Santana v. Georgia Power Co., S97A2055.

• Decision Date: 23 February 1998
• Docket Number: No. S97A2055.,S97A2055.
• Citation: 498 S.E.2d 521,269 Ga. 127
• Parties: SANTANA et al. v. GEORGIA POWER CO. et al.
• Court: Georgia Supreme Court

498 S.E.2d 521

269 Ga. 127

SANTANA et al. v. GEORGIA POWER CO. et al.

No. S97A2055.

Supreme Court of Georgia.

February 23, 1998.

Douglas T. Noonan, William Alford Wall, Wall & Noonan, Robert Eugene Bourne, Law Offices of Robert E. Bourne, Roswell, for Salomen Santana et al.

Robert L. Pennington, Troutman Sanders, Steven Allen Westby, Hamilton, Westby, Marshall & Antonowich, H. Lowell Hopkins, Hopkins & Gresham, Atlanta, for Georgia Power Company et al.

Hardy Gregory, Jr., Davis, Gregory, Christy & Forehand, Cordele, John M. Hyatt, Hyatt & Hyatt, P.C., Decatur, for Amicus Appellant.

BENHAM, Chief Justice.

While painting an apartment building, appellants were injured by contact with a high-voltage power line and sought damages from their employer and from the owner of the power line, Georgia Power Company (Georgia Power). The pertinent evidence of record shows that appellants were injured when a metal ladder they were using made contact with an overhead electric line that was owned and operated by Georgia Power. Neither appellee nor the utilities protection center¹ were given notice that any work would be done in the vicinity, and no safety precautions were in place in anticipation of the work to be done. Based on that record, the trial court granted summary judgment to Georgia Power on the ground that the High-Voltage Safety Act (HVSA), OCGA § 46-3-30 et seq., relieved Georgia Power from liability because of appellants' and their employer's failure to give statutorily-required notice of their potential work near a high-voltage line. In this appeal from that judgment, appellants contend that the HVSA does not demand that result and that the HVSA is unconstitutional. Because we conclude that neither their arguments on the applicability of the statute nor their constitutional attacks are meritorious, we affirm the trial court's judgment.

1. The HVSA requires notice to the utilities protection center before work is commenced near a high-voltage power line. OCGA § 46-3-34(b). In the absence of such notice, the owner or operator of the high-voltage line has no liability for damage resulting from work done within ten feet of the line. OCGA § 46-3-39(a). It is undisputed that neither Georgia Power nor the utilities protection center was notified of the work that appellants were doing near a high-voltage line. Thus, under the plain language of the statute, Georgia Power cannot be held liable for damages incurred as a result of appellants' contact with the line. Preston v. Georgia Power Co., 227 Ga.App. 449(2), 489 S.E.2d 573 (1997) (1997); See also Callaway v. Crown Crafts, Inc., 223 Ga.App. 297(3), 477 S.E.2d 435 (1996). Since the statute makes no distinction in the extent of the liability of the owner or operator of a high-voltage line based on the identity of the person giving notice, appellants' argument that they were not the persons required to give notice is irrelevant.

2. Appellants urge this court to reaffirm Malvarez v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983), where this court held that lack of the statutorily-required notice "is a bar to recovery only where the lines are `otherwise properly located and maintained.' [Cit.]" Id at 569, 300 S.E.2d 145. However, when the General Assembly amended the HVSA in 1992, it significantly altered the statutory language construed in Malvarez. The pre-amendment statute provided that nothing in the HVSA limited the liability of the owner or operator of the high-voltage line, but the amendment added subsection (a) of OCGA § 46-3-39, which specifically provided the owner-operator with immunity from liability if notice was not given as required by OCGA § 46-3-34. The 1992 amendment, therefore, effectively overruled Malvarez. See Preston v. Georgia Power Co., 227 Ga.App. 449(2), 489 S.E.2d 573 (1997).

3. Appellants maintain their due process rights were violated because the HVSA does not require the owner or operator of power lines to advise the public that a particular line is high-voltage, thus making the Act so vague as to be unconstitutional. A statute violates due process if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Fisch v. Randall Mill Corp., 262 Ga. 861(1), 426 S.E.2d 883 (1993); Sliney v. State, 260 Ga. 167, 391 S.E.2d 114 (1990). The language of the HVSA is clear and unambiguous in its requirement that notice be given before work is commenced in proximity to high-voltage lines, and in its provision that lack of such notice insulates the owner of the lines from liability. Although persons of common intelligence may not be sure which power lines qualify as "high-voltage lines,"² and may have to ask to find out, there is no doubt engendered by the statute about the necessity of giving notice prior to working in proximity to such lines or about the effect of failing to give the notice. Thus, persons of common intelligence need not guess at the meaning of the statute and, once in possession of the necessary facts, should not differ as to its application. We conclude, therefore, that appellants' vagueness attack on the statute is without merit.

4. Appellants contend that their right to due process was violated because the HVSA takes from them a common law claim and thus deprives them of their right to access to the courts under Art. I, Sec. I, Par. XII of the Georgia Constitution. However, the enactment of a statute that delineates or even abolishes a cause of action before it has accrued deprives a plaintiff of no vested right and, thus, does not deny due process. Love v. Whirlpool Corp., 264 Ga. 701(2), 449 S.E.2d 602 (1...