                              FOURTH DIVISION
                                DILLARD, C. J.,
                          DOYLE, P. J., and MERCIER, J.

                    NOTICE: Motions for reconsideration m us t be
                    physically re ceived in our clerk’s office within ten days
                    of the date of decision to be deemed timely filed.
                                    http://www.gaappeals.us/rules


                                                                       October 15, 2018




In the Court of Appeals of Georgia
 A18A0302. KING v.                 GEORGIA           DEPARTMENT                  OF
      CORRECTIONS.

      MERCIER, Judge.

      Augustus King sued the Georgia Department of Corrections (“the Department”)

for negligence after his hand was injured at the Whitworth Parole Revocation Center

(“Whitworth”). The trial court directed a verdict for the Department following the

close of evidence at trial. King appeals, and we reverse.

      A trial court may direct a verdict “only if there is no conflict in the evidence as

to any material issue and the evidence introduced, with all reasonable deductions

therefrom, shall demand a particular verdict.” Kohler v. Van Peteghem, 330 Ga. App.

230, 234 (1) (767 SE2d 775) (2014) (citation omitted). Where any evidence – even

slight evidence – supports the opposing party’s case, a directed verdict is improper.
See id. at 237 (1). We review the grant of a motion for directed verdict de novo,

construing the evidence in favor of the nonmovant. See id. at 234 (1).

      So viewed, the evidence shows that following a parole violation in 2008, King

was incarcerated at Whitworth, which offered a six-month program for parole violators

as an alternative to returning to the state penitentiary. Through the program, Whitworth

inmates received education, counseling, and on-the-job training at the facility. Inmates

who successfully completed the six-month program were released back on parole.

      King, who had previously been employed in the food service industry, was

assigned to work in Whitworth’s kitchen. In his prior employment, King had used

various types of kitchen equipment, including a slicer known as a “Hobart machine.”

The Whitworth kitchen staff confirmed King’s experience with the Hobart machine,

then showed him how to use it to slice vegetables and cheese. Without dispute, a

warning label affixed to the Hobart machine stated: “Rotating knives inside. Always

use food pusher. Keep hands out.”

      On March 27, 2008, King’s kitchen supervisor, Bonnie Hubbard, instructed him

to “pack [liver] into the [Hobart] machine to grind into giblets for the meal for the

day.” King expressed concern to Hubbard that the Hobart machine was not intended

to grind meat and that the machine’s safety “food press” was missing. Hubbard told

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him not to question her authority and to do as instructed. King believed that he had no

choice but to comply with Hubbard’s orders because “not following direction with her

leads to trouble.” As he explained:

       [I]f you fight, if you get any disciplinary form put on you one time, [you]
       go to state prison. You get kicked out of the [Whitworth] program. It
       was zero tolerance on not performing no duties whether detail, listening
       to staff. It was straight disciplinary action.


       King packed the liver into the Hobart machine’s loading chute, holding the meat

in place by hand because the safety food press that pushes food toward the slicing

blades was not attached to the machine. At some point, the blades snagged the glove

King was wearing, pulling his left hand into the chute and slicing off the tips of two

fingers. Following the incident, King underwent surgery on his hand and spent two

days in the hospital.

       King sued the Department for negligence, alleging that the Department and

Hubbard, its employee, failed to exercise ordinary care for his safety. The case

proceeded to trial, and the Department moved for a directed verdict at the close of

King’s case. The trial court initially denied the motion. After the Department presented




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its evidence, however, the trial court granted a renewed defense motion for directed

verdict, stating:

       I think I’ve changed my mind. There was a warning on the machine.
       [King] signed the document that he was familiar with operation of the
       machine. He testified that he had worked in the kitchen and used this
       machine before. I think it’s clear and obvious that if you stick your hand
       in a machine with sharp blades turning, that that is a dangerous move. I
       think it’s clear now from the testimony that the press or flap or whatever
       you want to call it can’t be detached. It’s attached to the machine. And
       it’s there for a reason. And I further find that there’s no – nothing from
       which the Jury could find proof of damages. So I will grant the Motion
       for Defendant’s verdict.


       King argues that the trial court erred in directing a verdict for the Department

because the evidence presented questions of fact for the jury as to negligence and

damages. We agree.

       1. Although King’s testimony was confusing at times, he clearly stated that (1)

the safety food press was not attached to the Hobart machine when Hubbard

instructed him to grind the liver; (2) he told Hubbard about the missing piece; and (3)

she ordered him to grind the liver despite its absence. The Department disputed this

testimony, offering competing evidence that the safety device was in place. But King’s



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testimony raised a jury question as to whether the Department, through Hubbard,

negligently required King to use a machine without the appropriate safety equipment.

See Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 709 (2) (a)

(618 SE2d 621) (2005) (evidence that county failed to give appropriate safety

equipment to probationer who was completing community service raised issues of fact

as to county’s gross negligence). Accordingly, the trial court erred by concluding, as

a matter of law, that the safety food press was attached to the Hobart machine at the

time of King’s injury. See Chrysler Group v. Walden, 339 Ga. App. 733, 735 (1) (792

SE2d 754) (2016) (“A motion for directed verdict should not be granted where there

exists even slight material issues of fact, because the trial court is substituting its

judgment for the jury’s.”), aff’d, 303 Ga. 358 (812 SE2d 244) (2018).

      2. In granting the directed verdict motion, the trial court further found that King

knew how to operate the Hobart machine and was aware of its dangers, but

nevertheless placed his hand in the machine. Essentially, the trial court determined, and

the Department argues on appeal, that King’s own negligence caused his injury and/or

he assumed the risk of danger presented by the Hobart machine.

      Pursuant to OCGA § 51-12-33 (g), a plaintiff “shall not be entitled to receive

any damages if the plaintiff is 50 percent or more responsible for the injury or damages

                                           5
claimed.” The plaintiff assumes the risk of his own injuries and is likewise barred from

recovery if he “(1) had actual knowledge of the danger, (2) understood and

appreciated the risk[], and (3) voluntarily exposed himself to that risk.” North Ga.

Elec. Membership Corp. v. Webb, 246 Ga. App. 316, 319 (2) (540 SE2d 271) (2000)

(footnote omitted). “Except in plain, palpable and undisputed cases where reasonable

minds cannot differ as to the conclusions to be reached,” the jury must determine

whether a claimant exercised ordinary care for his own safety or assumed the risk of

injury. Id. (footnote omitted). See also Baker v. Harcon, Inc., 303 Ga. App. 749, 753-

754 (a) (ii) (694 SE2d 673) (2010).

      As noted by the trial court, the evidence showed that King had previously used

a Hobart machine, and the Whitworth machine was equipped with a warning label. But

King testified that he questioned Hubbard’s instructions when he realized the safety

food press was missing from the machine. Hubbard ordered him to use the machine

to grind liver despite his concerns, and he felt compelled to cede to her authority.

Construed favorably to King, such evidence raised a question of fact as to whether he

faced the “untenable choice” of using the Hobart machine without safety features or

risking what he feared would be harsh disciplinary action. Travis v. QuikTrip Corp.,

339 Ga. App. 551, 556 (1) (794 SE2d 195) (2016) (gasoline tanker driver who was

                                           6
struck by motorist at gas station faced “untenable choice” of completing delivery tasks

within the flow of vehicle traffic as employer required or risking loss of his job).

       In light of these circumstances, the jury – not the trial court – was required to

determine whether King acted unreasonably and/or voluntarily exposed himself to the

risk presented by the machine. See id. (“[W]e cannot say as a matter of law that

[tanker driver’s] conduct in placing himself in the Tank Area was unreasonable or that

he voluntarily assumed the risk of the traffic flow.”). Although the Department offered

evidence that it would not have disciplined King for refusing to follow Hubbard’s

instructions, questions of fact remained. See York v. Winn Dixie, 217 Ga. App. 839,

841 (459 SE2d 470) (1995) (“We were inclined to agree with the employee . . . that

because the employee was acting under orders from his employer, his conduct cannot

be characterized as unreasonable as a matter of law.”) (citation and punctuation

omitted). The Department was not entitled to a directed verdict based on King’s

alleged negligence or assumption of the risk. See Travis, supra; North Ga. Elec.

Membership Corp., supra at 319-320 (2).

       (c) Finally, the trial court found that King failed to prove damages. We

recognize that King presented no evidence documenting medical expenses he may

have incurred as a result of the incident. But his testimony established that two of his

                                             7
fingertips were severed by the Hobart machine, the injury has limited his ability to

move those fingers, and he has experienced on-going pain since the injury. King also

asserted that his injury-related limitations prevented him from obtaining a higher paying

job when he was released from Whitworth, and he described how the injury has

adversely affected his family life.

       The Department argues on appeal that King offered no “method for calculating

the amount of the loss that he allegedly suffered with any reasonable degree of

certainty.” King, however, specifically sought recovery for past, present, and future

pain and suffering in his complaint. And “[t]here exists no rule or yardstick against

which damages for pain and suffering are to be measured.” AT Sys. Southeast v.

Carnes, 272 Ga. App. 671, 672 (1) (613 SE2d 150) (2005). Such damages are

determined “by the enlightened conscience of a fair and impartial jury.” Id. Given the

evidence presented, including testimony about King’s loss of fingertips, the pain he

has experienced, and the impact on his life, a directed verdict on the issue of damages

was improper. See Beam v. Kingsley, 255 Ga. App. 715, 716-717 (1) (566 SE2d 437)

(2002) (evidence that claimant’s decedent was aware of impending collision, suffered

injuries, survived for a brief period after the crash, and could be heard gasping for

breath, supported a damages award for pain and suffering); Dodson v. Cobb, 92 Ga.

                                           8
App. 654, 655 (89 SE2d 552) (1955) (“The law infers bodily pain and suffering from

personal injury, and loss of time from the disabling effect thereof.”) (citation and

punctuation omitted).

      Judgment reversed. Dillard, C. J., and Doyle, P. J., concur.




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