Perdue v. Atlanta Bldg. Maint. Co. Inc., A11A0305.

• Decision Date: 09 January 2012
• Docket Number: No. A11A0305.,A11A0305.
• Parties: PERDUEv.ATLANTA BUILDING MAINTENANCE COMPANY, INC. et al.
• Court: Georgia Court of Appeals

311 Ga.App. 81

714 S.E.2d 611

11 FCDR 1868

PERDUE

v.ATLANTA BUILDING MAINTENANCE COMPANY, INC. et al.

No. A11A0305.

Court of Appeals of Georgia.

June 15, 2011.Reconsideration Denied July 18, 2011.Certiorari Denied Nov. 30, 2011.Reconsideration Denied Jan. 9, 2012.

Divine, Finney & Dorough, Kermit S. Dorough, Jr., Albany, for appellant.Talley, French & Kendall, Michael Charles Kendall, Conyers, Kimberly DeWitt Mowbray, Douglasville, D. Todd Markle, Atlanta, for appellees.MIKELL, Judge.

Mallory Perdue, a teacher who was injured when she slipped and fell on a recently stripped and waxed school hallway, appeals from the trial court's grant of summary judgment to the Atlanta Building Maintenance Company, Inc. (ABM) and Preferred Facilities Maintenance, Inc., the contractor and subcontractor responsible for the work.

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 light most favorable to the nonmoving party, warrant judgment as a matter of law.¹ Our review is de novo.²

It is not disputed that ABM had a contract with the Atlanta Public School System (APS), owner and occupier, to provide custodial services for W.T. Jackson Elementary School and other schools. On July 1, 2005, ABM subcontracted the custodial work at W.T. Jackson to Preferred Facility Maintenance, operated by Keith Barber. On August 1, 2007, Arthur Bridges of Preferred was at the school completing several days of stripping and re-waxing of the floors. During the morning, Bridges and other Preferred personnel had been moving furniture from the back upstairs hallway back into the classrooms, preparing to do the stripping and waxing of the hallway.

Perdue had gone to her physician for her annual physical, which lasted an hour or an hour and a half. Following this appointment, Perdue went by the school to pick up the $100 teacher gift card, provided by the governor, to buy supplies although the first day she was to report for work was the following week. She went in the front door of the school to the office and picked up her gift card. The prior spring, Perdue had been assigned to a new classroom on the lower level of the school. Before leaving for the summer, Perdue had packed up all her teaching aids in boxes. Upon arriving at the school on August 1, she found these boxes had been moved to her new classroom from her prior classroom on the upper floor of the annex. Perdue worked in her new classroom for an unknown period of time, unpacking the boxes. She then left the school for an unknown period of time, going to a friend's house and borrowing two books.

Upon returning to the school, Perdue encountered a fellow French teacher, Marian Justice; they visited for a while; Perdue returned to her room and continued working. Justice later came to Perdue's room and told her she was going back upstairs to their former classroom on the upper floor of the annex to look for some missing items. Perdue and Justice went upstairs and observed workers in the hallway who were moving furniture. According to Perdue, the workers said they had to move all of the furniture out of the hall. The workers helped Justice move a desk to the lower floor and Perdue and Justice took a rolling cart downstairs by elevator.

Approximately an hour before Perdue's fall, Bridges encountered Perdue and another woman teacher in the hallway he was preparing to strip and wax. He instructed two other employees to help Perdue and the other woman “with whatever they got to take out of there, because they can't come back on this floor. And I actually walked them right here to this elevator and told them that.”

Sylivia Graves of Preferred was supervising Bridges and the other workers that day. Because she understood there were to be no teachers in the building that day and she saw teachers in the back of the building, Graves went to the office and spoke to assistant principal Patrice Austin and school secretary Gayle Huber around 11:00 a.m. Graves asked Huber to make an announcement over the intercom to let the teachers know “that all teachers, all staff, must leave the building.” Graves was in Huber's presence as Huber made the announcement twice.

After having worked a while longer, Perdue collected her things and went up the stairs to leave. She opened the door at the top of the stairs, “walked out into this hall and immediately slipped on the floor.” Perdue saw no sign on the door or in the stairwell. After falling, Perdue saw Bridges coming toward her, slipping on the floor. Perdue told Bridges not to touch her, crawled back onto the landing from which she had come, took off her shoes, and walked back to the office where she obtained assistance for her broken arm.

Perdue said that she “[did not] recall hearing any announcements at all.” She also said that it was possible announcements were made regarding custodial staff or calling someone to the office and that she would tune those out. According to her, “there were no announcements made while I was there to teachers.”

1. Perdue contends that summary judgment to ABM was improper because the exception found in OCGA § 51–2–5(3) to the statutory rule of no liability for the actions of independent contractors applies.³

OCGA § 51–2–5(3) provides that “[a]n employer [ABM] is liable for the negligence of a contractor [Preferred]: ... [i]f the wrongful act is the violation of a duty imposed by express contract upon the employer [ABM].”

The APS/ABM contract provides that “[w]henever and wherever the vendor's [ABM] work creates a potential hazard to the public (e.g. slipping or tripping), the vendor shall place appropriate barriers and warning signs to provide and ensure adequate protection.”

Perdue's negligence claim against ABM fails under OCGA § 51–2–5(3) because

the contractual duties under which the employer [ABM] would be liable for the acts of the independent contractor [Preferred] cannot be enforced by one not a party to the contract. Even if privity of contract existed, however, [Perdue's] claims fail because she has neglected to point out an express contractual provision that would cast liability on either [ABM] or [Preferred]. OCGA § 51–2–5(3) has been interpreted as requiring an express obligation by the employer [ABM] to be responsible for the independent contractor's [Preferred's] conduct.⁴

Because there is no such express obligation in the APS/ABM contract, the trial court correctly granted summary judgment to ABM on Perdue's negligence claim.

2. Perdue also contends that the trial court erred in granting summary judgment to Preferred on the ground that the intercom announcement satisfied its duty of ordinary care.

Because Preferred was an independent contractor, except for the language in ABM's contract with APS discussed in Division 1, Perdue has directed this Court to no basis for imposing on Preferred a duty to post signs or otherwise warn the owner/occupier's invitees.⁵ Perdue acknowledges that OCGA § 51–3–1 imposes no independent duty on a janitorial service to inspect the premises for the safety...