forklift into another human being is typically torturous conduct that is what happened here mr newcome was waiting to complete the last delivery of his day when mr smalls unexpectedly struck him with a forklift mr newcome suffered serious injury and ca no longer work but because mr newcome was unlucky enough to have general awareness that forklifts or best operated in reverse under load rather than forward the district court can skloot at that summary judgment was appropriate under an assumption of risk i don't intend to belabor the facts because i understand the court has read the briefs i do think it's somewhat difficult from the briefs to envision exactly how the accident took place the spring creek facility has several loading docks and help me understand what the trial court did here has i understand it looking at the claim you made a premises liability negligence claim and also independently liability talked about how much knowledge your client had they had and then also introduced the issue of the affirmative defense of  right to see do we are we to read the opinion as having said two things you lose on premises liability as a matter of law because it's clear that your knowledge was equal to or superior to the employer and in any event you assume the risk is that how we do read what the district court said that's actually not how i read the district court i mean the districts analysis on assumption of risk it comes at the very end of the penny and i understand that's why mess one is the district court political which is a distinct theory were correct and frankly i don't think the district does address that i'm just trying to figure it out this is assumption of risk it's not clear to me whether that's used as an affirmative defense to a or to be a little both and it's not clear to me whether the district court is ruling that that's a good defense i am therefore i'm somebody judging this case because i'm as a matter of law knew consume the risk here whether it's premises liability or not said you lose two recent spermicides liability superior knowledge and independently you assume the risk anyway no you're on i think the districts i believe that we left for one reason there was one remaining claim that was effectively a premises off the spring creek made a strategic decision to concede responded superior liability the reason being that i wanted some of the other claims to merge for example there was unethical and hiring training in the trust men claim which was quite strong because mr small was not actually a regular forklift driver operator he had a different job at the facility and they decided to enlist him that day so they made a decision to concede respondents a perrier liability and for that reason they are responsible for mr small's negligence if there  a triable issue that mr smallest negligently operated a forklift and that is independent from the premises liability claim if mr small's plowed into mr newcome on forsyth street in front of this court room spring creek would still be liable for that and so there's no reason why this court needs to consider assumption of risk specifically in the context of premises liability cases and ok it is just one of the facts that need to be tried one is  does one have to do with the employees only sign is that part of the facts that need to be tried for the negligence case or not actually we don't believe so on count one which the court that the court determined that there was a tribal issue a fact which  i don't believe was cross appealed so it's kind of a moot issue in any case but in fact the employees issue gets to the level of duty owed to somebody who was on a promise to us so if we were proceeding solely on their premises liability claim and we were not able to this way but in any case he'd been operating it in a certain way and at the last minute he changed to a different way of operating it which something that the victim could not possibly have know he was going to do and therefore he was injured is that that's correct i thought it's a more basic level it's not appropriate to drive a forklift into another human being and if you do that absent exceptional circumstances such as the individual darting off in front of a forklift or something like after we brief that we found can be a glen it's a much shorter case that hasn't been substantially cited but frankly we think the facts are virtually identical to this action in that case the person is on the premises was helping unload maneuver from the back of a van occasionally the van would go to reload and come back and each time he went to reload he was driving the van forward since it's easier automotive than from the rear the plaintiff was standing in the rear consistent late on the fateful pass  driver said i'm going to go bring back the van which he meant he meant he was going to go park at the plaintiff assumed he was getting another load and instead of driving forward as he had another was he drove backwards on that particular occasion and the court said not only is that not assumption of risk as a matter of law for the plaintiff to have stood behind the van but in fact it's reversible error to charge the jury on assumption of risk and we view this fact as remarkably similar here mr small's st four approaches were precisely  took a long sort of looping route to get from the freezer to the trailer as he approached the trailer he slowed down and came to a stop mr newcome would come over and check the temperature of the car and in effect they tended to have a conversation each time that mr smalls would line up the forklift with the trailer and proceed forward that happened on four consecutive passes and in each of those passes mr newcome stood in precisely the same place in front of a pillar off to the right of the fork of his trailer which is frankly a reasonable place to stand because there's no reason to think a forklift is going to be driving toward the pillar on the th pass mr small's again started the circular loop but he did not slow down he did not stop he did not get mr newcome a chance to come over  measure the temperature of the coroner have a conversation and he did not line up with a trailer he simply plowed straight on through which is entirely dissimilar to what he had done in the four previous passes we don't know why he did that and in fact even once he st struck mr newcome sending mr newcome flying into the back of the trailer he still didn't realize he caused an accident and unfortunately for mr newcome he managed to maintain consciousness during this and was able to scream which is what alerted mr small's to the fact he had to stop but the key point is that the final approach is dramatically different  bottom that's the bottom line and if and if the defendant wants wishes to argue at trial that mr newcome bears some responsibility that is certainly an argument they're entitled to make we think little rapids this is significant in several respects the st is that it directly cites to the standard for assumption of arrest which is an extraordinary standard a standard of extraordinary recklessness that says things that like cars surfing or drag racing are assumption entitle you to a jury charge an assumption of risk even that does not amount to summary judgment and in fact some extraordinarily reckless conduct such as passing out drunk in the middle of a roadway is comparative negligence in georgia not assumption of risk so little rapids is significant because it makes it clear that those cases would apply even in a premises context it's also significant because it talks about in premises liability either as assumption of risk or as equal knowledge there needs to be some affirmative act it contrasts a situation where an individual is aware some pallets are dangerous knows they're dangerous and walks near them and says that's not  n of risk with another case where a plaintiff sees that some lumber is wiggling and that it's being moved with a forklift and clamorous on top of it and said that decision to clamor on top of moving lumber that's being hit with a forklift might be assumption of risk b merely being near a condition that is dangerous that you know to be dangerous does not arise to a level and is only a matter of comparative negligence and finally note that this could be if this court were to decide that assumption of risk could apply even in that situation we would still be entitled to remand because assumption of risk needs to be followed voluntary and without coercion of circumstances and georgia courts have given the example of a delivery driver who can't complete his delivery or we get in trouble with his employer as coercion of circumstances so we're entitled at least to a  were two theories one is superior knowledge base on the premises liability and that's in the pendant of the assumption of risk theory right it is and it isn't well the way he wrote it it isn't but do you see it is distinct the assumption of risk would apply to a premises liability claim as well as to negligence going right but the premises liability theory says in substance if the plaintiff the victim has equal or superior knowledge he can prevail that's correct simple as that assume risk not assume risk it doesn't matter that's an affirmative defense yes i sumption a risk says something different and it's an affirmative defense that says he knowingly walked into a circumstance with his eyes wide open and assumed all of the problems that come now those are distinct reasons upon which summary judgment could be granted from a legal standpoint they are the only reason i raise it is when i looked at the district court opinion it's very interesting the way he phrases it the district court says and i quote this is the penultimate paragraph on page nine of judge abrams opinion she says newcomb knew of the hazard that caused his injury small's driving the forklift towards him with an obstructed view thus mr n had as much if not more knowledge than spring creek and voluntarily remained in the path of the forklift now that would if that's correct and that's clear and undisputed then that would entitle you to summary judgment on premises liability but then the district court says mr newcome therefore assume the risk in danger is incident the known condition being struck by the fork with being driven toward him by a driver with an obstructed view and then he concludes by it she concludes by saying accordingly because a plaintive cannot recover in a premises liability suit unless the defendant had superio the hazard the defendant is entitled to summary judgment if there is no evidence that it had superior knowledge or undisputed evidence demonstrating that the plaintiff's knowledge of the has it was equal or greater to it seems to me the judge is saying two things he went on premise liability and there was an assumption of the risk i would agree ok now let me ask you about that as i understand the law in georgia the georgia courts have clearly recognized the difference between premises liability on the one hand and negligence claims arising from of the ants that happened to take place on the defendant's premises there are two different theories one would be a normal carm common garden variety negligence responding at superior or the other would be premises liability right yes they were travelling on both theories and you would agree with that that they attempt to yes ok now as i understand georgia law liabilities determined on the framework of premises liability only if the injury is caused by a condition of the premises over which the premises owner has some degree of control such as a static condition or passo defect if an injury is caused by an act of negligence of the owner occupiers an employee however ordinary negligence principles apply that's clear as the law that's governing lot in georgia well i'm just reading from what the georgia supreme court's told us is simply stated yes i have been misstated what they said in byron have i no no you have not wasn't this basically a act of negligence respon the superior case the claim here is not that there was some latent a defect a permanent static in the premises rather it is this guy drove the forklift in a negligent way hit the guy on his hadn't had an injury isn't that ordinary negligence respond the superior liability it could be but not under the facts of this case if the forklift driver as what's the static condition instead of condition is there's an operation of four live going back and forth just that it's not a static condition it is an active condition but you can have an active condition premises liability case to an operation of an elevator that is joined up and down consciously while it's in motion that cases that say that look like an elevator the elevator is going up and down nobody has direct control over the elevator so there's no human but it is a repeat that repeated action ok so he saw and i saw that's different right elevator no human this is the way this elevator operates it might be moving but it's a condition of that building how i under the record it is not an issue the plaintiff's own testimony over and over counsel's made representation about what the facts are those facts not borne out in the record they're not there nowhere in the deposition of the plaintiff does he say that he did tell me what is the preexisting dangerous condition on those premises that you're referencing the operation before how is that a preexisting dangerous condition if he operated the forklift in a perfect way the still would be no preexisting dangerous condition you think premises liability turns on the the role of somebody driving a truck on the property if he were to have some discretion or some alteration and it was being to be claiming that the operation of the fork lift did change and you say that's nowhere in this record that he never asserted that anywhere any time it is not ok doc it twenty six dollars did the forklift operator do this the same time every time same way every time he said yes tell me anything he did differently i can't i can't tell you anything he did differently he says that we cited all that in our brief pages sixty to seventy or so on documents twenty six dash four but the one thing he does attempt to say is he tries to say that one time that this last this fatal fatal occasion before lift is pulling up to go into the trailer and every other time he would but he did stop back up and pull in again exactly like you don't so your theory is that he's never made statements that there was any change in the operation that effected his injury and because it was the same operation every time that's a preexisting premises condition that's your argument yes and that is also the alleged negligence that they want to claim well you can see that there are allegations at least twenty three that's what i asked you at the very outset that yes premises liability was one act of negligence respond the superior was another let me ask you something this way suppose the guy was driving the forklift not in the interior of the plant but a parking lot in front same property and ran the guy over would that be a preexisting condition case would that be premises liability well you know part of this is because it is in an enclosure and it's an enclosure with no trespassing signs and no one beyond this area signs up so it is it is an area that dangerous operations are going on it's like a saw and he saw a mill it's like a conveyor built in a where a conveyor belt in a warehouse it is a dangerous condition that is going on a dangerous operation of of heavy duty industrial equipment this being taken place if that was being done in a parking lot then the owner of the premises would have an obligation to keep people out of that area to at least advise them if you enter this area there's dangerous activity going on in this area be aware they did that here even without the warnings he has acknowledged that he knew he watched it three or four times so the answer to my question if the accident had occurred on their parking lot outside would be walked if it was on the parking lot and there were signs keeping people away and he had served three or four times and it was exactly the same so if you get him on a parking lot with a sign saying don't be on the parking lot with us that's why that's kind of we're hit to a different that's what makes that scenario different than what we have here let me ask a slightly different question about jury question on the last it is so clear so that the guy had knowingly walked in front of a truck at a time when he wasn't drunk or something like patter he was driving on top of  truck or something like that or skate skating or something like that are these generally fact questions under georgia law have i understood that right generally they are it is the exceptional case where why would this be the kind of exceptional case that they've cited or does there about getting hit by a forklift when you're going there to pick up some goods what gives that suggest this was really that quality what gives us got us in this case is kroger versus williams years after the little rabbits case it actually refers to little wrappers and it distinguishes little rapids as does valor versus alpharetta states skate center in those cases where what was going on on the property was going all of the forklift actually the kroger case is a fort with case when that occurs if that if nothing changes about how it's been done over and over again if the if the plaintiff is fully aware of all aspects of what he's dealing with and he puts himself in danger he is the only one that can stop let me come at it this way ok georgia courts regularly quote prosper and court says the following quoting prosser and keep an eye on the concept and they say quote a pedestrian who walks across the street in the middle of a block  stream of traffic travelling at excessive speed cannot by any stretch of the imagination be found to consent that the driver's shall not use care to watch for him and avoid running him down on the contrary he is still insisting they shall this is contributory negligence pure and simple it is not an assumption of the risk the plaintiff has exposed himself to the risk of future harm but he has not consented to relieve the defendant of any future duty to act with reasonable care that's how they put it yes or don't we best from your perspective have a fact question a that if there's an inference there that something changed because he stood in the same place every time he got hit wants so there's some evidence in this record that something changed if what he does if what the plaintiff does changes and that's not going to be the type of change that kroger and little rapids are looking for you talking about human beings she without one driver of a forklift who you say does the same thing every time so it doesn't change a plane that goes back to the same spot every time so that doesn't change negligent except one he couldn't see where i was in to me and i went back to the same position every time and he never hit me before and on the last one he hit me and who could see and who couldn't see what that sounds a forklift driver does the same thing every time he says he goes back to the same spot every time there's an inference there that something different happened i thought well i don't know but he says he goes back to the same place every time i thought you just told me he just continued to drive the forklift on the th occasion in the same way he did on the preceding three how would this be a static or passive a defect rather than an allegation of active negligence on the part of a driver who was driving a forklift that's what i'm having trouble understanding what it did when he changed his behavior he did not this is an allegation the act of negligence is it not rather than an allegation that there was a mass of the defect on the property that the owner has premises liability for what is missing is that allegation  negligence to say he was negligent is not enough you must say specifically how was he negligent what did he do that was negligent and they have a definite nothing except that that he drove the truck and ran him over and knocked his head on the ground and to cause them this discussion was active rather than passive was it's not it was active in the same way that i saw running at a sawmill as acted ok there build or elevator thanks very much a foundation the equal knowledge premise s the equal knowledge component of duty and premises liability and it is simply not the case that a plaintiff can ever at equal knowledge of future negligent act on the premises and premises text that is to say that mr newcome could never have perfect knowledge of what mr small's is going to do next so if there was a hole in the ground and it was there that would be a static act precisely a hole in the ground  a a box that's been left out in the middle of the hallway at the absence of a light or the absence of a security camera in those situations the plaintiff can have a dental call or even greater knowledge in some cases than the premises owner it is not possible  knowledge of what mr small's was going to do than mr small's himself acknowledged and therefore it is always a future act of negligence and i think little rapids makes that clear i wasn't in the position though where you had a better view of what was going on than the forklift driver can how the driver was actually maneuvering the truck i'm not sure it's claimants you know say what you will newcomb could see things had a view the whole peripheral view of what was going down there in a way of our underlying allegations on the ordinary negligence you know opposing counsel stood up and said we're not suggesting anything specific that small did wrong failure to maintain an active lookout is also a negligent act i'd like to respond to  from a judge marcus and then one judge responding i think implied by judge black to judge marcus i think you are correct that the proper way to look at this case a forklift is that the forklift is an ordinary negligence claim not a premises liability claim and i think you've cited the correct general principle of law i would note that there is in fact more specific and directly applicable law in georgia to georgia court of appeals have actually twice managed to address a forklift on a premise s in both of those cases a forklift was owned by a rd party the plaintiff was injured in the plaintiff attempted to sue the premises owner and in both cases the georgia court of appeals said well that's a forklift case that's not really a premises case so i think even on the very narrow facts of this case this specific issue has been directly addressed and that was cooper tire b merit which is two point that is actually uncontroverted not just disputed but uncontroverted is that mr newcome during the time the forklift was making its past always stood in precisely the same location the evidence about him later walking forward was referring to the fact that when the forklift came to a stop he would then walk out and check the temperature of the core and there's no evidence that he ever stood anywhere other than the same exact position for each pass so therefore it's not just plausible but seems undeniable that the forklift had to have done something different because it did not hit him on four passes and hit him on one in addition the passage that opposing counsel cites this court will have an opportunity to read but i view that as mr newcome understanding him being asked to speculate at what was in mr smalls as head and he says i can't say what mr small mr newcomer's testimony said that he failed to line up before he hit him and then again he says after he hit him he then he it's said he did something it does say he did something different before he had them and then it says again that there was a change in position when he went to put it in the chamber so there is like he's saying there's to change the position i just read it right so i think that i think i'm not on the st floor pass as what mr newcome says is that he would stop let mr newcome check the temperature that have a conversation that need to line up and go in on the last pass he of mr newcome position he never lined up he plows into mr newcome that at that point still not realizing he had injured mr newcome starts to line up  newcome still conscious and yells and so i take it opposing counsel is position is that proves he was doing the same thing all along but clearly something different happened or at least there's a triable issue of whether something different happened because this is the only time the forklift plowed into mr newcome who was standing in precisely the same spot every