Murphy v. Blue Bird Body Co., A92A2377

• Decision Date: 16 March 1993
• Docket Number: No. A92A2377,A92A2377
• Citation: 429 S.E.2d 530,207 Ga.App. 853
• Parties: MURPHY v. BLUE BIRD BODY COMPANY.
• Court: Georgia Court of Appeals

Page 530

429 S.E.2d 530

207 Ga.App. 853

MURPHY v. BLUE BIRD BODY COMPANY.

No. A92A2377.

Court of Appeals of Georgia.

March 16, 1993.

Sweat & Giese, David R. Sweat, Jeffrey A. Johnson, Athens, for appellant.

Smith, Gambrell & Russell, Edward H. Wasmuth, Jr., Thomas W. Rhodes, Cheryl O. Thorpe, Stacey, Sanders & McAlpine, James M. Sanders, Atlanta, for appellee.

POPE, Chief Judge.

Plaintiff James P. Murphy appeals the trial court's grant of summary judgment in favor of defendant Blue Bird Body Company ("Blue Bird").

Blue Bird entered into a contract with defendant Applied Coating Technologies, Inc. ("ACT") whereby ACT agreed to install a paint finishing system at Blue Bird's LaFayette plant (R.631-36). One of the components of the system installed by ACT was a suction fan. After the system became operational, employees of Blue Bird noticed the fan was noisy and contacted the President of ACT, defendant Michael Jenkins, to request that he repair the fan. Jenkins hired plaintiff to come to the Blue Bird plant on a Saturday, while the plant was not in operation, to repair the fan.

Jenkins met plaintiff at the plant and let him inside using a key provided for Jenkins' use during the installation of the paint finishing system. Although plaintiff testified he saw two Blue Bird employees outside the plant when he was waiting for Jenkins to arrive, neither Jenkins nor plaintiff observed Blue Bird employees inside the plant while they worked on the fan. Plaintiff first examined an area of the fan accessible by stairs. Plaintiff then determined he also needed to examine the outside of the fan, which was not accessible by stairs. He asked Jenkins for a ladder to use to reach the outside of the fan. Jenkins offered instead to get a forklift and a basket for plaintiff to use to reach the outside of the fan. Jenkins then retrieved a forklift and parts basket owned by Blue Bird. Plaintiff entered the parts basket with the tools he needed and Jenkins used the forklift to lift plaintiff to the outside area of the fan. Although Jenkins and plaintiff offer different theories or explanations about why the parts basket fell from the forklift, it is undisputed that the basket was not attached in any manner to the forklift and while plaintiff was working on the fan, the basket fell from the forklift and plaintiff was injured when he fell from the basket.

Plaintiff filed suit against Jenkins, ACT and Blue Bird seeking compensation for his injuries. Jenkins and ACT also filed cross-claims against Blue Bird. Blue Bird moved for summary judgment on all claims asserted against it in plaintiff's complaint and the cross-claims. The trial court granted that motion. Plaintiff appeals the grant of summary judgment to Blue Bird on plaintiff's complaint.

1. Plaintiff contends the superior court erred in granting summary judgment to Blue Bird because genuine issues of material fact remain concerning whether Blue Bird owed a duty to the plaintiff.

When deciding what duties, if any, Blue Bird owed to plaintiff, it is first necessary to examine the relationship between Blue Bird and plaintiff. That relationship hinges in part on the relationship between Blue Bird and ACT and its president, Jenkins. Although plaintiff does not argue Jenkins was an employee of Blue Bird, plaintiff insists that Jenkins was controlled by Blue Bird. In Moss v. Central of Ga. R. Co., 135 Ga.App. 904, 219 S.E.2d 593 (1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1501, 47 L.Ed.2d 758 (1976), this court, citing with approval the Restatement of Agency 2d § 220(2), set forth ten factors that should be considered when deciding whether one acting for another is an independent contractor or an employee. Those factors include: "(1) the extent of control which, by agreement, the employer may exercise over the details of the work; (2) whether or not the one employed is engaged in a distinct occupation or business; (3) whether or not the work to be performed is usually done under the direction of the employer or by a specialist who needs no supervision; (4) the skill required in the particular occupation; (5) whether the employer supplies the tools and the place of work for the one employed; (6) the length of time for which the person is employed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work to be performed is a part of the regular business of the employer; (9) whether or not the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business." Id. 135 Ga.App. at 906, 219 S.E.2d 593.

Applying these factors to the undisputed facts of this case, we hold ACT was an independent contractor employed by Blue Bird and ACT's president, Jenkins, acted as an independent contractor in employing plaintiff to repair the fan. Blue Bird hired ACT and Jenkins for the limited purpose of installing a paint finishing system. The only evidence of any control exercised by Blue Bird is Jenkins' testimony that Blue Bird insisted ACT's installation of the system not interrupt production. For that reason, Jenkins and the crew he employed to install the system usually began work after Blue Bird stopped its operations at the plant and stopped working when the production shift began. Blue Bird employees were generally not present during the installation and did not exercise control over the details of installing the system. The contract between the parties did not give Blue Bird the right to control the manner of installation. The installation of a paint finishing system is not the regular business of Blue Bird. ACT's principal, Jenkins, had experience installing such systems and all evidence indicates Blue Bird properly relied upon his expertise in installing the system. Neither Jenkins nor any member of the installation crew was ever on Blue Bird's payroll, and ACT was paid a lump sum for the system and its installation. Although there is evidence that Blue Bird lent certain tools and equipment to Jenkins to use for the installation, Jenkins and his crew provided most of the tools needed for the installation. The parties did not contract for Blue Bird to supply tools to Jenkins and tools were lent to Jenkins by Blue Bird only after Jenkins was unable to procure them elsewhere in a reasonable time. Thus, all evidence shows Blue Bird allowed Jenkins to use certain equipment as an accommodation rather than as a contractual right.

2. Plaintiff argues that even if ACT and Jenkins were independent contractors of Blue Bird, this case falls outside the general rule that landowners are not responsible for the negligence of their independent contractors. "It is, of course, the rule that the employer of an independent contractor owes the contractor's employees [or one hired by an independent contractor] the ubiquitous duty of not imperiling their lives by [its] own affirmative acts of negligence. [Cits.] It is also the general rule that the independent contractor's employer is under no duty to take affirmative steps to guard or protect the contractor's employees against the consequences of the contractor's negligence or to provide for their safety. [Cits.] As stated in [OCGA § 51-2-4]: 'The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer.' It should be noted, however, that under the statutory law of Georgia, ... there are recognized exceptions to this general rule. [Cits.]" (Indentions omitted.) United States v. Aretz, 248 Ga. 19, 24-25, 280 S.E.2d 345 (1981).

The exceptions to that general rule of no liability are codified at OCGA § 51-2-5. Plaintiff relies upon the exception established by subsection (5) of that Code section which provides: "An employer is liable for the negligence of a contractor: ... (5) If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference...." Particularly, plaintiff argues his injury is traceable to Blue Bird's interference which occurred when Blue Bird agreed to supply Jenkins with the use of a forklift and the forklift supplied to Jenkins was defective in that adequate warnings were not maintained on the forklift. ¹

The evidence shows Blue Bird allowed Jenkins to use forklifts during the installation process. Jenkins originally asked to borrow a forklift for the limited purpose of unloading materials. Although there is evidence that Blue Bird knew Jenkins continued to use forklifts during the installation process, there is no evidence any Blue Bird employee ever witnessed Jenkins or other members of the installation crew lifting anyone using a forklift or that Blue Bird ever authorized use of their forklifts for that purpose. No one employed by Blue Bird knew or had reason to know that Jenkins would use a forklift owned by Blue Bird to lift plaintiff for repair work. No Blue Bird personnel was present at the time of the accident. Jenkins testified during his deposition, "I never told Blue Bird that I would need their assistance or make them aware that they would need anything to elevate anybody to fix the fan." Although Jenkins testified that Blue Bird personnel had general knowledge that someone would be coming on the date of plaintiff's accident to repair the fan, Jenkins testified he assumed the fan could be repaired by accessing the inside portion that could be reached by stairs; therefore, there is no reason to believe Blue Bird would anticipate Jenkins would need to lift plaintiff.

Furthermore, there is no evidence that Blue Bird designated which forklift Jenkins should use to lift plaintiff. Jenkins testified that initially Blue Bird designated one forklift for his use during the installation process, but that Blue Bird's...