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Glover v. Ware12/9/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
Annie Laura Glover, the mother and administrator of the estate of Willie Fred Glover, sued Charles Ware, a landscaper, and his business entity, Old BW Landscaping, Inc., for wrongful death after Willie Fred Glover fell off the back of a flatbed truck and was crushed by a mulching machine being towed behind the truck. The trial court granted the defendants' motion for summary judgment based on the exclusive remedy provision of the Workers Compensation Act, OCGA ยง 34-9-11 (a). Annie Glover appeals, and for the reasons that follow, we reverse the trial court's grant of summary judgment.
On appeal we review the trial court's grant of summary judgment used later to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Preferred Real Estate Equities v. Housing Systems, 248 Ga. App. 745 (548 SE2d 646) (2001). Further, when ruling on a motion for summary judgment, a court must give the opposing party the benefit of all reasonable doubt, and the evidence and all inferences and conclusions therefrom must be construed most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). On motions for summary judgment, however, courts cannot resolve the facts or reconcile the issues. Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, Inc., 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).
The evidence submitted with the motion for summary judgment and the opposition to the motion shows that Willie Glover lived in a trailer on defendant Charles Ware's farm, and received social security disability insurance that was paid to Ware on Glover's behalf. Ware explained that he grew up with Glover, helped him get on disability, and offered him a place to live after his father died. He took care of all of Glover's needs, including food, shelter, clothing, and spending money, the cost of which exceeded Glover's monthly disability payments. Although he was only two years older, Ware said he was a kind of father figure to Glover.
Ware owns Old BW Landscaping, a small business that mainly worked for municipalities and the state doing erosion control and grass seeding. One of the contract requirements for state and city jobs was that Ware had to maintain general liability insurance, workers compensation insurance, and vehicle insurance.
On the day of the accident, Glover drove or rode in a company van to Ware's job site. Ware said Glover did not accompany him as an employee but was only along for the ride. When one of Ware's crew did not show up, Ware asked Glover if he would help out, and Glover agreed. The two men did not discuss compensation , nor had Glover ever worked for Ware before. While Ware drove the flatbed truck, three men, including Glover, moved bales of hay from the truck bed onto the conveyor of the mulching machine, which another man was operating. As Ware started up a gentle slope at a rate of one to two miles per hour, Glover lost his balance and fell off the back of the truck. The mulching machine ran over him as the crewmen yelled to Ware to stop the truck. Emergency medical personnel were called to the scene, but Glover was pronounced dead shortly after he arrived at Grady Hospital.
After the incident, Ware contacted his workers compensation insurance c
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