Fennell v. Max Rittenbaum, Inc.
| Decision Date | 11 April 1991 |
| Docket Number | No. A91A0265,A91A0265 |
| Citation | 405 S.E.2d 546,199 Ga.App. 619 |
| Parties | FENNELL et al. v. MAX RITTENBAUM, INC. |
| Court | Georgia Court of Appeals |
Jerry B. Hatcher, Atlanta, for appellants.
Darroch & Obenshain, Robert M. Darroch, Cynthia B. Smith, Daniel N. Meyer, Atlanta, for appellee.
Appellant Joyce Fennell brought suit for injuries sustained when she was struck by a forklift operated by an employee of appellee Max Rittenbaum, Inc. d/b/a Clean Rite Products (Clean Rite), as she attempted to return to her work site after initiating a phone call to Paulding Enterprises to report the conduct of a retarded person under her supervision. Appellant Jim Fennell, husband of Joyce Fennell, joined in the suit averring a loss of consortium claim. This is an appeal of the trial court's order granting appellee's motion for summary judgment.
Paulding Enterprises, employer of Joyce Fennell, is a private day-care center that provides a variety of services for eligible mentally retarded persons ("clients") in Paulding County. Paulding Enterprises (Paulding) is required to conform to certain state policies and procedures. Joyce Fennell is an employee of Paulding. Paulding entered an agreement with appellee Clean Rite to provide "clients" to be hired as employees of Paulding primarily to place and seal cleaning items, usually rags and sponges, properly into plastic bags. The contract also required that "clients" be supervised by a paid employee of Paulding. Appellant Joyce Fennell was that supervisor. Clean Rite is the marketing name by which appellant Max Rittenbaum, Inc., sells automotive cleaning aids; Clean Rite's distribution is mass merchandisers, automotive distributors and automotive retailers.
It was averred by appellants and admitted in the answer of appellee that Clean Rite "is a corporation which processes, packages, and sells cleaning rags and towels to other companies and businesses," and that the "clients" were "to pack and put rags into bags for shipment to other businesses." Clean Rite would inform appellee Joyce Fennell of the work to be done each day, and she would supervise the "clients" to see that it was done properly and that Clean Rite safety policies were followed. Paulding, not Clean Rite, was responsible for "clients' " discipline. On occasions, Clean Rite would show Joyce Fennell how to do a task; then she would show the clients. Clean Rite provided all the rags, boxes, and bags used by the "clients." At the end of the day Joyce Fennell turned in a form to Clean Rite reflecting the number of boxes produced that day. Held:
1. Appellee in essence asserts and the trial court has found that Clean Rite was a statutory employer of Joyce Fennell, within the meaning of OCGA § 34-9-8(a), and thus the workers' compensation rights and remedies exclude all other rights and remedies of employee Joyce Fennell on account of her injury at appellee's plant. If this conclusion is correct, the consortium claim of appellee Jim Fennell likewise would be without merit. See generally Ponder v. Southern Tea Co., 170 Ga.App. 819, 318 S.E.2d 242; Hiers & Potter, Ga. Workers' Compensation--Law & Practice (2d ed.), § 8-3.1.
2. Appellants primarily assert that the trial court erred as appellee was not a statutory employee under the precedent of Manning v. Ga. Power Co., 252 Ga. 404, 314 S.E.2d 432 and Modlin v. Black, etc., Mfg. Co., 170 Ga.App. 477, 317 S.E.2d 255. Accord Singleton v. Ga. Pacific Corp., 252 Ga. 557, 315 S.E.2d 876. These cases hold that a mere owner of the premises where the injury occurred is not a statutory employer. Compare Menard v. Fairchild, 254 Ga. 275(2), 328 S.E.2d 721.
We are satisfied that Manning, Modlin, and their progeny are not controlling in this case, as the record establishes without the existence of any genuine issue of material fact to the contrary that appellee was not merely in possession or control of the premises but was actively involved in the enterprise in which the employee was injured, and that under the existing circumstances Clean Rite was the statutory employer of appellant Joyce Fennell.
This court held in Western Elec. Co. v. Capes, 164 Ga.App. 353, 296 S.E.2d 381 that before an owner can be considered a statutory employer, the work the owner had contracted to be done must be an essential part of the owner's overall business or enterprise. Id. at 356, 296 S.E.2d 381; compare Troxler v. Owens-Illinois, 717 F.2d 530 (5) & (6) (USCA 11th Cir.); see generally 21 Ga.St.Bar J....
To continue reading
Request your trial
-
Yoho v. Ringier of America, Inc.
...531, 422 S.E.2d 563 (1992); Travelers Ins. Co. v. McNabb, 201 Ga.App. 297, 303(3), 410 S.E.2d 788 (1991); Fennell v. Max Rittenbaum, Inc., 199 Ga.App. 619(2), 405 S.E.2d 546 (1991); Winn-Dixie Atlanta, Inc. v. Couch, 193 Ga.App. 352, 387 S.E.2d 590 (1989); Whitehead v. CHP, Ltd., 192 Ga.App......
-
Falagan v. Georgia Power Co.
...The criteria by which a statutory employer may be identified has been stated in several recent cases. See Fennell v. Max Rittenbaum, Inc., 199 Ga.App. 619, 620, 405 S.E.2d 546; Whitehead v. CHP, Ltd., 192 Ga.App. 417, 418, 385 S.E.2d 124; and Wright v. M.D. Hodges Enterprises, 183 Ga.App. 6......
-
Yoho v. Ringier of America, Inc., A92A2054
...Travelers Ins. Co. v. McNabb, 201 Ga.App. 297(3), 410 S.E.2d 788 (1991) (cert. den. 201 Ga.App. 904 (1992)); Fennell v. Max Rittenbaum, 199 Ga.App. 619(2), 405 S.E.2d 546 (1991) (cert. den. 199 Ga.App. 906 (1991)); Winn-Dixie Atlanta v. Couch, 193 Ga.App. 352, 387 S.E.2d 590 (1989) (cert. d......
-
Fowler-Flemister Concrete, Inc. v. Sumner, FOWLER-FLEMISTER
...385 S.E.2d 124 (1989). Plaintiff's task was essential to defendant's cement manufacturing business. See Fennell v. Max Rittenbaum, Inc., 199 Ga.App. 619, 620(2), 405 S.E.2d 546 (1991). He was injured while rendering substantial service in connection with defendant's manufacturing equipment.......