Preston v. Georgia Power Co.

• Decision Date: 16 July 1997
• Docket Number: A97A0777,Nos. A97A0776,s. A97A0776
• Citation: 227 Ga.App. 449,489 S.E.2d 573
• Parties: , 97 FCDR 2891 PRESTON v. GEORGIA POWER COMPANY et al. INSURANCE COMPANY OF NORTH AMERICA v. GEORGIA POWER COMPANY et al.
• Court: Georgia Court of Appeals

Page 573

489 S.E.2d 573

227 Ga.App. 449, 97 FCDR 2891

PRESTON v. GEORGIA POWER COMPANY et al.

INSURANCE COMPANY OF NORTH AMERICA v. GEORGIA POWER COMPANY et al.

Nos. A97A0776, A97A0777.

Court of Appeals of Georgia.

July 16, 1997.

Certiorari Denied Feb. 20, 1998.

Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, David A. Forehand, Jr., Preyesh K. Maniklal, Cordele, Hyatt & Hyatt, John M. Hyatt, Decatur, for appellant (case no. A97A0776).

Drew, Eckl & Farnham, James M. Poe, Suzanne V. Sanders, James K. Creasy III, Atlanta, for appellant (case no. A97A0777).

Troutman Sanders, Robert L. Pennington, Scott A. Farrow, Atlanta, for appellees.

SMITH, Judge.

While cleaning a railroad freight car, Roy Preston was grievously injured by contact with a high-voltage power line. He sought damages from Georgia Power Company, the owner of the power line, and Ashland Chemical Company, for which he was working at the time of the incident. Insurance Company of North America ("INA") intervened seeking to enforce its subrogation rights under OCGA § 34-9-11.1(b) for its payment of workers' compensation benefits to Preston. ¹

The trial court granted summary judgment to Ashland and Georgia Power. Preston originally appealed to the Supreme Court because he contended the constitutionality of the High-voltage Safety Act, OCGA §§ 46-3-30 through 46-3-40, was called into question. Ashland moved to transfer the appeals to this Court, and Preston opposed the transfer on the ground that a constitutional issue had been raised and ruled upon by the trial court in an earlier order, as to which the Supreme Court had refused interlocutory review. The Supreme Court granted Ashland's motion to transfer the appeals to this Court on the ground that the trial court decided no constitutional issue in the order appealed from. See Raskin v. Wallace, 215 Ga.App. 603, 604(1), 451 S.E.2d 485 (1994).

The trial court granted summary judgment to Ashland on the ground of the workers' compensation tort bar and to Georgia Power on the ground of lack of proximate cause. Because Preston was a "borrowed servant" of Ashland at the time of his injury, and because Georgia Power was protected by Ashland's lack of notice of a hazardous activity under the High-voltage Safety Act, we affirm.

The evidence, construed in Preston's favor, shows the following: Ashland received bulk chemicals via railcar on a siding between its plant and a power line running parallel to the plant wall and the siding. Occasionally, chemicals became clogged in the hoppers of the railcar, and Ashland employees would be instructed to clean out the railcar from the top. It is undisputed that for many years Ashland's accepted method of cleaning railcars was to lower an employee into the car in a safety harness with a broom or shovel. In May 1992, Ashland's environmental health and safety department recommended a change in this method because of the potential danger of lowering an employee into a confined space with chemical dust. Some time after this recommendation, Ashland began to use a shovel or spader on a 20- to 22-foot metal pole so that employees could stand on top of the railcars to remove the residue. Ashland employees used this spader "long-ways," with the pole parallel to the length of the railcar, because they were aware they could be hurt by the power lines.

On June 22, 1993, Preston was working for Ashland as a temporary employee assigned by ProTemps, a temporary labor agency. Preston was given the spader and instructed to clean out a railcar. This violated Ashland's policy that no temporary employees were to be allowed on top of railcars. Preston was not given any instructions in the use of the spader. Although he testified he did not see the power lines, he agreed there was nothing to prevent his seeing them and he knew it would be dangerous to touch power wires with a pole. While standing on top of the railcar, he swung the pole at right angles to the track and contacted the power lines, suffering severe personal injury. The power lines were between 26 and 28 feet above the ground and approximately 11 feet to one side of the railroad track; the diagonal clearance was measured at approximately 13 feet from the top of the railcar.

Ashland employees testified that they knew of no personal injury from the power lines on Ashland's premises before Preston was hurt. No evidence was presented that Georgia Power knew Ashland had begun using a 20- to 22-foot metal pole in the vicinity of existing power lines. No witness testified that Georgia Power personnel were present at Ashland on previous occasions when railcars were on the track, when unloading operations were taking place, or when the spader was being used. Georgia Power was never notified that the spader would be used or that work was to be performed within ten feet of its lines.

1. With respect to Preston's claims against Ashland Chemical, the only issue is the application of the workers' compensation tort bar, OCGA § 34-9-11(a). At the time of his injury, Preston was a temporary laborer assigned by his employer, ProTemps, to Ashland Chemical. Ashland contends that it is protected by the statutory bar because Preston was its borrowed servant at the time of his injury. Ashland presented testimony that Preston was under its exclusive supervision and control while working at its facility with respect to the work performed by Preston and its power to discharge him.

Preston, however, points to the testimony of an Ashland "compliance specialist" or safety officer agreeing that he "wouldn't have a problem with" ProTemps substituting another ProTemps worker in Preston's place, and the testimony of an Ashland manager that ProTemps would do the actual firing if Ashland became dissatisfied with Preston. This testimony, he contends, forestalls summary judgment on the issue of whether he was a borrowed servant at the time of his injury.

"[I]n order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant." (Citations and punctuation omitted.) Six Flags Over Ga. v. Hill, 247 Ga. 375, 377(1), 276 S.E.2d 572 (1981). "[A]ll three prongs of the test must focus on 'the occasion when the injury occurred' rather than the work relationship in general." Stephens v. Oates, 189 Ga.App. 6, 7(1), 374 S.E.2d 821 (1988). Because a temporary labor service "is in the very business of temporarily 'loaning' its employees to others[,] [cits.]," Sheets v. J. H. Heath Tree Svc., 193 Ga.App. 278, 279, 387 S.E.2d 155 (1989), this Court has repeatedly considered the employment status of such agency employees. See, e.g., Staffing Resources v. Nash, 218 Ga.App. 525, 526, 462 S.E.2d 401 (1995); Sheets, supra; Stephens, supra. The crucial issue here is whether the extent of control retained by ProTemps over Preston is sufficient to void the third part of the "borrowed servant" test: the exclusive right to discharge.

The Ashland manager's testimony that ProTemps would do the actual firing at the request of Ashland does not show a nonexclusive power to discharge; that theory was expressly addressed and rejected in Nash, supra at 526, 462 S.E.2d 401. Here, we must decide whether the Ashland employee's testimony that he would not object to ProTemps's removing Preston and substituting another temporary worker in his place deprives Ashland of its exclusive power to discharge as described in Nash, Sheets, and Stephens. We conclude that it does not.

Even if ProTemps retained some authority to remove Preston from his position at Ashland, the power of the general master to reassign or discharge a borrowed servant is irrelevant to the servant's employment status with the special master. In Six Flags, supra, the Supreme Court defined the special master's "exclusive right to discharge" the borrowed servant as the power to unilaterally discharge from working on the specific task assigned by the special master and from working for the special master. Six Flags, supra at 378(1), 276 S.E.2d 572.

In Stephens, supra, relying on the holding in Six Flags, this Court reiterated that the focus of the borrowed servant test must be the special master's control at the time of the injury, rather than generally, and that this is also true of "the rights of the special master to discharge the servant and to put another in his place." (Citation and punctuation omitted.) Stephens, supra at 7-8, 374 S.E.2d 821. With respect to Preston, ProTemps "obviously retained some control over him, including the right to terminate his employment as its 'lendable servant.' However, once there was an assignment of appellant to a special master, [ProTemps] relinquished that control during the existence of the 'borrowed servant' relationship." Sheets, supra at 279, 387 S.E.2d 155.

This result is consistent with our earlier holding in Jarrard v. Doyle, 164 Ga.App. 339, 340, 297 S.E.2d 301 (1982). In Jarrard, a hotel employee was temporarily assigned to assist a contractor in performing repair work on the hotel and therefore became a borrowed servant of the contractor. Even though the hotel retained some authority over its employee and "could have taken him off the project and assigned him to other work at any time," id. at 340,, 297 S.E.2d 301, the contractor, as the special master, "clearly had the exclusive right to control and direct the plaintiff's work on the particular task in question, as well as to dismiss him from that task for unsatisfactory performance" because "the right to discharge that the special master must have means the right to discharge the servant from that particular work." (Citations and punctuation omitted.) Id. at 340(1).

Undisputed testimony was presented that Ashland had unilateral authority to discharge Preston from the...