Browning-Ferris Industries of Georgia, Inc. v. Pitts

McMURRAY, Presiding Judge. Maijorie Pitts was severely injured after her car struck a residential trash container that rolled into her oncoming car’s traffic lane. This appeal followed entry of a favorable judgment for Pitts on a $200,000 jury verdict against the City of Canton’s (“the City”) waste management contractor, Browning-Ferris Industries of Georgia, Inc. (“BFI”). We affirm because the evidence authorizes the jury’s verdict. The evidence adduced at trial, construed so as to uphold the jury’s verdict (Flournoy v. Brown, 226 Ga. App. 857, 861 (4) (487 SE2d 683)), reveals that BFI owned the trash container in question and assigned it for use (weekly curbside garbage pickups) at a residence adjacent to the collision scene; that the occupant of this residence placed the trash container in or near the roadway upon vacating the premises two weeks before the collision, and that this container obstructed traffic until the collision. The evidence also reveals that BFI employees serviced (emptied or checked) the trash container on two separate occasions before Pitts’ collision; that the container was “just over the [road’s] white line” a few hours before the collision, and that a truck swerved to avoid this hazard moments before Pitts’ car hit the container. Eyewitness testimony reveals that this truck’s maneuver somehow caused BFI’s wheel-equipped garbage can to roll directly into the path of Pitts’ car, and that road conditions at the time of the collision provided Pitts no safe opportunity for avoiding the hazard. Held: BFI contends the trial court erred in denying its motions for directed verdict, arguing that the undisputed evidence shows that [27] the occupant of the residence where the subject trash container was assigned was obliged to look after the container and was, therefore, solely responsible for the hazard which caused Pitts’ collision. The threshold question of BFI’s legal duty toward Pitts cannot be assigned according to BFI’s or the City’s agreement with the occupant of the residence where the subject trash can was assigned. “The legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693). The requisite inquiry is therefore whether, under the particular circumstances in the case sub judice, Pitts’ injuries can be fairly attributed to BFI’s conduct. That is, do the facts authorize the jury’s finding that BFI unreasonably exposed Pitts to a foreseeable risk of harm? See Ellington v. Tolar Constr. Co., 237 Ga. 235, 237-238 (227 SE2d 336). To this issue, we observe testimony indicating that BFI instructed its employees to watch out for and remove any BFI trash container they found in the roadway during their regular garbage collection activities and that BFI employees serviced the trash container in question (and presumably observed it in the roadway) two days before the collision, but that they did not then remove the hazard from the road. This evidence, and proof that BFI employees were or should have been aware that the subject trash can was in the roadway and obstructing traffic two days before the collision, authorizes the jury’s finding that BFI breached a common law duty to remove a foreseeable hazard from the roadway and that this failing was a proximate cause of Pitts’ damages. See Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 511 (317 SE2d 853). BFI’s argument that any negligence on its part was too remote to be a proximate cause of Pitts’ collision was a matter which was properly left for jury resolution. See id. Questions of negligence, contributory negligence, and proximate cause are, except in plain, palpable and indisputable cases, for the jury. Duncan & Stancil, Inc. v. Peden, 159 Ga. App. 77, 79 (282 SE2d 708). The trial court did not err in denying BFI’s motions for directed verdict. Judgment affirmed. Pope, P. J., Smith, Ruffin and Eldridge, JJ, concur. Johnson, C. J., and Andrews, P. J., dissent.