Tect Const. Co., Inc. v. Frymyer

• Decision Date: 20 June 1978
• Docket Number: Nos. 55352-55355,s. 55352-55355
• Citation: 246 S.E.2d 334,146 Ga.App. 300
• Parties: TECT CONSTRUCTION COMPANY, INC. v. FRYMYER, et al. FRYMYER v. TECT CONSTRUCTION COMPANY, INC. et al. McGEE v. FRYMYER et al. FRYMYER v. McGEE et al.
• Court: Georgia Court of Appeals

Page 334

246 S.E.2d 334

146 Ga.App. 300

TECT CONSTRUCTION COMPANY, INC. v. FRYMYER, et al.

FRYMYER v. TECT CONSTRUCTION COMPANY, INC. et al.

McGEE v. FRYMYER et al.

FRYMYER v. McGEE et al.

Nos. 55352-55355.

Court of Appeals of Georgia.

Argued Jan. 31, 1978.

Decided April 28, 1978.

Rehearing Denied June 20, 1978.

Kaler, Lefkoff, Pike & Fox, George M. Fox, David I. Funk, Atlanta, for appellant Case No. 55352.

Jack Dorsey, Hurt, Richardson, Garner, Todd & Cadenhead, J. Robert Persons, Frederick N. Gleaton, David M. Fox, David I. Funk, Atlanta, for appellees Case Nos. 55352 and 55354.

Jack Dorsey, Atlanta, for appellant Case Nos. 55353 and 55355.

George M. Fox, J. Robert Persons, Frederick N. Gleaton, Atlanta, for appellees Case Nos. 55353 and 55355.

J. Robert Persons, Frederick N. Gleaton, Atlanta, for appellant Case No. 55354.

George M. Fox, J. Robert Persons, Frederick N. Gleaton, Atlanta, for appellees Case No. 55355.

BIRDSONG, Judge.

The interlocutory appeals in this case arise out of the denial of summary judgments. The facts show that the Atlanta Housing Authority contracted with Monroe Nurseries for some site grading. Monroe subcontracted with T. E. Driskell Grading Co. to perform grading, grubbing and dirt removal. Driskell in turn subcontracted with Tect Construction Co., Inc. to perform the grading.

Tect Construction was owned individually by Driskell and another. Driskell as T. E. Driskell Grading Co. subcontracted with his son-in-law, Johnson, to supervise the grading work. Johnson then subcontracted with W. F. Black Grading Co. for the specific use of Black's employee Frymyer, whom Johnson knew to be an exceptionally well qualified bulldozer operator. Driskell, on behalf of Tect Construction, subcontracted with McGee as a sole owner and operator of a dump truck to haul and compact dirt on the site. While compacting fill with his dump truck, McGee backed the truck into a telephone pole on the site pinning Frymyer's arm and causing serious injury. Frymyer received workmen's compensation from his employer, Black, and sued McGee as a third-party tortfeasor. McGee, with permission of the trial court, interpleaded Tect Construction Co. as a third-party defendant, contending that Tect Construction did not exercise reasonable care to protect its invitees (the independent contractors or employees) from dangers on the work site. McGee sought summary judgment on the ground that he and Frymyer were engaged in the same endeavor, i. e., the grading and filling of a site for the Atlanta Housing Authority and were both ultimately employed by the same employer, Tect Construction. It is McGee's contention that Ga.L.1920, p. 176; 1972, pp. 929, 930; 1974, pp. 1143, 1144 (Code Ann. § 114-103) bars an employee from bringing an action against a third-party tortfeasor where the tortfeasor is an employee of the same employer as the injured employee. Frymyer sought summary judgment under the provisions of the same Code section, contending that McGee, as an independent contractor was a third-party tortfeasor and not a co-employee. Tect Construction urges that it is not liable as a third-party defendant because it owed no duty to McGee or Frymyer which had been violated negligently so as to render Tect Construction liable as a joint tortfeasor. The trial court denied all motions for summary judgment concluding there were issues of material fact as to whether McGee and Frymyer were fellow employees of Tect Construction engaged in common employment within the contemplation of Code Ann. § 114-103. Held:

1. Inasmuch as the same facts control the issues in all four interlocutory appeals, we will consider these appeals as one case. In case no. 55352, Tect Construction urges error in the denial of its summary judgment. In respect to the duty owed by a general contractor to maintain safety regulations or conduct its business so as to protect employee-invitees on the construction site, we accept as controlling the rule announced by this court in Batson-Cook Co. v. Shipley, 134 Ga.App. 210, 212, 214 S.E.2d 176, 178: "The duty of ordinary care that a patron owes to his invitees is the same duty of ordinary care in keeping the premises safe which a master owes to his servant. Elrod v. Ogles, 78 Ga.App. 376, 50 S.E.2d 791. In either case, two elements must exist in order to merit recovery: fault on the part of the owner, and ignorance of the danger on the part of the invitee. Accordingly, the duty which a general contractor . . . owes the subcontractor is to exercise the care of an ordinarily prudent person to prevent him from being exposed to a hazard or hazards other than those that ordinarily attend a person's presence on premises where a building is under construction. Braun v. Wright, 100 Ga.App. 295, 111 S.E.2d 100 . . . 'The basis of the proprietor's liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known conditions.' Rogers v. Atlanta Enterprises, 89 Ga.App. 903, 906, 81 S.E.2d 721, 723."

In this case, grading was being conducted in an open field. There were three clearly visible poles carrying a power line through the area. There were many construction vehicles operating in the area, including bulldozers, dump trucks and compactors. These vehicles were constantly being operated in all directions as a part of the grading operation. Frymyer, while taking a break, leaned against one of the poles while watching the operation of a piece of equipment across the road. Although he was aware of the compacting activities of McGee in the immediate vicinity, Frymyer's back was to McGee's truck.

We are not here confronted with a hidden danger known to the proprietor but unknown to the invitee. See Chambers v. Peacock Const. Co., 115 Ga.App. 670, 155 S.E.2d 704. Similarly, the operation of the dump truck in the grading area was a routine activity, and the power pole, standing alone, presented no hazard. There being no duty to exercise extraordinary care, there is no liability for an injury resulting to an invitee from a danger best known to the invitee who assumes the obvious risks and dangers inherent in the known circumstances (Rogers v. Atlanta Enterprises, supra). It follows that the trial court erred in denying summary judgment to the third-party defendant Tect...