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Webb v. Day6/1/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
Marvin Webb appeals from the trial court's grant of summary judgment to Don W. Day and Don W. Day Construction Co. Inc. on Webb's personal injury claim. We find no error and affirm.
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the non-movant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).
Viewed in the light most favorable to Webb, the evidence shows that Day entered into an oral agreement with Pike Creek Turf Farms ("Pike Creek") to build a house on its property. Pike Creek agreed to compensate Day by the hour plus costs. Day furnished his own work crew to perform the carpentry, and subcontracted the electrical, plumbing, and roofing work.
Day rented a forklift, which was delivered to the Pike Creek construction site on June 1, 1999. Pike Creek reimbursed Day for the cost of renting the forklift. Day told the rental company that he intended to use the forklift to put decking on the house, and that Pike Creek could use the machine for trimming tree limbs. A representative of the rental company explained the operation of the forklift to Day, including a leveling indicator located on the windshield. Day then used the forklift to put the decking on the house. Day also used the forklift to lift a Pike Creek employee, Dake Boling, into the air so that Boling could trim limbs from two oak trees.
On June 2, 1999, Day left the construction site around 4:00 p.m. After Day left, Boling decided to use the forklift to trim tree limbs on the Pike Creek premises. Boling believed that the forklift was available for use by Pike Creek employees and had previously spoken to Day about using the machine. Day was certain that he told Boling about the level indicator located on the windshield post, although Boling deposed that Day did not explain how to level the forklift.
Boling asked for Webb's assistance in trimming the tree limbs. He deposed that trimming hazardous limbs was part of his job in maintaining the farm, and he was the person who made the decision to trim the limbs. Webb got onto a plyboard platform which had been previously attached to the forks of the forklift by Day and his crew, and Boling used the forklift to raise Webb 30 feet or more into the air so Webb could reach the tree limbs. When Webb was using his chainsaw to trim limbs off of a pine tree, the forklift tipped over. Webb fell to the ground and was injured.
1. Webb contends the trial court erroneously found that his affidavit contained inadmissible hearsay. We disagree.
In his affidavit, Webb averred that " hen I arrived at the construction site, Dake Boling informed me that Don Day asked him to cut some tree limbs which were close to the house so that Day would be able to continue constructing the roof the following day." Though Webb admits that the statement is hearsay, he contends nonetheless that Boling was acting as Day's agent and that Boling's statement was admissible as a statement of a party opponent under OCGA § 24-3-33.
"Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." (Ci
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