Kull v. Six Flags Over Georgia II, LP, A01A2315.

• Decision Date: 26 November 2003
• Docket Number: No. A01A2315.,A01A2315.
• Citation: 264 Ga. App. 715,592 S.E.2d 143
• Parties: KULL v. SIX FLAGS OVER GEORGIA II, L.P.
• Court: Georgia Court of Appeals

592 S.E.2d 143

264 Ga. App. 715

KULL v. SIX FLAGS OVER GEORGIA II, L.P.

No. A01A2315.

Court of Appeals of Georgia.

November 26, 2003.

Reconsideration Denied December 16, 2003.

Shivers & Associates, Joseph D. Perrotta, Northcutt, Edwards & Feingold, Louis R. Feingold, King & Hobbs, Joseph H. King, Jr., Atlanta, for appellant.

Savell & Williams, Robert E. Mulholland, Alston & Bird, Andrew M. Gibson, Heather R. Peoples, Atlanta, for appellee.

SMITH, Chief Judge.

This is the second appearance of this case before this court. In Kull v. Six Flags Over Ga., 254 Ga.App. 897, 564 S.E.2d 747 (2002), this court reversed the grant of summary judgment to Six Flags on Kull's personal injury claim. The Supreme Court of Georgia reversed in Six Flags Over Ga. v. Kull, 276 Ga. 210, 576 S.E.2d 880 (2003), and remanded for us to address "the question of whether OSHA regulations apply to this litigation, and if so whether the evidence compels a finding that Kull was contributorily negligent per se. This issue must be decided in order to determine whether the grant of summary judgment was appropriate." Id. at 212, 576 S.E.2d 880. After a review of the record, we conclude that OSHA regulations do apply here and that the evidence indeed compels a finding of per se contributory negligence on the part of Kull. We therefore affirm the judgment of the trial court.

A detailed account of the relevant facts may be found in the earlier appearance of this case. Kull, supra, 254 Ga.App. 897, 564 S.E.2d 747. In brief, Kull's employer, Mahalo Advertising, was under contract to maintain an electronic scoreboard on the Six Flags property. In the course of maintaining this scoreboard, Kull did not turn off the power to the board and did not check the circuit because he believed that a fuse had blown. But, due to a wiring defect in the nearby transformer box, the circuit remained energized. Kull was in the process of replacing a light bulb when he broke the glass globe and used a pair of metal pliers in an attempt to grasp the metal base of the bulb and remove it. The still-energized circuit shocked Kull and threw him from the ladder, causing his injuries. Id. at 899, 564 S.E.2d 747.

"As the trial court recognized, generally, negligence per se arises when a statute or ordinance is violated. The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty." (Citations omitted.) Hubbard v. Dept. of Transp., 256 Ga. App. 342, 349-350(3), 568 S.E.2d 559 (2002).

[B]efore negligence per se can be determined, a trial court must consider (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm the statute was intended to guard against. Finally, if the court finds negligence per se, the plaintiffs must then demonstrate a causal connection between the negligence per se and the injury. And it is generally a jury question as to whether or not such negligence proximately caused the injury.

(Citations and punctuation omitted.) Hubbard, supra at 350, 568 S.E.2d 559. Here, Kull was required by 29 USC § 654(b) to "comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct."

OSHA regulations governing electrical safety-related work practices apply both to qualified and unqualified persons "working on, near, or with" premises wiring in or on buildings "and on other premises such as yards, carnival, parking, and other lots." 29 CFR § 1910.331(a), (a)(1). In addition, the Standard for Electrical Safety Requirements for Employee Workplaces promulgated by the National Fire Protection Association (NFPA 70E) has been incorporated by reference into the OSHA standards. 29 CFR § 1910.6(q)(16). The Introduction to NFPA 70E, § 1-2.1 provides definitions that "apply wherever the terms are used throughout this standard." This section contains the following definition: "Exposed. (As applied to live parts.) Capable of being inadvertently touched or approached nearer than a safe distance by a person. It is applied to parts not suitably guarded, isolated, or insulated." Part II, NFPA 70E, Chapter 1, § 1-5 defines "[e]nergized" as "[e]lectrically connected to a source of potential difference, or electrically charged to have a potential significantly different from that of earth in the vicinity." The socket containing the remains of the broken bulb was both energized and exposed within the meaning of these definitions. OSHA regulations, including the NFPA standards, therefore apply to Kull's unsuccessful attempt to remove the broken bulb from the socket.

Kull violated OSHA regulations and NFPA standards governing electrical safety in numerous respects. Most importantly, he failed to "deenergize" (shut off power to) the scoreboard, in violation of 29 CFR § 1910.333(a)(1). In connection with this failure, he also failed to lock out or tag the circuit energizing the part as required by 29 CFR § 1910.333(b)(2) or to confirm that the circuit was deenergized as required by 29 CFR § 1910.333(b)(2)(iv). Part II, NFPA 70E, Chapter 2, § 2-3.1.3 likewise requires deenergizing circuits, lockout or tagout, and the use of an adequately rated voltage detector to verify that each circuit part is deenergized.

Kull also failed to use a ladder with nonconductive siderails¹ as required by 29 CFR § 1910.333(c)(7) and Part II, NFPA 70E, Chapter 2, § 3-4.3.1. In addition, Kull, while working on an energized circuit or a circuit that he did not know to be deenergized, 29 CFR § 1910.333(b)(1), failed to use insulated tools, 29 CFR § 1910.335(a)(1)(i), or personal protective equipment properly rated for the voltage, 29 CFR § 1910.335(a)(2)(i); 29 CFR § 1910.137. Kull acknowledged that he did not know the rating of his pliers other than that they were not high voltage rated.

Kull's injury was caused directly by his insertion of a metal tool of unknown insulating capacity into an energized and exposed electrical component while standing on a conductive ladder, without shutting off the power or employing a circuit tester or voltmeter to verify that the circuit was not energized. The concurrence of all these violations of OSHA regulations and NFPA standards created a path to ground for the electrical current through Kull's body, shocking him and causing him to fall from the ladder.

"A plaintiff's contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the defendant." (Citation and footnote omitted.) North Ga. Elec. Membership Corp. v. Webb, 246 Ga.App. 316, 319(2), 540 S.E.2d 271 (2000). The facts of this case are strikingly similar to those in Beamon v. Ga. Power Co., 199 Ga.App. 309, 404 S.E.2d 463 (1991). Beamon received an electric shock while working on a Georgia Power transformer. He alleged that Georgia Power had negligently installed the transformer in contact with a ground wire, contributing to his injury. We held that the defective installation

could have done nothing more than give rise to the occasion which made appellant's injuries possible. Other circumstances preponderated in causing appellant's injuries. Specifically, the evidence was undisputed that had appellant been wearing insulated gloves or had the wires been properly covered, his injury would not have occurred. This court has adhered to the rule that only where the evidence is plain and palpable will negligence, contributory negligence or the exercise of ordinary care for one's own safety be decided by the court as a matter of law, and such is the legal situation in this case. Accordingly, the trial court did not err in granting summary judgment to Georgia Power.

(Citations and punctuation omitted.) Id. at 312, 404 S.E.2d 463. Here, as in Beamon, the defective wiring in the transformer box merely "[gave] rise to the occasion which made appellant's injuries possible." Id. Had Kull not violated the OSHA and NFPA requirements that he turn off the power, tag out the circuit, check to verify that the circuit was deenergized, and use appropriately insulated tools and equipment near a circuit he did not know to be deenergized, his injury would not have occurred.

Kull's conduct fulfills all the requirements of negligence per se. The OSHA regulations and NFPA standards as adopted by OSHA are mandatory and have the force of law, Kull was in the protected class, the harm he suffered was the type of harm the NFPA regulations were intended to guard against, and his negligence per se proximately caused his injuries. Hubbard, supra at 350, 568 S.E.2d 559. His actions constituted contributory negligence as a matter of law. The trial court therefore did not err in granting summary judgment.

Judgment affirmed.

BLACKBURN, P.J., MILLER, PHIPPS and MIKELL, JJ., concur.

BARNES and ADAMS, JJ., dissent.

BARNES, Judge, dissenting.

As I cannot concur with affirming the grant of summary judgment to Six Flags in this case, I must respectfully dissent. I cannot agree with the majority's conclusions that Six Flags established that Kull's actions caused his injuries or that OSHA and National Fire Protection Association (NFPA) 70E, the Standard for Electrical Safety Requirements for Employee Workplaces, apply to Kull's activities.

1. Giving Kull the benefits of the presumptions, inferences, and construction of the evidence that our summary judgment law requires, Kull v. Six Flags Over Ga., 254 Ga.App. 897, 898(1), 564 S.E.2d 747 (2002), the evidence shows that

Kull was escorted to the sign by a Six Flags employee who turned the power on and told Kull that a lot of bulbs were out. Kull checked the scoreboard visually for obvious dangers and made sure everything functioned properly. He saw no obvious problems, and

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