making of the promise. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).
Abrogation of assumption of risk.
- While ordinarily the law reads into contracts of employment an agreement on the servant's part to assume the known risks of the employment so far as the servant has the capacity to realize and comprehend them, this implication may be abrogated by an express or implied agreement to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands the servant to proceed with the work and assures the servant there is no danger, the law implies a quasi-new agreement whereby the master relieves the servant of the servant's former assumption of the risk and places responsibility for the ensuing injury upon the master. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).
When a servant complained to the master that the instrumentality supplied by the master for the servant to accomplish the servant's assigned task appeared to be dangerous, and thereupon the master commanded the servant to proceed with the work, and assured the servant there was no danger, then, unless the danger was so obvious and manifest that no prudent person would expose himself thereto, the law implied a quasi-new agreement whereby the master relieves the servant from the servant's former assumption of risk under former Code 1933, § 66-303 (see now O.C.G.A. § 34-7-23) and placed responsibility for resulting injuries upon the master. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).
Employee's appreciation of danger bars action.
- If a servant's knowledge of danger is equal to that of the master, a nonsuit is proper. Central of Ga. Ry. v. Henderson, 6 Ga. App. 459, 65 S.E. 297 (1909).
Although an employee may have had knowledge, as of a physical fact, of the defective condition of a tool, appliance or place, by reason of which the employee has sustained an injury, it by no means follows that the employee must have appreciated the danger to which the employee was exposed thereby; if this is shown to have been the case, the employee's right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936); Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).
It is the employee's appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. When, however, a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).
Pleadings.
- Deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).
Defect may be described by showing that a machine was in a condition that produced certain definitely described results, which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).
Motion to dismiss.
- When in a suit for personal injuries it is manifest from the allegations of the plaintiff's petition that the plaintiff had at least equal opportunities with the master (the defendant) of discovering the defective condition of an appliance from which the injuries complained of resulted, a general demurrer (now motion to dismiss) to the petition was properly sustained. Lee v. Atlantic C.L.R.R., 125 Ga. 655, 54 S.E. 678 (1906).
Jury question as to master's liability.
- It was for the jury to determine whether, under the alleged misrepresentations and commands of the alter ego of the master, given to the servant with reference to the manner and instrumentality by which the master's work was to be done, and under the master's assurance of safety given to the servant, the injury sustained by the servant resulted from the alleged negligent misrepresentations and commands by the master; and, if so, whether the servant, in acting upon the misrepresentations and obeying the commands, was exercising ordinary care for the servant's own protection. Padgett v. Southern Ry., 48 Ga. App. 214, 172 S.E. 597 (1934).
Safety of Materials and Danger of Disease
Employee's knowledge.
- Employee is not presumed to have knowledge of the hidden dangers requiring scientific knowledge to fully appreciate, or to assume risk thereof; unless the employee is warned or undertakes the work with such knowledge, the employee is not as a matter of law chargeable therewith. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).
Master's duty to warn.
- Master is conclusively presumed to have knowledge of the nature of the constituents and general characteristics of the substances and things used in the master's business, which frequently makes the knowledge implied against the master superior to that implied against the servant as to things used in connection with the master's business. Having such knowledge, the master is under a duty to warn the servant of the dangers involved. Genesco, Inc. v. Greeson, 105 Ga. App. 798, 125 S.E.2d 786 (1962).
When there are dangers incident to the employment, unknown to the servant, of which the master knows or ought to know, the master is under a duty to give warning thereof. Rogers v. Bragg, 117 Ga. App. 295, 160 S.E.2d 217 (1968).
Duty to warn of disease.
- Master must warn a servant of the conditions under which the servant is employed which are liable to engender disease, and must furnish suitable protection from such danger, provided that the master is in a position to have greater knowledge of the danger than the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).
Employer's liability for disease.
- Although the defendant hospital was not an insurer of the safety of its employees, it had the duty to use reasonable care to protect them against the dangers of employment which might reasonably be expected to produce disease, and would be liable to the plaintiff employee for a disease contracted in the course of employment, when the disease was brought about by the negligence of the employer. Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966); Miss Ga. Dairies, Inc. v. McLarty, 114 Ga. App. 259, 150 S.E.2d 725 (1966).
Assumption of skill.
- Under the "assumption of skill" doctrine, whereunder the master's technical or scientific knowledge of the master's business makes the knowledge implied to the master superior to that implied against the servant as to matters in connection with the business, the master is under a duty to warn the servant of the dangers involved. Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966).
Servant's Torts
Employer's liability for servant's tort.
- In determining the liability of a master for the negligent or willful acts of a servant, the test of liability is not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of the servant's employment. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).
When a servant departs from the prosecution of the servant's business and commits a tort while acting without the scope of the servant's authority, the person employing the servant may still be liable if the person failed to exercise due care in the selection of the servant. Pope v. Seaboard Air Line R.R., 88 Ga. App. 557, 77 S.E.2d 55 (1953).
Servant's independent voluntary act.
- If a servant steps aside from the master's business, for however short a time, to do an act outside the scope of and not in furtherance of the work of the servant's employment, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).
When a servant, while engaged in the line of the servant's duties for the servant's master, commits an assault and battery upon another because of a personal quarrel or some provocation previously existing or suddenly arising, and disconnected with and not pertaining to the business of the master then in the process of transaction, the master is not liable. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).
Negligent retention of hospital nurse.
- In a patient's suit against a hospital arising out of a rape by a nurse, summary judgment was proper on the patient's negligent hiring claim, but the patient's negligent retention and premises liability claims were supported by evidence of past sexual assaults at the hospital, including one incident of inappropriate touching by the nurse. Little-Thomas v. Select Specialty Hospital-Augusta, Inc., 333 Ga. App. 362, 773 S.E.2d 480 (2015).
Jury question as to scope of employment.
- Except in plain and palpable cases, it is for the jury to decide the question whether the servant was acting within the scope of and in furtherance of the servant's employment when the servant committed the tortious act in question. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Employment Relationship, §§ 189 et seq., 217 et seq., 241 et seq., 333 et seq.
C.J.S.- 30 C.J.S. Employers' Liability for Injuries to Employees, §§ 39 et seq., 71 et seq.
ALR.
- Duty to warn servant of danger of cleaning, adjusting or repairing machinery while in motion, 3 A.L.R. 1035.
Duty of master to warn servant against occupational disease, 6 A.L.R. 355; 105 A.L.R. 80.
Negligence of master toward fellow servant in employing a servant who is physically deficient, 11 A.L.R. 783.
What is embraced by words "works," "ways," "equipment," "machinery," etc., in employers' liability acts, 23 A.L.R. 716.
Duty and liability of master to servant injured by horse belonging to master, 26 A.L.R. 871; 42 A.L.R. 226; 60 A.L.R. 468.
Liability of master to common-law employee for injury inflicted by instrumentality of master used by another employee in sport, 30 A.L.R. 693.
Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477.
Master's duty to servant to prevent continuance of dangerous sports, 40 A.L.R. 1333.
Liability of independent contractors for injuries to third persons by defects in completed work, 41 A.L.R. 8; 123 A.L.R. 1197.
Recovery by commission salesman given exclusive territory where employer breaches contract of employment, 41 A.L.R. 1175.
Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.
Liability of the contractee for injuries sustained by the contractor's servants in the course of the stipulated work, 44 A.L.R. 932.
Liability of master for injuries to servant from exposure to weather conditions, 52 A.L.R. 904.
Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.
Liability of employer for consequences of vaccination or other bodily operation to which employee is subjected, 62 A.L.R. 195.
Liability of master for injuries inflicted on one servant by another by use, maliciously or in sport, of compressed-air device, 62 A.L.R. 1433.
Right, as against vehicle owner, of one not in his general employment injured while assisting in remedying conditions due to accident to automobile or truck on highway, 72 A.L.R. 1283.
Statute denying to employer defense of assumption of risk as affecting simple tool rule, 91 A.L.R. 786.
Inadequacy of appliance for purpose contemplated by Safety Appliance Act as proximate cause of and ground of liability for injury to employee who was using it for another purpose, 96 A.L.R. 1138.
Inference of master and servant relationship and scope of authority in action for negligent injury from fact that person whose acts or statements are relied upon was apparently performing services for defendant upon latter's premises, 112 A.L.R. 337.
Responsibility for injury or damage by or to W.P.A. worker or other workman employed as a means of reducing unemployment, 120 A.L.R. 1148.
Employer's compliance with specific legal standard prescribed by or pursuant to statute for equipment, structure, or material, as defense to charge of negligence, 159 A.L.R. 870.
Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.
Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982.
Liability in damages for injury to or death of window washer, 17 A.L.R.2d 637.
Duty of owner of premises to furnish independent contractor or his employee a safe place of work, where contract is for repairs, 31 A.L.R.2d 1375.
Liability of employer, other than carrier, for a personal assault upon customer, patron, or other invitee, 34 A.L.R.2d 372.
Failure to furnish assistance to employee as affecting employer's liability for injury or death of employee, 36 A.L.R.2d 8.
Duty of railroad company to prevent injury of employee due to surface condition of yard, 57 A.L.R.2d 493.
Master's liability for servant's injury or death caused in whole or in part by act of God, 62 A.L.R.2d 796.
Master's liability to servant injured by farm machinery, 67 A.L.R.2d 1120.
Master's liability for servant's condition or injury resulting in dermatitis, 74 A.L.R.2d 1029.
Hammer as simple tool within simple tool doctrine, 81 A.L.R.2d 965.
Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.
Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.
Private person's duty and liability for failure to protect another against criminal attack by third person, 10 A.L.R.3d 619.
Physician's duties and liabilities to person examined pursuant to physician's contract with such person's prospective or actual employer or insurer, 10 A.L.R.3d 1071.
Liability of travel agents for injuries on tour, 53 A.L.R.3d 1310.
Liability for injury or death of participant in theatrical performance or spectacle, 67 A.L.R.3d 451.
Tort liability for window washer's injury or death, 69 A.L.R.4th 207.
Liability of travel publication, travel agent, or similar party for personal injury or death of traveler, 2 A.L.R.5th 396.
What constitutes "agricultural" or "farm" labor within social-security or unemployment-compensation acts, 60 A.L.R.5th 459.
Who is "employer" for purposes of Occupational Safety and Health Act (29 U.S.C.A. § 651 et seq.), 153 A.L.R. Fed. 303.
Technological feasibility as factor affecting validity of, or obligation of compliance with, standards established under Occupational Safety and Health Act (29 U.S.C.A. §§ 651 et seq.), 72 A.L.R. Fed. 2d 461.