Englehart v. OKI America, Inc.

• Decision Date: 11 June 1993
• Docket Number: No. A93A0128,A93A0128
• Parties: ENGLEHART et al. v. OKI AMERICA, INC.
• Court: Georgia Court of Appeals

Page 331

433 S.E.2d 331

209 Ga.App. 151

ENGLEHART et al. v. OKI AMERICA, INC.

No. A93A0128.

Court of Appeals of Georgia.

June 11, 1993.

Reconsideration Denied June 24, 1993.

Certiorari Denied Nov. 5, 1993.

Phillips, Hinchey & Reid, George C. Reid, Gregory K. Morgan, Atlanta, for appellants.

Drew, Eckl & Farnham, James M. Poe, Mari L. Myer, Atlanta, for appellee.

JOHNSON, Judge.

A. R. Weeks & Associates acted as general contractor on a project for the construction of a building owned by OKI America, Inc. During construction, there were several openings in the floors of the building where the heating, ventilation and air conditioning (HVAC) system was to be installed. As a protective measure, Weeks covered these holes with pieces of plywood. OKI assigned an employee, Thomas Spinks, to visit the construction site periodically to ensure that Weeks was conforming to the construction contract drawings and specifications. As part of his duties, Spinks measured the size and location of the HVAC openings; he removed the plywood pieces covering the holes, took the measurements and then replaced the plywood exactly as he had found it.

Thomas Englehart, an employee of the project's sheet rock subcontractor, was working on the second floor of the building when he attempted to block the wind from his work area with one of the pieces of plywood. As Englehart lifted the piece of plywood, he stepped into the opening which the plywood had been covering and fell approximately 13 feet to the first floor of the building. Englehart and his wife filed a lawsuit against OKI seeking damages for personal injury and loss of consortium. The trial court granted summary judgment to OKI. The Engleharts appeal.

1. The Engleharts contend that the trial court erred in granting summary judgment to OKI because there are genuine issues of material fact as to whether OKI is vicariously liable for the alleged negligence of independent contractor Weeks in placing the plywood over the HVAC openings. Generally, a property owner who has surrendered full possession and control of the property to an independent contractor is not liable for any injuries sustained on the property. McClure v. Equitable Real Estate etc., 195 Ga.App. 54, 55, 392 S.E.2d 272 (1990); Towles v. Cox, 181 Ga.App. 194, 195(1), 351 S.E.2d 718 (1986). OCGA § 51-2-5 provides six exceptions to this general rule. The Engleharts contend that three of these exceptions apply to the instant case.

(a) The Engleharts claim that OKI is liable for the alleged negligence of Weeks because OKI retained the right to direct or control the manner of executing the work. OCGA § 51-2-5(5). This claim is without merit. The contract between OKI and Weeks gives complete control of the construction site to Weeks. Among other things, the contract provides, "The Contractor [Weeks] shall be responsible for furnishing the design and for the construction of the Project.... The Contractor will provide all construction supervision, inspection, labor, materials, tools, construction equipment and subcontracted items necessary for the execution and completion of the Project."

The contract also makes Weeks solely responsible for the safety of its employees; Weeks was the statutory employer of subcontractor employee Thomas Englehart. OCGA § 34-9-8. "The Contractor shall take necessary precautions for the safety of its employees on the Work, and shall comply with all applicable provisions of federal, state and municipal safety laws to prevent accidents or injury to persons on, about or adjacent to the Project site.... The Owner [OKI] shall have no contractual obligation to the Contractor's subcontractors and shall communicate with such Subcontractors only through the Contractor."

OKI did retain the right to ensure that Weeks' work conformed to the contract drawings and specifications. The retention of such a right, however, does not prove that OKI exercised control over the manner in which Weeks did the work. "(I)t is not enough that [the owner] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right does not mean that the contractor is controlled as to his methods of work. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." (Citations and punctuation omitted.) Toys 'R' Us v. Atlanta Economic Dev. Corp., 195 Ga.App. 195, 196(1)(A), 393 S.E.2d 44 (1990). OKI did not retain such a right of supervision that Weeks was not entirely free to do the work in its own way. Rather, OKI surrendered the premises to Weeks, OKI did not interfere with Weeks' status as an independent contractor, Weeks had the duty of providing for the safety of its workers and OKI had no such duty. King v. Midas Realty Corp., 204 Ga.App. 590, 420 S.E.2d 62 (1992); Bryant v. Village Centers, 167 Ga.App. 220, 305 S.E.2d 907 (1983). Under these circumstances, the trial court did not err in granting summary judgment to OKI. Modlin v. Swift Textiles, 180 Ga.App. 726, 350 S.E.2d 273 (1986).

(b) The Engleharts argue that OKI ratified the alleged negligence of Weeks when OKI employee Spinks placed the plywood pieces back over the HVAC openings after taking measurements. OCGA § 51-2-5(6). "Ratification of the wrongful act may result from acceptance of the work on the theory that acceptance shifts the responsibility for maintaining the work in its defective condition to the employer. The ratification must be, not of the contract, but of the unauthorized wrong. Ordinarily, in order to ratify an act, one must have knowledge of the act." (Citations and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga.App. 259, 261(1) 363 S.E.2d 789 (1987). Here, OKI did not accept the fact that Weeks had covered the HVAC openings with plywood simply because Spinks observed the plywood. Spinks, who stated at his deposition that he has no OSHA construction site training, was not responsible for checking on the safety of the work site maintained by Weeks; rather, he was there simply to ensure that Weeks conformed to the contract drawings and specifications. Although Spinks had not previously seen plywood used to cover HVAC openings as a safety procedure at other construction sites, he testified that he does not know whether it is an...