Strozier v. Herc Rentals, Inc.

596 F.Supp.3d 1336

Norman STROZIER, Plaintiff,

v.HERC RENTALS, INC. and JLG Industries, Inc., Defendants.

CIVIL ACTION NO. 1:19-CV-01083-JPB

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 31, 2022

David L. Kwass, Elizabeth A. Bailey, Pro Hac Vice, Saltz, Mongeluzzi, Barrett & Bendesky, PC, Philadelphia, PA, James N. Sadd, Slappey & Sadd, Atlanta, GA, Michael James Eshman, Eshman Begnaud, LLC, Decatur, GA, for Plaintiff.

Anthony P. Steinike, Pro Hac Vice, Quarles & Brady, LLP, Chicago, IL, Keely Morton, Pro Hac Vice, Quarles & Brady, LLP, Naples, FL, Wayne Stephen Tartline, Bovis, Kyle, Burch & Medlin, LLC, Atlanta, GA, for Defendant HERC Rentals. Inc.

Joseph P. Trabucco, III, Stephen D. Menard, Trabucco & Menard, PLLC, Plymouth Meeting, PA, Marlo Orlin Leach, Leach & Lowe, LLC, Atlanta, GA, for Defendant JLG Industries, Inc.

ORDER

J.P. BOULEE, United States District Judge

This matter is before the Court on Herc Rentals, Inc.’s ("Defendant") Motion for Summary Judgment [Doc. 122]. This Court finds as follows:

RELEVANT PROCEDURAL HISTORY

Norman Strozier ("Plaintiff") filed this action against Defendant and JLG Industries, Inc. on March 7, 2019. [Doc. 1]. Plaintiff asserted the following claims against Defendant: (1) ordinary negligence; (2) negligent entrustment; (3) negligent bailment; (4) breach of express warranties; and (5) breach of implied warranties. Id. On May 7, 2021, Defendant moved for summary judgment as to all counts. [Doc. 122]. In his response, Plaintiff did not address Defendant's arguments pertaining to the counts involving the breach of express or implied warranties. [Doc. 126]. "Failure to respond to the opposing party's summary judgment arguments regarding a claim constitutes an abandonment of that claim and warrants the entry of summary judgment for the opposing party." Burnette v. Northside Hosp., 342 F. Supp. 2d 1128, 1140 (N.D. Ga. 2004). Because Plaintiff abandoned his warranty claims, Defendant's Motion for Summary Judgment is GRANTED as to Counts 4 and 5. Thus, in the analysis that follows, the Court will only analyze whether Defendant is entitled to summary judgment as to Plaintiff's claims for negligence, negligent entrustment and negligent bailment.

BACKGROUND

The Court derives the facts of this case from Defendant's Statement of Material Facts [Doc. 122-2], Plaintiff's Response to Defendant's Statement of Material Facts [Doc. 126-2], Plaintiff's Statement of Additional Material Facts [Doc. 126-3] and Defendant's Response to Plaintiff's Statement of Additional Material Facts [Doc. 132]. The Court also conducted its own review of the record.

In accordance with the Local Rules, this Court will not consider unsupported facts. The Court will, however, use its discretion to consider all facts that the Court deems material after reviewing the record. The facts of this case, for the purpose of adjudicating the instant motion, are as follows:

Defendant is an equipment rental company. Daystar is a construction company operating in Atlanta, Georgia. [Doc. 122-2, p. 2]. Over an approximate twelve-year period and on twenty-four separate occasions, Daystar rented various pieces of equipment from Defendant. Id. Ten of the twenty-four rentals were for boom lifts. Id.

On April 25, 2017, John Young, the owner of Daystar, rented a JLG 800A Boom Supported Aerial Platform (the "Subject Lift") from Defendant. Id. Daystar planned to use the Subject Lift to replace fascia boards near the roof of an apartment complex. Id. at 5. Per Mr. Young's instructions, Defendant's delivery driver delivered the Subject Lift to a location near the leasing office of the apartment complex. Id. at 3. No one from Daystar was present to accept delivery. Id.

Later in the morning after the Subject Lift was delivered, Mr. Young and Daystar's employees (Plaintiff, Ronald Stillwell and Derrick Douglas) arrived to perform the fascia work. Id. No one from Daystar was able to get the Subject Lift to operate, and as a result, Mr. Young called Defendant for assistance. Id. at 4.

Defendant dispatched John Adams, a service technician, to assist Daystar. Id. It was Mr. Adams's practice to show customers how the machines worked if they had questions about its operation. [Doc. 132, p. 11]. Mr. Adams determined that Mr. Young could not operate the Subject Lift because Mr. Young had failed to pull up the lock ring on the drive steer controller. Id. at 12. While on scene, Mr. Adams tested the lift and operated it without issue. [Doc. 126-2, p. 6]. He also showed Mr. Young how to use the ground controls and the controls from the basket. Id. at 7. Before leaving, Mr. Young assured Mr. Adams that he knew what he was doing. [Doc. 122-13, pp. 94-95]. Relatedly, Mr. Young had previously told the delivery driver that he had "operated these things 100 times before." [Doc. 122-7, p. 74].

After Mr. Adams left, Mr. Stidwell drove the lift approximately one block to the area where the fascia work was to be performed. [Doc. 122-2, p. 5]. Initially, Mr. Stidwell parked the Subject Lift on the road. [Doc. 132, p. 18]. When parked on the road, however, the boom did not reach the work area along the roofline of the apartment building. Id. As a result, Mr. Stidwell drove the lift onto a sloped grassy area closer to the apartment building. Id. at 19. With Plaintiff and Mr. Douglas in the basket of the Subject Lift, one of the Daystar personnel attempted to raise the boom to the work area. Id. Thereafter, the Subject Lift made a clicking noise, and the Subject Lift tipped over. Id. As the Subject Lift tipped, Plaintiff and Mr. Douglas, neither of whom were wearing fall harnesses, were thrown from the lift. [Doc. 122-2, p. 6]. Plaintiff suffered personal injuries, and Mr. Douglas died.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A material fact is any fact that "is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). A genuine dispute exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Ultimately, "[t]he basic issue before the court on a motion for summary judgment is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ " Allen, 121 F.3d at 646 (citation omitted).

The party moving for summary judgment bears the initial burden of showing that no genuine issue exists as to any material fact, "and in deciding whether the movant has met this burden the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party." Id. After the movant satisfies this initial burden, the burden shifts to the nonmovant who must then present evidence indicating that summary judgment is improper. Id. "A mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). If the record taken as a whole cannot lead "a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

ANALYSIS

A. Negligence

Plaintiff argues that Defendant was negligent in providing rental services to Daystar. To prevail on a claim of negligence, a plaintiff must show: (1) "the existence of a duty on the part of the defendant," (2) "a breach of that duty," (3) "causation of the alleged injury," and (4) "damages resulting from the alleged breach of the duty." Diamond v. Dep't of Transp., 326 Ga.App. 189, 756 S.E.2d 277, 281 (2014).

Defendant contends that the negligence claim fails because it did not owe a duty to Plaintiff. "Whether a duty exists upon which liability can be based is a question of law." City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861, 862 (1993). "If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence." Dupree v. Keller Indus., Inc., 199 Ga.App. 138, 404 S.E.2d 291, 294 (1991). Indeed, "[n]o matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something that it should have done pursuant to the duty owed the plaintiff." City of Douglasville v. Queen, 270 Ga. 770, 514 S.E.2d 195, 197-98 (1999).

In this case, Plaintiff contends that Defendant's duty to Plaintiff arises from three different industry standards pertaining to boom-supported elevated work platforms which are set forth by the American National Standard Institute ("ANSI"). Plaintiff also asserts that Defendant had a common-law duty to Plaintiff.

1. Industry Standards

Under Georgia law, " ‘violation of ... privately set guidelines ... does not establish negligence. ’ " Spearman v. Ga. Bldg. Auth., 224 Ga.App. 801, 482 S.E.2d 463, 465 (1997) (quoting Manley v. Gwinnett Place Assocs., 216 Ga.App. 379, 454 S.E.2d 577, 579 (1995) ). However, such a violation "may be considered as illustrative of ordinary negligence." Id. at 464. As stated above, Plaintiff argues that Defendant's violation of three different industry standards shows that Defendant was negligent. Those standards are discussed immediately below.

a. Familiarization

Plaintiff argues that Defendant is liable for negligence because it failed to familiarize Daystar as required under section 5.8 of the ANSI standards. In pertinent part, section 5.8 states that

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