Chastain v. Atlanta Gas Light Co.

• Decision Date: 25 June 1970
• Docket Number: No. 45320,No. 3,45320,3
• Citation: 176 S.E.2d 487,122 Ga.App. 90
• Parties: R. H. CHASTAIN et al. v. ATLANTA GAS LIGHT COMPANY et al
• Court: Georgia Court of Appeals

Page 487

176 S.E.2d 487

122 Ga.App. 90

R. H. CHASTAIN et al. v. ATLANTA GAS LIGHT COMPANY et al.

No. 45320.

Court of Appeals of Georgia, Division No. 3.

June 25, 1970.

Shoob, McLain & Jessee, C. James Jessee, Jr., Atlanta, for appellants.

Raymond M. Reed, Marietta, J. Dudley McClain, Jr., Camilla, Nall, Miller, Caden-head & Dennis, Lowell S. Fine, Woodruff, Savell, Lane & Williams, Edward L. Savell, Atlanta, Custer & Smith, Lawrence B. Custer, Marietta, Dennis & Fain, Douglas Dennis, Troutman, Sams, Schroder & Lockerman, Robert L. Pennington, William H. Schroder, Jr., O'Kelley, Hopkins & VanGerpen, Earl J. VanGerpen, John M. Bovis, Atlanta, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

1. Since an appeal may be taken under Code Ann. § 81A-156(h) where a summary judgment is granted on any issue or as to any party, the motion to dismiss the appeal as premature is denied. See Code Ann. § 6-701(a), par. 4 (Ga.L.1965, p. 18; 1968, pp. 1072, 1073); McLeod v. West-moreland, 117 Ga.App. 659(1), 161 S.E.2d 335; Levy v. G.E.C. Corporation, 117 Ga.App. 673, 161 S.E.2d 339. Nor is the motion to dismiss because of laches and delay meritorious since there was no transcript (the delay was in the preparation of the record), and the delay is explained by (1) the request of one of the appellees to include the entire record in the transmittal of the appeal; and (2) the further certification by the clerk that the delay was not due to 'any fault on the part of counsel for the appellants but to the stress of business.'

2. Questions or negligence, as to cause and proximate cause, and as to what negligence or whose negligence constitutes the proximate cause of the damages incurred in tort cases, except in plain and palpable cases, are solely for the jury. Long Constr. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726; Malcolm v. Malcolm, 112 Ga.App. 151, 153, 144 S.E.2d 188.

3. A party who moves for summary judgment in a case premised on negligence has a considerable burden, and if the moving party is defendant, sometimes he cannot obtain a summary judgment when he might be able to secure a directed verdict at the trial of the case. A motion for summary judgment may be denied a defendant in such case because he is not simply weighing his evidence against the evidence of the plaintiff, but each and every allegation of the plaintiff's complaint must be negated, with all presumptions being in favor of the plaintiff (the party opposing the motion for summary judgment), and the complaint of plaintiff thereby being elevated to the dignity of evidence. See Southern Bell Telephone & Telegraph Company v. Beaver, 120 Ga.App. 420(3), 170 S.E.2d 737. This court has repeatedly held, and particularly in negligence cases, that it is permissible to grant a motion for summary judgment only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. See Holland v. Sanfax Corp., 106 Ga.App. 1, 4, 126 S.E.2d 442; Malcom v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188, supra. The burden to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law is upon the moving party, and any and all reasonable doubts as to the existence of such issue are resolved against the movant, with the trial court giving the party opposing the motion 'the benefit of all favorable inferences that may be drawn from the evidence.' Holland v. Sanfax Corp., supra. Thus, in negligence cases, it must be plainly and palpably shown that the defendants in no way contributed to the proximate cause of the damages incurred in order for the trial court to sustain a motion for summary judgment in their favor.

4. Where, as here, the defendants sought summary judgment, and the plaintiff submitted an affidavit of an expert in the field of professional engineering who stated his qualifications and knowledge of the interrelated practice of architecture, engineering, and land surveying as each pertains to the planning, designing and supervision of the construction of apartment and housing projects, together with his knowledge of and familiarily with design and construction of utility distribution systems, and his testimony conflicts with the testimony of the movants, it cannot be said that a plain and palpable case of no negligence exists in favor of these defendants. He states positively that he examined all the maps, plats and drawings related to the construction project on which the plaintiff as a subcontractor was damaged; that he observed the work site, which includes all the projects of the owner, including contiguous roads, streets and easements for utilities, areas used for storage of materials, rights of way used for access to and from work areas; all borrow and spoil areas for securement and disposal of earth-fill materials, which specifically included reference to the southeast corner of the work area as being a part thereof, and none of the plot plans, plats or documents prepared by or for the architect showed the existence of 'the subject twelve-inch high pressure gas line on the premises and work site.' He further deposed that 'by omission * * * from each of the drawings or specifications and with no notations on any of these drawings or specifications to the effect that some or part of the utility locations might be omitted therefrom' each of the various engineers and consultants who were jointly sued, and the architect, had furnished incorrect and improper advice 'for safe construction including moving of earth materials in the borrow area in and around the existing twelve-inch gas line.' He also deposed that when any utility installations are omitted from a topographical survey, 'it is conventional to note the survey drawing in order to alert the users of that drawing that all utilities have not been shown on the drawing'; that these locations normally are marked in some manner to warn the public of the presence of hazard, particularly in populated areas or rapidly developing areas; and that experience has shown that large high-pressure gas pipeline installations are inherently dangerous and require protection from casual contact by the public and that these must be adequately marked or protected from direct contact with construction operations. He further deposed that both utilities involved occupied a common easement through the work site and borrow area; that in accordance with good, proper and customary practice within the utility industry, it was his expert opinion that it was the responsibility of both and each to periodically and regularly patrol the areas of their utilities and easements in order to detect and prevent dangerous conditions from resulting in injuries to the public from their installations, 'including construction activities on or about these easements'. There was also testimony that the gas line was not marked in any manner on the surface.

(a) A general rule of law is that persons performing architectural, engineering and other professional and skilled services assume an obligation to exercise a reasonable degree of care, skill and ability, which, generally, is taken and considered to be that degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions. See Block v. Happ, 144 Ga. 145(2), 86 S.E. 316; Housing Authority of City of Carrollton v. Ayers, 211 Ga. 728, 733, 88 S.E.2d 368; Bodin v. Gill, 216 Ga. 467(1), 117 S.E.2d 325. This standard of care properly is the subject of expert opinion. The plaintiff having offered the affidavit of an expert in this instance showing his examination of the premises, including the maps, plats, drawings and specifications, and his expert opinion based hypothetically on the facts of the case from his examination thereof, creates a conflict with the other evidence in the record. See Shea v. Phillips, 213 Ga. 269(2), 98 S.E.2d 552; Howell v. Jackson, 65 Ga.App. 422,...