Harris v. City of Chattanooga, Tenn.

• Citation: 507 F. Supp. 365
• Decision Date: 16 December 1980
• Docket Number: Civ. A. No. C79-92R.
• Parties: Rose HARRIS, Plaintiff, v. CITY OF CHATTANOOGA, TENNESSEE d/b/a Electric Power Board, C & I Specialty Co., Inc., Hildebrand & Adair, Defendants.
• Court: U.S. District Court — Northern District of Georgia

507 F. Supp. 365

Rose HARRIS, Plaintiff, v. CITY OF CHATTANOOGA, TENNESSEE d/b/a Electric Power Board, C & I Specialty Co., Inc., Hildebrand & Adair, Defendants.

Civ. A. No. C79-92R.

United States District Court, N. D. Georgia, Rome Division.

December 16, 1980.

COPYRIGHT MATERIAL OMITTED

Harry Weill, Weill, Ellis, Weems & Copeland, Chattanooga, Tenn., James S. Kilpatrick, Covington, Kilpatrick, Storey, Covington & Durham, Rome, Ga., for plaintiff.

Robert M. Brinson, Brinson, Askew & Berry, Rome, Ga., for City of Chattanooga.

William E. Davidson, Smith, Shaw, Maddox, Davidson & Graham, Rome, Ga., for Hildebrand & Adair.

David A. Handley and Jonathan H. Waller, Gambrell, Russell & Forbes, Atlanta, Ga., for C & I.

ORDER

HAROLD L. MURPHY, District Judge.

This is a wrongful death action arising out of the death of plaintiff's husband while he was engaged in a construction project in Rossville, Georgia. The deceased, Will Andy Harris, Sr., was electrocuted while dismantling a scaffolding. Defendant City of Chattanooga maintained the high voltage power lines; defendant Hildebrand & Adair was the architectural firm on the project; defendant C & I was the general contractor. The deceased was employed by a masonry subcontractor, Painter & Varnell, which is no longer a party to this action. Defendant Hildebrand & Adair's motion for summary judgment was granted by this Court on September 29, 1980. Defendant C & I's motion for summary judgment is now before the Court.

Defendant's motion for summary judgment is predicated on (1) an immunity to liability generated by the Workmen's Compensation Act, Ga.Code, § 114-103; and (2) the negligence of the plaintiff alleged to be of sufficient magnitude to bar recovery.

I

IMMUNITY FROM SUIT

Ga.Code § 114-103 provides in pertinent part,

The rights and the remedies herein granted to an employee shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service or death: Provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor ...

C & I argues that Painter & Varnell (hereinafter "P & V") was in a master-servant relationship with C & I; consequently, the deceased was a servant of C & I, and the Workmen's Compensation Act bars any recovery in tort against such an employer. The sole question is whether C & I and P & V were in a master-servant relationship. If not, then P & V was an independent contractor, and the claim against C & I, a third-party tortfeasor, would not be foreclosed by § 114-103.

Jurisdiction of this case arises from 28 U.S.C. § 1332. The Court is bound by Georgia substantive law in reaching its decision. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). There is confusion in the reported decisions in Georgia about how to determine whether an employee is a servant or an independent contractor. The chaos does not permit a simple summation of the criteria to be considered. Indeed, the cases frustrate any effort at formulating a comprehensive rule, and can be characterized most accurately as a body of cacophonous case law. To venture an analysis of the Georgia law—as this Court must under the Erie doctrine—would tax the most imaginative student. Each case is a Siren, luring the unwary student into a maelstrom of inconsistencies. To navigate this body of law, the Court utilizes as its lodestar the concept of control; the right to control, not necessarily the exercise of that right.

The Georgia courts recognize the difficulties confronting any court faced with this question. Hodges v. Doctors Hospital, 141 Ga.App. 649, 651, 234 S.E.2d 116 (1977) ("In ascertaining what relation exists, the requirements are neither complex nor uncertain, but their application is extremely difficult."); Bentley v. Jones, 48 Ga.App. 587, 589, 173 S.E. 737 (1934) ("The books teem with discussion of the difference between independent contractors and servants."); Traveler's Ins. Co. v. Moates, 102 Ga.App. 778, 780, 117 S.E.2d 924 (1960) ("In claims for compensation under the Workmen's Compensation Act, where the question is whether the injured person, or the person under whom he was working, occupied the relation of an employee or of an independent contractor toward the alleged employer, the line of demarkation is often so close that each case must be determined upon its own particular facts."). Certain aspects of the law, however, are clear. First, in determining whether or not the relationship of master and servant prevails in a compensation case, the same principles that exist under the common law obtain. Fidelity & Cas. Co. of N. Y. v. Windham, 209 Ga. 592, 593, 74 S.E.2d 835 (1953). Second, consideration must be given to the contract as a whole, with no special emphasis to be afforded any particular provision. Blair v. Smith, 201 Ga. 747, 751, 41 S.E.2d 133 (1947); Buffalo Forge Co. v. Southern Ry. Co., 43 Ga.App. 445, 449, 159 S.E. 301 (1931). Third, the question is characterized properly as one of fact, rather than law. American Fire & Cas. Co. v. Davidson, 116 Ga.App. 255(1), 157 S.E.2d 55 (1967); Smith v. Poteet, 127 Ga.App. 735, 738, 195 S.E.2d 213 (1972).¹

Fourth, the Georgia courts invariably formulate the issue in the following way:

Whether the contract gives, or the employer assumes the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in corformity to the contract.

Blair v. Smith, 201 Ga. 747, 748, 41 S.E.2d 133 (1947); Forte v. Lewis, 241 Ga. 109, 110, 243 S.E.2d 38 (1978); Yearwood v. Peabody, 45 Ga.App. 451, 164 S.E. 901 (1932). Variations of, or elaborations on, that standard phraseology are rare, and for the most part, of little help. E. g., Bentley v. Jones, 48 Ga.App. 587, 590, 173 S.E. 737 (1934) ("An independent contractor is a person employed to perform work on the terms that he is to be free from the control of the employer as respects the manner in which the details of the work are to be performed."). One successful effort to explicate further the test was in Employer's Mutual Liability Ins. Co. of Wausau v. Johnson, 104 Ga.App. 617, 620, 122 S.E.2d 308 (1961), where the Court explained,

The right to control the time of doing the job means the right to control the hours of work. The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he should use and procedures he shall follow.

A wide variety of indicia of control, or lack of control, have been scrutinized by Georgia courts. The application of these criteria, however, has not always been consistent.

1. The right of the employer to make additional plans and specifications; to impose his will in lieu of contractual provisions; and to direct the work step-by-step.

In Davis v. Starrett Brothers, Inc., 39 Ga.App. 422, 147 S.E. 530 (1929), the Court relied on the employer's right to alter unilaterally the plans and specifications, as proof that the relationship was master/servant rather than independent contractor. In Blair v. Smith, 201 Ga. 747, 41 S.E.2d 133 (1947), the Court examined a similar contractual provision, but emphasized that the contract in Blair required agreement between the contractor and subcontractor before a change in specifications would be permitted. In Starrett, the Court concluded that the employee was a servant; in Blair, the Court concluded that the employee was an independent contractor.

In Employer's Mutual Liability Ins. Co. of Wausau v. Johnson, 104 Ga.App. 617, 619-20, 122 S.E.2d 308 (1961), the Court decided that "the right to change the work," is "thoroughly consistent with the existence of the relationship of employer and independent contractor." But in St. Paul-Mercury Indem. Co. v. Alexander, 84 Ga.App. 207, 65 S.E.2d 694 (1951), the Court relied on the employer's right to "add to, or take from, the work to be performed without consulting the other party" as strong evidence that the employee was a servant.

In Cooper v. Dixie Const. Co., 45 Ga.App. 420, 165 S.E. 152 (1932), the Court considered a contract which permitted the employer to order the employee to change certain work. The Court concluded that the employee was an independent contractor. But in American Automobile Ins. Co. v. Tanner, 97 Ga.App. 122, 101 S.E.2d 875 (1958) the Court decided that if the employer has the right to give daily orders to the employee, then the employee is a servant.

In Louisville & Nashville R.R. v. Hughes, 134 Ga. 75, 67 S.E. 542 (1909), the contract contained the following clause,

The work under this contract shall at every stage of its progress—from beginning to end—be subject to the direction, inspection, and acceptance of the employer, who shall determine what in any case is a fair construction of the contract and what such construction requires to be done by either party.

The Court concluded that the employee was an independent contractor. But in Old Republic Ins. Co. v. Pruitt, 95 Ga.App. 235, 97 S.E.2d 521 (1957), the Court held,

The only reasonable construction that can be placed on the contract provision that the claimant would "carry out and complete" the construction "as" and "when" directed by ... the construction chief of the employer .... is that the employer thought its construction chief could control the time and manner of the claimant's performance of the contract.

id. at 236, 97 S.E.2d 521. The employee was found to be a servant.

The Georgia Courts have also seesawed on the proper evaluation of the relationship when the employer continuously "points out" the work to be performed by the employee. The following cases illustrate the confusion. In Liberty Lumber Co. v. Silas, 49 Ga.App. 262, 175 S.E. 265 (1934), the employer directed which trees were to be...