*

Honorable Lyle E. Strom, Senior U.S. District Judge for the

District of Nebraska, sitting by designation. 

 1Pursuant to O.C.G.A. § 34-9-11.1, the GDAS intervened in

the Claytons' suit against Travis based upon its workers'

compensation subrogation claim. The GDAS asserted against Travis

the same claims as those asserted by the Claytons. 

United States Court of Appeals, Eleventh Circuit.

No. 95-9591.

Jerry Ricky CLAYTON, Susan Clayton, Plaintiffs-Appellants,

State of Georgia Department of Administrative Services,

Intervenor-Plaintiff-Appellant,

v.

Johnny E. TRAVIS, Defendant-Appellee.

April 7, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 4:94-CV-1224-HLM), Harold L. Murphy,

District Judge.

Before ANDERSON and CARNES, Circuit Judges, and STROM*

, Senior

District Judge.

ANDERSON, Circuit Judge:

In this diversity case applying Georgia law,

appellants/plaintiffs Jerry Ricky Clayton, a traffic signal

technician for the Georgia Department of Transportation ("DOT"),

Susan Clayton, and the State of Georgia Department of

Administrative Services ("GDAS")1 appeal from a jury verdict for

defendant-appellee, Johnny E. Travis, in the United States District

Court for the Northern District of Georgia. Travis was employed by

Knoxville Door and Millworks, Inc. Plaintiffs brought suit against

Travis for injuries sustained by Clayton when the aerial lift, or
 2

A bucket is located at the end of the extension arm of a

boom truck; this truck is often referred to as a "cherry

picker." 

 3We present the facts with inferences in favor of the jury

verdict. 

 4At the time of the accident, Clayton had been employed by

the DOT for roughly four years, had driven a cherry picker for

approximately three years, and had worked as a signal technician

for almost two years. 

 5A red strobe light, which flashes when the red signal on

the traffic light is on, is a temporary measure used to draw

drivers' attention to new signals. 

bucket,2 which Clayton was occupying was struck by a tractor

trailer operated by Travis.

I. FACTS3

On September 16, 1993, Clayton4 was sent by his supervisor to

the intersection of Highway 92 and 120 Connector to install red

strobe lights5 onto newly erected traffic signal heads. Clayton

had helped to install the new traffic signals during the two days

prior to the accident. The signals were being installed because

heavy traffic flow made it difficult for drivers to negotiate the

intersection.

When Clayton first arrived at this intersection, he and

co-worker Terry Rutledge measured the height of the bottom of the

newly installed signal heads, and found that they were between 14

and 141/2 feet above the ground. DOT regulations require the

traffic signals to be at least 17 feet from the ground. Clayton

pulled his boom truck off the roadways, into the northwest quadrant

of the intersection, and attempted to raise the signal heads. This

effort was unsuccessful, however, because the anchors of the span

pole, the pole to which the signals' wires were attached, began to
come out of the ground. Clayton and Rutledge then called a derrick

truck to the scene to place new anchors onto the span pole. When

the derrick truck arrived, an installation repair crew, along with

Rutledge, gathered about twenty-five feet away from Highway 92 in

a slope-like hole or ditch and began to place new anchors onto the

span pole. These DOT workers were not visible to drivers headed

south on Highway 92.

During this time, with the cherry picker still located off the

road in the northwest quadrant, Clayton began the installation work

on the traffic signal above the southbound lane. Clayton got into

the bucket, and moved the extension arm and bucket out over the

southbound lane of traffic and began work on the signal. The

traffic was heavy, and at the time of the accident there was a flow

of traffic in the southbound lane in which Travis was traveling.

As Travis drove his tractor trailer southbound on Highway 92 and

into the intersection, the top of his truck struck the bucket of

the cherry picker, knocking Clayton to the ground.

Travis' truck was 13 feet 5 inches high. The testimony

indicated that there was a standard minimum clearance of 15 feet,

and that truck drivers could assume for example that traffic

signals would be at least 15 feet high. The traffic signal on

which Clayton was working was 14 to 141/2 feet high; Clayton

himself had measured it. According to Rutledge's testimony, the

bottom of Clayton's bucket was 13 to 131/2 feet high. Drexel

Homes, a traffic signal supervisor, testified that he had suggested

to Clayton before he went up in the bucket that it might be a good

idea to wait until the traffic signals were raised to the proper
height. Clayton himself testified that he knew that DOT required

the bottom of traffic lights to be 17 feet above the road so that

they would not be struck by vehicles or objects protruding from

vehicles traveling on the road. Clayton also stated that he was

aware that one of the biggest dangers of working in an aerial lift

was being struck by a vehicle in the traffic below or an object

protruding therefrom. There was also testimony to the effect that

the lane should have been closed before Clayton began such work

because the signal lights were low. However, Clayton did not use

flagmen to divert traffic and close the southbound lane. Nor did

Clayton use a spotter; spotters for aerial lifts stand by the

roadway and watch for traffic such as tall trucks which may be a

problem.

While Clayton was working in the bucket, the traffic signals

in the intersection were flashing yellow. Cones surrounded the

boom truck, and the truck's revolving amber light was on. However,

the truck was off of the roadway, and there was no strobe light

either on the bucket or the arm of the boom truck. Clayton was

wearing a yellow hard hat and an orange vest, but was not wearing

the safety belt recommended by the owner's manual and discussed at

safety meetings.

Expert testimony indicated that Travis was traveling at a

speed of 30 miles per hour. The posted speed at the intersection

was 45 miles per hour, and an advisory sign posted by DOT at the

time recommended a speed of 35 miles per hour. The sight distance

for a vehicle approaching the intersection from Travis' direction

was approximately 750 feet. Travis testified that he did not see
 6

The other argument raised on appeal by the Claytons is

without merit and warrants no discussion. 

 7While Georgia law provides the substantive definition of

assumption of risk, federal law governs the quantity and quality

of proof necessary to make out a case for submission to a jury. 

Hull v. Merck & Co., Inc., 758 F.2d 1474, 1476 (11th Cir.1985). 

This latter, procedural rule is easily applied in this case, and

will not be discussed further. 

the bucket until he was underneath it, and was not aware that

Clayton was in the bucket until after the accident. The jury

returned a verdict for the defendant Travis.

II. ISSUE

The only issue we address on appeal is appellants' contention

that the district court erred in giving the jury a charge on

assumption of risk.6 With respect to this issue, the only question

preserved for appeal, see note 8 infra, is whether the jury was

presented with enough evidence to provide a basis for an assumption

of risk charge.

III. DISCUSSION

 In this diversity action, we apply Georgia law. Erie R. Co.

v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Under Georgia law, a plaintiff assumes a risk when he "deliberately

chooses an obviously perilous course of conduct" "with full

appreciation of the danger involved." Whitehead v. Seymour, 120

Ga.App. 25, 169 S.E.2d 369, 370 (1969) (syllabus by the court). 7

This affirmative defense bars a plaintiff from recovering on a

negligence claim if the defendant establishes the following: "(1)

[the plaintiff] had actual knowledge of the danger; (2) [the

plaintiff] understood and appreciated the risks associated with

such danger; and, (3) [the plaintiff] voluntarily exposed himself
to those risks." Vaughn v. Pleasent, 266 Ga. 862, 471 S.E.2d 866,

868 (1996).

 In Vaughn, which was decided subsequent to this case being

tried, the Supreme Court of Georgia clarified that for a defendant

to assert this affirmative defense, a plaintiff not only must have

"actual" knowledge, but also a "subjective" knowledge of the risk:

The knowledge that a plaintiff who assumes a risk must

subjectively possess is that of the specific, particular risk

of harm associated with the activity or condition that

proximately causes the injury. (footnote omitted). The

knowledge requirement does not refer to a plaintiff's

comprehension of general, non-specific risks that might be

associated with such conditions or activities. (footnote

omitted).

Vaughn, 266 Ga. 862, 471 S.E. at 868. Thus, in addition to looking

objectively at whether there was evidence to infer that Clayton

assumed a risk, this court must determine whether there was some

evidence to support an inference that subjectively the risk was

apparent to Clayton.

Relying on Vaughn, appellants argue that no evidence was

presented at trial to show that Clayton assumed anything beyond a

general, non-specific risk. We disagree. In Vaughn, police

officer Vaughn brought suit against a truck driver who had pulled

in front of him when he was responding to an emergency. At the

time of the accident, Vaughn was traveling in excess of the speed

limit with his siren sounding and his blue light and headlamps

flashing. 266 Ga. 862, 471 S.E.2d at 867. Upon approaching the

intersection where the accident occurred, Vaughn observed the

following: a green light; stopped cars on the opposite side of

the intersection, which he presumed were yielding to him; and,

near the intersection on the right side of the roadway, a stopped
trailer whose signal lights were not activated. Id. Believing

that the trailer was parked, Vaughn crossed the center lane of the

road to circumvent the trailer and proceeded through the

intersection. At that time, Vaughn realized the trailer was

hitched to a blue pickup truck which was turning left into his

path. The two cars collided. Id.

The Vaughn court held that it was error for the trial court to

charge the jury with assumption of risk, as no evidence was

presented at trial to prove that Vaughn had "actual knowledge that

[the defendant] intended to turn left in front of him, and

nonetheless knowingly and voluntarily continued to travel in excess

of the speed limit in emergency fashion through the intersection."

266 Ga. 862, 471 S.E.2d at 869. The Vaughn court's ruling centered

around the fact that the police officer, in crossing the center

lane to proceed through the intersection, had no prior knowledge

that a truck would turn left into his path: the trailer's signal

lights were not lit or flashing, and the pickup truck was not

visible until the officer had crossed the center lane. In

addition, Vaughn cited Beringause v. Fogleman Truck Lines, Inc.,

200 Ga.App. 822, 823, 409 S.E.2d 524 (1991), where, in finding that

an officer driving in his own lane in a convoy did not assume the

risk of a head-on collision, the court gave weight to the safety

precautions used by the officer: "by his use of flashing emergency

lights, he was insisting that other drivers use care to watch for

him and avoid hitting his vehicle." Vaughn, 266 Ga. 862, 471

S.E.2d at 868-89 (quoting Beringause, 200 Ga.App. at 823, 409

S.E.2d 524).
In arriving at its conclusion, the Vaughn court distinguished

McCrimmons v. Cornell-Young Co., 171 Ga.App. 561, 320 S.E.2d 398

(1984), where "there was some evidence ... that the injured

plaintiff knew of the specific danger associated with the activity

that caused his injury, and appreciated the specific risk of harm

that he was subjecting himself to by engaging in those activities."

266 Ga. 862, 471 S.E.2d at 869 n. 12. In McCrimmons, the trial

court had granted summary judgment for the defendant refining

company, who was being sued by a contract employee injured on its

premises. The plaintiff suffered serious injuries to his face and

head when a split-rim tire assembly exploded in his face while he

was changing a flat conveyor tire without safety equipment. 171

Ga.App. 561, 320 S.E.2d at 399. In an alternative holding, the

court held that the plaintiff "anticipated the risk inherent in the

work he was doing and knowingly assumed the risk." 171 Ga.App.

561, 320 S.E.2d at 401. Critical to the court's holding was the

fact that appellant, before the accident, was aware that there was

a risk that the assembly could explode in his face:

Appellant [in his deposition] ... explained that he was aware

of the danger inherent in changing tires the size of the one

which he was working without using safety equipment; that if

the assembly exploded it could "blow your head off if you

ain't careful"; that before working for Macon Bandag he

always used the safety equipment; that he "went against the

odds" and did the work for Macon Bandag without safety

equipment because he needed the job.

171 Ga.App. 561, 320 S.E.2d at 400. Under the Vaughn analysis,

this plaintiff not only assumed the general risks of working with

large tires, but assumed the specific risk of having an assembly

explode without the protection of safety equipment.

Also instructive is Hull v. Merck & Co., Inc., 758 F.2d 1474
(11th Cir.1985), where this court, applying Georgia law, upheld a

jury charge on assumption of risk. In Hull, the operator of a

chemical plant was sued by Hull, a contract employee who contracted

leukemia after being exposed to chemicals while working on the

replacement of work lines at the plant. Before commencing work at

the plant, Hull was informed that the defendant chemical company

planned to continue operating its factories throughout the

replacement activities. Id. at 1474. In addition, Hull also

received cautionary instructions to wear safety equipment,

including rubber boots, pants, coats, gloves, goggles, and masks.

After a few days of working at the plant, Hull ceased wearing the

protective gear. Id. As a result, he regularly breathed chemical

fumes and allowed liquid to spill on his clothing and body. While

the pipes were supposed to carry only a two percent solution of

waste, on one particular occasion an accidental spill caused Hull

to breathe fumes which contained an 80 to 85 percent solution of

waste. Id. at 1475.

On appeal, Hull claimed that the trial court erred in charging

the jury on assumption of risk. This court, noting that "perfect

knowledge [of the nature and extent of the threat posed] is not

necessary" for the assumption of risk doctrine, held that there was

"ample evidence" to justify the charge on assumption of risk: Hull

knew that the plant planned to continue its factory operations

during the replacement activity; knew that adequate safety gear

was recommended and supplied by his employer; and, "knew from long

experience that the handling of waste chemicals warranted

protective measures, and that coping with a continued flow of waste
warranted an even greater degree of caution." Id. at 1477.

Furthermore, this court noted that, subsequent to his exposure

after the accidental spill, he continued to expose himself for

another month. Id.

 In arguing that there was no evidence to support an inference

that Clayton subjectively assumed a risk, appellants point to the

fact that Clayton was not facing Travis' direction at the time he

was struck. While Vaughn does require specific knowledge of a

risk, we do not think that it requires the specificity contended by

appellants, i.e., that Clayton must have actually seen Travis'

tractor trailer approaching the intersection, and then must have

assumed the risk of being hit by that particular vehicle. Rather,

Vaughn cited with approval McCrimmons which applied the assumption

of the risk defense where the specificity of the risk assumed was

comparable to that in the instant case.

In this case, Clayton measured the actual height of the

traffic signals and knew that they were 14 to 141/2 feet high. The

jury could infer that Clayton knew that the bucket in which he

undertook his work was lower than that; this would have been

obvious to him as he worked. Moreover, we know from the evidence

that the bucket was in fact lower; the bucket must have been as

low as 13 feet 5 inches because it was hit by Travis' truck of that

height. The jury could also infer that Clayton was aware of the

specific danger of being hit by a vehicle traveling below if he got

his bucket too low. He testified that he knew that the DOT

required signal lights to be 17 feet high so they would not be hit

by vehicles. He also testified that he knew that a major hazard of
 8

Appellants also argue that certain statutory "rules of the

road" operate to make the assumption of the risk charge

inappropriate. We note that the district court did instruct the

jury with regard to these "rules of the road." However,

appellants did not argue to the district court that these rules

of the road somehow operated to make the assumption of risk

charge inappropriate, or were otherwise relevant to the

assumption of risk issue. We decline to entertain this argument

raised for the first time on appeal. Similarly, appellants argue

for the first time on appeal that Clayton had a special status as

a workman employed in working on the highways and that this

special status is relevant to the assumption of risk issue. We

also decline to entertain this argument. 

his job was being struck by a vehicle. Indeed, a suggestion had

even been made to him before he went up in the cherry picker that

it might be better to wait until the traffic signals were raised to

their proper, 17 foot height. Finally, the jury could infer that,

at the time he undertook this work, Clayton knew that the traffic

on the highway was heavy.

Notwithstanding the foregoing knowledge, Clayton moved himself

and his bucket out over the oncoming flow of traffic and began

working at the low level he knew to be dangerous, without either

diverting the traffic or even using a spotter to warn him of tall

trucks. We believe that the risk assumed by Clayton—i.e., the

known risk of being hit by an oncoming truck when he got so low—is

at least as specific as that in McCrimmons, where the plaintiff

knowingly assumed the risk that the tire assembly would explode

while changing the tire. We conclude, based on the evidence

presented, that the jury could have found that Clayton sufficiently

contemplated the obvious danger that an oncoming truck might hit

him when he lowered his bucket so low over the flow of traffic.8

IV. CONCLUSION

For the foregoing reasons, we do not find that the district
court erred in charging the jury with assumption of risk.

AFFIRMED.