Benton v. David Allen Co., Inc.

• Decision Date: 20 November 1989
• Docket Number: No. A89A1526,A89A1526
• Citation: 388 S.E.2d 878,193 Ga.App. 789
• Parties: BENTON v. DAVID ALLEN COMPANY, INC.
• Court: Georgia Court of Appeals

Page 878

388 S.E.2d 878

193 Ga.App. 789

BENTON v. DAVID ALLEN COMPANY, INC.

No. A89A1526.

Court of Appeals of Georgia.

Nov. 20, 1989.

Rehearing Denied Dec. 4, 1989.

Certiorari Granted Feb. 9, 1990.

Downing, McAleer & Gaskin, James E. McAleer, Mark H. Johnson, Savannah, for appellant.

Barrow, Sims, Morrow & Lee, Jordan D. Morrow, Savannah, for appellee.

CARLEY, Chief Judge.

Appellee-defendant entered into a subcontract with Tyger Construction Company (Tyger) to install a brick sidewalk. The plans and specifications for the work to be done by appellee did not provide for the bricks in the sidewalk to be cemented into place. Instead, they provided for uncemented 1- 1/8"'-thick brick "pavers" merely to be laid in a compacted bed of sand. After appellee's completion of the sidewalk, appellant-plaintiff tripped and fell while she was walking along it. Apparently, the uncemented "pavers" were subject to loosening when pressure was applied at their corners and appellant tripped and fell over one such loosened "paver." As the result of injuries sustained in her fall, appellant filed suit against appellee and Tyger. In her complaint, appellant alleged that appellee had been negligent in failing to cement the bricks properly and that the sidewalk, as constructed by appellee, was imminently and inherently dangerous and a nuisance per se.

Having answered and denied the material allegations of the complaint, appellee subsequently moved for summary judgment. In support of its motion, appellee produced an affidavit wherein its vice president stated that the brick sidewalk had been installed in strict compliance with the design and material specifications provided by Tyger, over which appellee exercised no control and from which it was not permitted to deviate in any manner, and that Tyger had inspected appellee's work, which was found to conform to the specifications and which was approved by Tyger and the owner. Based upon this uncontroverted evidence, the trial court granted appellee's motion and appellant appeals from this grant of summary judgment in favor of appellee.

1. The law has long recognized that there is a distinction between the case wherein an independent contractor himself has been negligent in his actual execution of the work and the case wherein an independent contractor has otherwise performed the work in accordance with the negligent plans and specifications provided to him by his employer. "In determining whether an independent contractor is to be held liable for damages resulting from the work in connection with which he has been employed, ... it is usually necessary to look for guidance to the question whether the injury resulted from the improper plans or directions by which his employment was defined, or from the improper execution of work properly planned. In such cases, if it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskil[l]ful or negligent execution of the work the contractor (and usually not the employer) is liable. [Cits.]" Bell & Son v. Kidd & Roberts, 5 Ga.App. 518, 520, 63 S.E. 607 (1909).

In those cases wherein an independent contractor himself has been negligent in his actual execution of the work, the law has long recognized that an acceptance of the work by his employer may provide the contractor with a defense to liability for injuries subsequently resulting from his negligent performance. "The general rule is well established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor's failure to properly carry out his contract. [Cits.]" Young v. Smith & Kelly Co., 124 Ga. 475, 476, 52 S.E. 765 (1905). There are, however, exceptions to this "well established" defense to a contractor's liability for his own negligent performance. The employer's acceptance will not provide an independent contractor with a defense to liability for his negligent performance in those cases wherein the evidence shows that the completed work "is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons." Young v. Smith & Kelly Co., supra at 476, 52 S.E. 765.

In those cases wherein an independent contractor has otherwise performed his work in accordance with the negligently designed plans and specifications provided to him by his employer, the law has only recently recognized that there is an exception to the general rule that the contractor's duty does not extend beyond non-negligent performance and that it is the employer who must bear sole legal responsibility for injuries subsequently resulting from his negligence in the design of the work. "We do not agree that a contractor is entitled to put on blinders and ignore serious and dangerous defects in a design given to the contractor to execute. [Cit.] [If the contractor holds himself] out as an expert in ... design and construction ..., we are not willing to hold that [he] can, as a matter of law, escape liability when the evidence could authorize a conclusion that the design was defective and that [he] should have known that the design would result in a [structure] dangerous to its users." (Emphasis in original.) Shetter v. Davis Bros., 163 Ga.App. 230, 231, 293 S.E.2d 397 (1982). Thus, a contractor who claims expertise in design as well as performance may be liable when he complies with his employer's defective plans and specifications. See C.W. Matthews Contracting Co. v. Marasco, 184 Ga.App....