Miller v. Turner Broad. Sys., Inc.

• Decision Date: 18 November 2016
• Docket Number: A16A1403
• Citation: 339 Ga.App. 638,794 S.E.2d 208
• Parties: Miller et al. v. Turner Broadcasting System, Inc. et al.
• Court: Georgia Court of Appeals

339 Ga.App. 638

794 S.E.2d 208

Miller et al.

v.Turner Broadcasting System, Inc. et al.

A16A1403

Court of Appeals of Georgia.

November 18, 2016

Peter Andrew Law, Atlanta, Ernest Michael Moran, Darren Summerville, Atlanta, for Appellant.

Michael Anthony Melonakos, Alan William Bakowski, Edward H. Lindsey Jr., Courtney Elaine Ferrell, Daniel S. Reinhardt, Atlanta, for Appellee.

Peterson, Judge.

An electrical worker shuts off the circuit breaker to allow him and his colleague to work on wires. But the circuit breaker was mislabeled (or so we must presume on summary judgment), and the circuit remains live. After the worker's colleague is shocked and tells the worker so, the worker—adamant he turned off the circuit—climbs a ladder to investigate what shocked his colleague. After a few brief seconds of investigation, the worker is electrocuted and falls to the ground, injuring his head. His injuries leave him unable to testify as to what he did while investigating. Appellees, defendants in the ensuing lawsuit, argue that we should presume from the silent record that his investigation was negligent, and thus summary judgment for them should be affirmed. We disagree and reverse, because Appellees' argument turns the burden at summary judgment on its head.

Ronald Miller, individually and as legal guardian and conservator for Justin Miller, and Justin Miller ("Miller"), individually, (collectively referred to herein as "Appellants") appeal the trial court's grant of summary judgment in favor of Turner Broadcasting System, Inc. ("TBS"), Turner Properties, Inc. ("Turner Properties") (both collectively referred to as the "Turner Defendants"), Inglett & Stubbs, LLC ("I&S"), and Skanska USA Building, Inc. ("Skanska") (all four defendants collectively referred to as "Appellees") on Appellants' claims seeking to recover damages resulting from Miller's near-fatal electrocution on TBS property.

On appeal, "[w]e review de novo a trial court's grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party." Latson v. Boaz , 278 Ga. 113, 113, 598 S.E.2d 485 (2004). "To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant's favor, warrant judgment as a matter of law. OCGA § 9-11-56 (c)." Id.

Construed in favor of the Appellants, the evidence shows that in 2006 and 2007, Skanska worked on the build-out of a building on Techwood Drive (the "Techwood campus building"), which was owned by TBS and managed by Turner Properties. I&S was an electrical sub-contractor for Skanska on that project. In the course of that work, I&S performed electrical work on the fourth floor of that building, including installing and labeling a junction box in the ceiling of a conference room (the "Junction Box") and labeling a panel containing circuit breakers that energized the box (the "Panel").

Several years later, on the morning of November 13, 2009, Gallagher Electric and Engineering Company, Inc. ("Gallagher") was performing electrical work as a sub- contractor to Leapley Construction Group of Atlanta, LLC ("Leapley") at the Techwood campus building. Turner Properties had contracted with Leapley to build a new "Digital Delivery" office on the fourth floor of the building (the "Project").

That morning, Gallagher foreman Bobby Darnell met with two Gallagher employees, Paul Nipper, a journeyman electrician, and Miller,¹ an electrician's helper, to discuss the work they would be performing. Nipper and Miller were assigned the job of installing wall-mounted light fixtures on the fourth floor, which required re-routing electrical wires from the Junction Box in the ceiling to the light fixtures. The two men were not authorized to work on live wires, only deenergized wires. Therefore, before beginning work, Miller and Nipper first had to cut the power to the Junction Box.² Miller climbed a ladder to inspect the Junction Box, which contained the number "SP4 15." Nipper testified that this number should have corresponded to Circuit Number 15 on the Panel in the electrical room, indicating that Circuit 15 controlled the power to the Junction Box.

Miller then went into the electrical room containing the Panel. No one else was present to observe what actions Miller took there. When he returned, Miller told Nipper that he had turned off the circuit breaker to the Junction Box, locked the Panel door, and locked the electrical room door. In certain circumstances,³ federal workplace safety regulations mandate that electrical workers follow a "lockout/tagout" procedure, which requires not only that they trip the circuit breaker, but that they also put a lock on the breaker handle to prevent it from being turned back on and/or that they tag the breaker. See 29 CFR § 1910.333 (b) (2). This procedure ensures that no one else will reenergize the line while work is being performed. See 29 CFR § 1910.333 (b) (2) (iii) (A). The regulations also require that before any circuit or equipment "can be considered and worked as deenergized," workers must verify that they have turned off the proper circuit with the use of testing equipment, such as a "tic tracer," to ensure that they have locked and tagged out the proper circuit. See 29 CFR § 1910.333 (b) (2) (iv) (B).⁴ Miller's employer testified that Miller was familiar with the lockout/tagout procedure when he came to work with Gallagher and that Gallagher provided him further training on the procedure.

Nipper said that he personally did not follow any lockout/tagout procedure that day, and he did not know whether Miller had done so.⁵ Nipper also stated that he did not use a tic tracer before beginning to work on the Junction Box, and he did not see Miller use one, although he stated it could have been in Miller's shirt pocket.

At the work site, Nipper was the first to climb the ladder to the Junction Box. When he removed a wire nut in the box in order to separate some of the wires, he was "hit [hard] with electricity." Nipper said the charge went up his arm and was very painful. He descended the ladder and told Miller that the circuit was not off. Miller replied that he had turned it off. Although Nipper suggested that they check the circuit breakers first, Miller went directly up the ladder to the Junction Box. About 20-30 seconds after reaching the ceiling, Miller said that Nipper had been hit with a "neutral" wire.⁶ Nipper then saw Miller's knees buckle. At that point, Nipper said that he knew Miller "was on the electricity," and he asked two nearby men to knock the ladder out from under Miller while Nipper tried to catch him. Unfortunately, Miller slipped through Nipper's arms as he fell, hitting his head on the floor, resulting in severe injuries.

Nipper summoned Darnell and asked someone to report the incident to security. Nipper testified that after emergency medical personnel arrived to tend to Miller, Darnell told him that the circuit was mislabeled. However, Darnell did not recall making that statement and, in fact, said he did not check the panel until weeks later because Gallagher employees were not permitted on the floor while Turner Properties was investigating the incident.

James "Tex" Walters, the director of facility operations for Turner Properties, also came to the scene of the incident, and while Miller was still receiving emergency medical treatment, he directed two of Turner Properties' electricians, James Randall Duke and Thomas Byrd, Jr., to make the Junction Box safe by turning off the circuit, insulating or capping off any exposed wires in the box, and then reenergizing the circuit. The electricians first determined that the box was, in fact, energized. Byrd then climbed the ladder to the Junction Box, while Duke went to the Panel in the electrical room. Upon entering the electrical room, Duke found no evidence that any of the breakers had been locked or tagged out.⁷ To deenergize the Junction Box, Duke began shutting off circuits individually, as Byrd tested the wires in the Junction Box with a meter to see if they had power, communicating the results by radio. Based on this exercise, Byrd came to the conclusion that Circuit 13 controlled the power to the Junction Box. However, the Panel schedule labeled that circuit as a "Spare," which indicated that it did not control power to any location, and Circuit 15 was labeled "Break/Conference Room." Byrd subsequently changed the Panel schedule by scratching out the word "Spare" next to Circuit 13 and handwriting in the word "East Conf[erence]" to indicate the room in which the Junction Box was located.⁸

When Gallagher was allowed back on the work site, Darnell and another Gallagher employee returned to complete the work begun by Nipper and Miller. At that point, a Turner Properties employee informed them which circuit controlled the Junction Box, and they ensured that it was locked out during their work. At that time, the label on the Junction Box was apparently changed to reflect that Circuit 13 controlled the box, instead of Circuit 15.

Appellants filed a timely suit against the Turner Defendants, Skanska, and I&S, among others, asserting negligence claims. Following discovery, the Appellees moved for summary judgment on the grounds that Miller (1) failed to exercise due care as a matter of law; (2) assumed the risk of his injuries; and (3) had superior or equal knowledge of the hazard. Additionally, the Turner Defendants argued that they lacked control over the premises at the time of Miller's injuries. Skanska and I&S also argued that the record contained no evidence that they were responsible for any mislabeling of the circuit.

The trial court granted the motions for summary judgment, holding that as to all four defendants, Miller's "actions in disregarding Mr. Nipper's warning and proceeding to work on a line that he had reason to believe was live were the sole proximate cause of his injuries." The trial court further found...