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Lawskills.com Georgia Caselaw
DAWKINS v. JONES et al.
44539.
Action for damages. DeKalb Civil and Criminal Court. Before Judge Mitchell.
EBERHARDT, Judge.
1. Generally, it is a jury question as to whether an injury was the natural and probable result of an alleged wrongful act, that is to say, whether reasonably the consequence should have been foreseen by the wrongdoer.
2. That an act was done in accordance with custom will not relieve it of its negligent character when it was not done in the exercise of that degree of care which the actor was required to exercise.
Mr. and Mrs. Jones sued Dawkins seeking to recover damages caused by a fire occurring in plaintiffs' home while Dawkins was refinishing the hardwood floors pursuant to an agreement with them. There was a verdict for plaintiffs, and Dawkins appeals from the order overruling his motion for new trial on the general grounds.
The evidence shows that the fire occurred when Dawkins was applying "lacquer floor sanding sealer" purchased from Sanders Paint Company. At the time of the fire he had completed application of the sealer in the two bedrooms and most of the hall. In describing how the fire started, Dawkins testified, "Well, it seemed like it started all over, all of a sudden. I couldn't tell which room it started in." There was evidence that the sealer is highly flammable and emits a volatile vapor. Dawkins testified that prior to the application of the sealer he extinguished the pilot light in the water heater located in the hall where the refinishing work was being done and also turned the thermostat of the central heating system to "off" to keep the fan from coming on. He did not, however, extinguish the pilot light on the gas furnace located in the basement. He testified that there were heat registers in each room and air ducts in the hall and living room, and that the can of sealer was in the hall close to the cold air return. The labels placed upon the sealer containers bore the caution: "DANGER Extremely flammable." "Important All pilot lights, heaters or open flames must be extinguished before using lacquer in any building. Do not permit smoking. Provide good ventilation." There was testimony from two battalion chiefs of the DeKalb County Fire Department who investigated the fire, one of whom was also a Fire Marshal Investigator, that the fire was caused by the vapors of the lacquer sealer working into the ductwork of the central heating system and coming in contact with the pilot light on the gas furnace, causing a flash fire or "flash back" going back to the source.
It is Dawkins' position that while a jury might believe that the cause of the fire was the ignition occurring upon the union of vapors from the lacquer and the pilot light in the basement, we should nevertheless hold as a matter of law that reasonably he would not have anticipated or foreseen the resulting damage as a direct, probable and natural consequence of his failure to extinguish the pilot light on the furnace.
1. "The most common test of negligence is whether the consequences of the alleged wrongful act are reasonably to be foreseen as injurious to others coming within the range of such acts, and what is reasonably to be foreseen is generally a question for the jury. [Citations omitted.] The question for the jury is whether danger should have been recognized by common experience, or by the special experience of the alleged wrongdoer, or by a person of ordinary prudence and foresight [citations omitted]." Thomas v. Williams, 105 Ga. App. 321, 326 (124 SE2d 409).
In view of the evidence outlined above, and particularly the precautionary instructions on the label of the sealer can that all pilot lights must be extinguished before using, we cannot hold as a matter of law that Dawkins reasonably could not have anticipated or foreseen that failure to extinguish the pilot light on the furnace would result in damage while applying the sealer. The jury was authorized to conclude that ordinary diligence required Dawkins to extinguish the pilot light on the furnace as well as on the water heater.
2. Dawkins further contends that the only testimony dealing with the standard of care normally observed by contractors performing refinishing work was his own uncontradicted testimony, and that this testimony showed that he regularly performed this type of work under the same or similar conditions as existed in plaintiffs' home when the fire occurred and that the procedure he utilized on that day was identical to that which he followed in performing all such refinishing work.
"What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." See also Georgia-Alabama Coca-Cola Bottling Co. v.' White, 55 Ga. App. 706, 713 (191 SE 265); Bimberg v. Northern Pac. R. Co., 217 Minn. 187 (14 NW2d 410); State v. Clark, 41 Del. 246 (20 A2d 127, 138 ALR 704); Schiro v. Oriental Realty Co., 7 Wis. 2d 556 (97 NW2d 385); Prosser, Law of Torts, p. 168, 33 (3d Ed. 1964); 38 AmJur 679, Negligence, 34; City of Macon v. Yaughn, 83 Ga App. 610, 614 (64 SE2d 369); Arnold v. Chupp, 93 Ga. App. 583, 585 (92 SE2d 239). It was a jury question whether Dawkins exercised ordinary care under the circumstances.
Judgment affirmed. Bell, P. J., and Deen, J., concur.
George H. Carley, for appellant.
SUBMITTED MAY 29, 1969 -- DECIDED JUNE 13, 1969.
Friday May 22 17:33 EDT


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