Flagler Co. v. Savage

• Decision Date: 01 June 1988
• Docket Number: 45392,Nos. 45391,s. 45391
• Citation: 368 S.E.2d 504,258 Ga. 335
• Parties: The FLAGLER COMPANY et al. v. SAVAGE. KRAUSE v. SAVAGE.
• Court: Georgia Supreme Court

Page 504

368 S.E.2d 504

258 Ga. 335

The FLAGLER COMPANY et al. v. SAVAGE.

KRAUSE v. SAVAGE.

Nos. 45391, 45392.

Supreme Court of Georgia.

June 1, 1988.

Reconsideration Denied June 22, 1988.

Michael J. Goldman, Freeman & Hawkins, Atlanta, for The Flagler Co., et al.

Julian M. Treadaway, Johnson & Treadaway, Marietta, Michael Goldman, Freeman, Hawkins, Tommy T. Holland, Carter & Ansley, Stephen L. Cotter, Swift, Currie, McGhee & Hiers, Alan L. Newman, Long, Weinberg, Ansley & Wheeler, John D. Sours, Wasson, Sours & Harris, Atlanta, for Iva Kathleen Savage.

J. Kenneth Moorman, Alan L. Newman, Atlanta, for Alan M. Krause.

MARSHALL, Chief Justice.

Ron Savage and a group of his friends had a few drinks at the Rusty Scupper Restaurant on Windy Hill Road and Interstate North, in Cobb County. When the restaurant closed at about 2:00 a.m., Ron left his automobile in the restaurant's parking lot, and he and his friends left to continue their drinking and/or entertainment elsewhere. When he returned to retrieve his automobile at around 3:00 a.m., he walked into the "woods" to relieve his bladder, only to fall 70 feet to his death over a concealed precipice adjacent to the parking lot, the lack of warnings or barricades at which formed the basis of this wrongful-death action by his mother.

Defendant Borel-Stouffer, which is not an appellant herein, was a former owner of the property, and it constructed the restaurant and parking lot pursuant to building plans and specifications provided by its architect; the building contractor was defendant-appellant Flagler. After Flagler had completed construction of the restaurant and parking lot, the underlying fee was conveyed by Borel-Stouffer to defendant-appellant Krause, who proceeded to lease the property back to Borel-Stouffer for a period of 25 years.

The trial court granted summary judgment in favor of Flagler and Krause, among others. A majority of the Court of Appeals reversed. Savage v. Flagler Co., 185 Ga.App. 334, 364 S.E.2d 52 (1987). (See that opinion for a full statement of the facts.) We granted certiorari to review that ruling as to appellants Flagler and Krause.

1. Case No. 45391 (Flagler). " '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 unskillful or negligent execution of the work the contractor (and usually not the employer) is liable ... It follows that if the landlord designs the construction of the work or outlines the nature of the repairs that are to be done, the independent contractor incurs no liability to the tenant for injuries resulting from improper construction or inadequacy of the repairs, if he follows the directions given him and is not guilty of negligence in the particular manner in which he performs the specific work he has contracted to do.' Bell & Son v. Kidd & Roberts, 5 Ga.App. 518, 520, 63 S.E. 607. See also PPG Indus. v. Genson, 135 Ga.App. 248, 251(2), 217 S.E.2d 479 (1975). However, a contractor is not 'entitled to put on blinders and ignore serious and dangerous defects in a design given to the contractor to execute.' Shetter v. Davis Bros., 163 Ga.App. 230, 231, 293 S.E.2d 397 (1982). See also Restatement of the Law, Second, Torts § 404, Comment a., p. 364." Cooper v. Garmon Bros. Contractors, 166 Ga.App. 839, 305 S.E.2d 499 (1983).

The evidence here showed that, after the bids for the work were submitted by various construction companies, defendant/then-owner Borel-Stouffer deleted a protective structure from the plans and specifications. Flagler, an independent contractor, built the restaurant and premises according to the plans and specifications, which had been modified so as to move the parking lot back far enough to just clear the precipice. The completed project was approved by the then owner, Borel-Stouffer, and the architect, both of which were aware of the existence of the precipice and the lack of any protective warnings or barricades. Flagler did not participate in the design of the project, was not called upon to maintain or inspect it after its acceptance, and actually informed the property owner of this particular danger. The injury here thus was caused by a static condition adjacent to the project, of which the owner, as well as the architect, was completely aware, rather...