A Bartow County jury didn’t take long to decide that a man who was badly burned should be compensated for the injuries he sustained as he assisted a relative trying to get an old lawn mower running.
But the panel also ruled that David Mitchell was partly at fault for his injuries, levying 49 percent of the blame for the accident to him, and apportioning 51 percent to his father-in-law, Troy Moss, who was pouring gasoline into the mower’s carburetor when it backfired and engulfed Mitchell in flame.
The ruling means Mitchell will receive just $127,500 of the $250,000 the jury awarded—which won’t even pay his $223,000 in medical bills, which were not covered by insurance.
Defense attorney G. Lee Welborn of Marietta’s Downey & Cleveland said there was little argument as to how the accident happened; the issue, he said, was whether Mitchell should have known better than to lean over the engine as he turned the ignition switch while Moss poured gas into it.
"We admitted, in a roundabout way, to contributory negligence and proximate cause," said Welborn. "We argued failure to exercise ordinary care. … When a plaintiff stands this close knowing it’s dangerous, he shouldn’t be allowed to recover. It’s like, he knew it was a snake when he picked it up."
"But I think what [Mitchell] took exception to the most was, immediately after the explosion, there were two things on fire: the son-in-law and the lawn mower," Welborn said. "When faced with the choice of whether to turn the garden hose on his son-in-law or the mower, Mr. Moss chose the mower."
Jesse Vaughn of Calhoun’s Vaughn & Clements, who represented Mitchell with Calhoun solos David Groover and Scott Forster, said questions from the jurors may have indicated some confusion concerning the apportionment of liability and its impact on the final award.
"During deliberations the jury asked two different questions, both of which related to the apportionment of damages," said Vaughn in an email. "The two step process of the jury apportioning fault but the Court then applying the apportionment to the verdict creates confusion for juries."
The lawyers said there were no appeals planned in the case.
The accident occurred in October 2010 at Moss’ Rydal home, where Mitchell, 56, was visiting; Mitchell’s wife had died several years earlier, Welborn said, but the two men remained close. Mitchell was considering buying the old riding mower from Moss, who had purchased it some time earlier from Habitat for Humanity for $64.50.
Mitchell said he’d buy it if they could get it running, so he and Moss, now 78, set about "priming" the engine by removing its air filter and dribbling gasoline directly into the carburetor, according to the pretrial order.
Moss, an "experienced mechanic" according to the plaintiff’s portion of the order, poured the gas from a cup while Mitchell turned the key. The men repeated the procedure twice; on the third attempt, according to the plaintiff’s version, Moss "dribbled gasoline into the engine while it was running."
The engine "instantly backfired, causing a flash to go straight up through the carburetor," and caught the cup of gas Moss was holding on fire.
Moss "immediately then threw the burning gasoline onto Davis Mitchell" who "became engulfed in flames," according to the plaintiff’s account. "Defendant Moss, along with his wife, retrieved a water hose and proceeded to spray water on the mower, leaving David Mitchell burning."
Welborn and the defense portion of the order present a different account. Mitchell, who it said also had experience as a mechanic, stood over the mower as he turned the key even though he "admitted that he was scared of the priming process because it is ‘an unnatural thing.’ He knew that priming a carburetor with gasoline was dangerous since you have an open carburetor and an open can of gas," said the defense account.
The defense version also said that Mitchell was set on fire when "fire shot up and blew gas out of the [mower's] tank which caught Plaintiff on fire. The gas blew from the tank onto Plaintiff."
Welborn did not dispute that Moss first doused the mower with the hose, but he said that was because it was not immediately apparent that Mitchell was on fire.
"Mr. Moss said the mower was the big fire, and David Mitchell did not have visible flames when he was rolling on the ground," Welborn said. "From what I understand, gasoline flames are not the brightest in terms of coloration."
Mitchell suffered severe burns, and Moss —who was lightly burned on a hand—drove him to the emergency room at Cartersville Medical Center "at speeds close to 100 miles per hour," said Welborn. "They both agreed it was quite the wild ride."
Mitchell required several surgeries and multiple trips to the Joseph M. Still Burn Center at Doctor’s Hospital in Augusta. His medical bills totaled $223,812, according to the pretrial order, and he suffered permanent scarring.
Vaughn confirmed that heart surgery Mitchell had undergone not long before the accident had exhausted his insurance benefits for the year.
In October 2011, Mitchell filed suit in Bartow County accusing Moss of negligence in pouring the gasoline into the mower while the engine was running and in throwing burning gasoline on him.
Welborn was retained by AutoOwners Insurance, which provided Moss’ homeowner coverage.
A plaintiff’s demand for the policy limits of $1.5 million was declined, Welborn said, and the parties remained far apart following a mediation before Dalton attorney Robert Cowan a few weeks before trial.
Trial commenced Feb. 4 before Bartow County Superior Court Judge D. Scott Smith. The only outside expert to testify was Snellville fire and explosion expert Robert Ballard, Welborn said.
Ballard testified that the gasoline that soaked Mitchell must have come from the cup that Moss was holding, Welborn said, and not from the mower’s gas tank.
"We brought the mower into court, and showed that there were small holes in the bottom of the tank near where Mr. Mitchell was standing," said Welborn. He said he also demonstrated that, after three or four primings, the small cup Moss was holding could not have had enough gasoline to cause the extensive burns Mitchell suffered.
Vaughn said the plaintiff’s team was forced to tackle three defense theories presented to the jury.
"The noteworthy issue that came up in the case was the interplay between the defense of an Assumption of the Risk, the defense of comparative negligence and the apportionment statute," Vaughn said via email. "It was our position that the Court should not charge the jury on comparative negligence or apportionment as Assumption of the Risk was an all or nothing defense.
"Of course," wrote Vaughn, "Judge Smith did not buy our argument and charged on all three concepts. He also included an apportionment of fault section on the verdict form."
After a three-day trial, the all-white jury of seven males and five females took about an hour and half to award the plaintiff $250,000, but apportioned 49 percent of the blame to Mitchell’s negligence.
"The judge instructed them that he would deal with any adjustment of damages based on the numbers they found, but not specifically that it would be a proportional reduction," Vaughn said. "In his charges and on the verdict form it said that the jury need not change the damages in relation to the apportionment and that the Court would do that at a later date."
Welborn said that, in conversation with jurors afterward, "one of them indicated that it was a close call on liability, but in the final analysis they believed perhaps the reason the mower wouldn’t crank and run was that it was out of gas, which they attributed to Mr. Moss, as well as the fact that he poured gas in the fourth time before the engine completely died."
"Surprisingly," Welborn added, "the fact that Mr. Moss did not spray Mr. Mitchell with water first did not factor into their decision."
Welborn said all three of the opposing lawyers participated actively in the trial, and congratulated them.
"It was a lot of fun because Scott Forster and I went to law school together," Welborn said. "It was a well-tried case; a real pleasure."
"This was an interesting and fun case to try," agreed Vaughn. "Mr. Forster, Mr. Groover and I had a great time trying this case."
The case is Mitchell v. Moss, No. 11CV2954.