Card v. Dublin Constr. Co.

Decision Date07 July 2016
Docket NumberA16A0596
Citation788 S.E.2d 845,337 Ga.App. 804
PartiesCard et al. v. Dublin Construction Co., Inc. et al.
CourtGeorgia Court of Appeals

Jarome Emile Gautreaux, Jeffrey Nelson Powers, Macon, Darren Summerville, Atlanta, for Appellant.

Erin Smith Corbett, Daniel Bullard IV, Renee Sherrin Rainey, Rufus D. Sams III, Macon, for Appellee.

McFadden, Judge.

Benjamin and Alfreda Card(“the Cards”) filed this action for personal injuries Benjamin Card(“Card”) suffered on a construction site.The trial court granted summary judgment to Dublin Construction Company, Inc.(“Dublin”), the general contractor, and J&J Masonry & Construction Co.(“J&J”), a subcontractor, on the ground that Card was a licensee and there was no evidence that the defendants acted wantonly, wilfully, or intentionally.

As to J&J, the Cards argue that the trial court erred because in addition to asserting claims arising from the condition of the premises, they asserted claims against J&J that had nothing to do with Card's status as a licensee or invitee.We agree.The claims the Cards asserted against J&J included claims of active negligence; and Card's status as an invitee or licensee is not relevant to those claims.

Regarding their claims that do arise from the condition of the premises and the defendants' occupation of those premises, the Cards argue that whether Card was a licensee or an invitee is a jury question.But as to J&J, the Cards have pointed to no evidence that Card and J&J shared a common purpose.So as to subcontractor J&J, Card was no more than a licensee.But as to general contractor Dublin, we agree with the Cards that whether Card was an invitee or a licensee is a jury question.

We decline the defendants' invitation to affirm under the right-for-any-reason rationale because the defenses that they argue entitle them to summary judgment all depend on disputed issues of fact.However, we agree with Dublin that the Cards have not shown a contractual provision that would make Dublin vicariously liable for J&J's negligence.

1. Facts.

On appeal,

[w]e review de novo a trial court's grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant's favor, warrant judgment as a matter of law.

McGarity v. Hart Elec. Membership Corp ., 307 Ga.App. 739, 740, 706 S.E.2d 676(2011)(citation omitted).

So viewed, the evidence shows that Card worked as a delivery driver for a company called Hagemeyer North America, which sold industrial electrical products and tools.On the day of the accident, Card made a delivery to a construction site at Georgia College & State University.Card was delivering bundles of conduit to Speir Electric, a subcontractor on the project.Card went to the general contractor's trailer to locate the Speir contact person.No one was in the trailer.Card did not have the telephone number of the Speir contact person, so he asked some workers sitting outside the trailer if they knew where the Speir contact person was.The workers told Card that the Speir contact person was on the third floor of the building being constructed.Card saw other workers entering the building, he saw no signs, tape, or other kind of warning that he should not enter, so he assumed it was permissible to enter the building.

Card entered the building, went upstairs, and found the Speir contact person.They started to exit the building, Card leading the way, so that the Speir contact person could take delivery of the conduit.Just as Card stepped out of the door, a concrete-filled hose from a concrete pumping station operated by J&J fell from a third-story window, hit him in the back, and knocked him down.Card was injured and required medical treatment.

The Cards filed this action, alleging that the defendants were negligent in the handling of the concrete-filled hose and in failing to warn persons in the vicinity of the threat of the falling hose.

2.Active negligence vs. conditions of the premises.

Some of the claims the Cards assert against the defendants pertain to the failure to warn of the condition of the premises while some pertain to acts of active negligence on the part of J&J's employees.

For tort claims occurring on premises, there is a legal distinction

between causes of action where the alleged negligence arises from static or passive conditions (such as, pre-existing defects unattended on the premises) and causes of action thereon averring active negligence by act or omission.The record establishes that the incident on which this cause is grounded arises [, at least in part,] ... from a claim of active negligence arising from [J&J's employees'] alleged acts and omissions occurring [while Card was on the premises].

Wade v. Mitchell , 206 Ga.App. 265, 266–267 (2)(b), 424 S.E.2d 810(1992)(citations omitted).See alsoLipham v. Federated Dept. Stores , 263 Ga. 865, 865–866, 440 S.E.2d 193(1994)(distinguishing claims arising from the condition of the premises from claims arising from active negligence).The distinction is important because we focus on “different inquiries depending on whether the injury arises (a) from pre-existing conditions or (b) from active negligence, i.e., from the proprietor's acts or omissions occurring at the time the plaintiff was on the premises.”Brownlee v. Winn–Dixie Atlanta , 240 Ga.App. 368, 369–370, 523 S.E.2d 596(1999)(citations omitted).For one thing, as discussed more fully below, the duties a defendant owes may be different, depending on whether a claim arises from the condition of the premises or from active negligence.

3.Claims arising from allegations of active negligence against J&J.

The Cards argue that the trial court erred in granting summary judgment to J&J solely on the ground that Benjamin Card was a licensee because J&J owed him a duty independent of any duties arising from its status as an occupier of the premises.They add that they asserted multiple theories of recovery against J&J, including simple negligence claims for failure to operate the concrete pump in a safe manner, that do not emanate from duties as a landowner or occupier.We agree that the Cards asserted claims against J&J arising from allegations of active negligence and that, as to these claims, Card's status as a licensee or invitee is irrelevant.So the trial court erred by granting summary judgment to J&J solely on the basis that Card was a licensee.

As to the claims of active negligence, J&J owed Card a general duty of care.Lipham v. Federated Dept. Stores , 263 Ga. 865, 865–866, 440 S.E.2d 193(1994).“In other words, liability for [J&J's employees'] failure to exercise ordinary care and not to subject others to an unreasonable risk of harm is based only on the nature of [their] negligent act[s] and is not affected by [Card's] status with respect to the premises.”Id. at 866, 440 S.E.2d 193.

The Cards also argue that J&J owed duties to Card, regardless of his status as invitee or licensee, because subcontractors owe duties to other workers on the job site.We first recognized such a duty in Doke v. Dover Elevator Co. , 152 Ga.App. 434, 436, 263 S.E.2d 209(1979).There, an employee of the general contractor on a construction project fell into a vent hole in the top of an elevator shaft.He sued the subcontractor responsible for installing the elevators.Observing that the plaintiff had the right to be in the area where he fell while performing his work on the job site, we concluded that, “respecting the vent hole into the elevator shaft, [the defendant-subcontractor] owed all construction workers on the job site the duty to exercise reasonable care in their protection.”Id.But we think that this duty is no different than the general duty of care that one owes to others lawfully on the premises.SeeLipham , 263 Ga. at 865–866 & n. 2, 440 S.E.2d 193.

4.Licensee vs. invitee.

The Cards asserted claims against both J&J and Dublin arising from their status as occupiers of the premises.As to such claims, [t]he duty owed by a landowner [or occupier] to one who enters upon his property depends, to a certain extent, on whether the one entering the property is an invitee, a licensee or a trespasser.”Lipham , 263 Ga. at 865, 440 S.E.2d 193(citations omitted).The trial court found that Benjamin Card was a licensee, but the Cards argue that whether Benjamin Card was an invitee or a licensee is a jury question.We disagree as to J&J but agree as to Dublin.

Card's status is important because, as noted, the duty of care owed by an occupier of land to a person coming upon the property varies and is determined according to the legal status of the person entering the premises.SeeJones v. Barrow , 304 Ga.App. 337, 338–339, 696 S.E.2d 363(2010);Jarrell v. JDC & Assocs ., 296 Ga.App. 523, 524–525, 675 S.E.2d 278(2009).A landowner or occupier owes the duty of ordinary care to an invitee.OCGA § 51–3–1;Jarrell , 296 Ga.App. at 525, 675 S.E.2d 278.That duty may include a duty to “give a warning adequate to enable the invitee upon the premises to avoid harm,” where the danger is not apparent.Knowles v. La Rue , 102 Ga.App. 350, 353, 116 S.E.2d 248(1960).A landowner or occupier owes a lesser duty—to avoid causing willful or wanton injury—to a licensee.OCGA § 51–3–2 (b);Jarrell , 296 Ga.App. at 525, 675 S.E.2d 278.(The Cards do not challenge the trial court's finding that “there is no willful, wanton or intentional conduct present in this case.”)“The generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render his presence of mutual benefit to both, or was for business with one other than the owner or occupier.”Scully v. Bd. of Regents of the Univ. System of Ga. , 332 Ga.App. 873,...

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