Three Notch Elec. Membership Corp. v. Bush

Decision Date09 March 1989
Docket Number77193,Nos. 77192,s. 77192
Citation380 S.E.2d 720,190 Ga.App. 858
PartiesTHREE NOTCH ELECTRIC MEMBERSHIP CORPORATION v. BUSH et al. BABCOCK ENTERPRISES, INC. v. BUSH et al.
CourtGeorgia Court of Appeals

Divine, Wilkin, Deriso, Raulerson & Fields, R. Kelly Raulerson, Albany, for appellant in case no. 77192.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, Albany, Kirbo & Bridges, Bruce W. Kirbo, Bainbridge, for appellant in case no. 77193.

Rentz & Shepard, Danny S. Shepard, Ronald H. Rentz, Colquitt, for appellees.

BENHAM, Judge.

These two interlocutory appeals are from the denials of summary judgment to Three Notch Electric Membership Corporation (Three Notch) and Babcock Enterprises, Inc. (Babcock) on the issue of their alleged negligence with regard to Three Notch's installation and maintenance of a power line on property that Babcock owned. Since some of the same issues are raised in both appeals, we have consolidated the cases.

In 1975, Three Notch installed a 7,200-volt power line to provide electricity for a peanut-drying shed and grain operation being run by Charley Fleet of Fleet Operations, Inc. (Fleet), the lessee of Babcock's property. At the time the power line was installed, it met the requirements of the National Electric Safety Code, and was 78 feet, 4 inches from the last of the seven grain bins located on the property. A year or two later, Fleet installed an eighth grain bin, and early in 1985, he installed the last bin, which was 50 feet, 4 inches from the power line. On October 14, 1985, Mr. Fleet told Charlie Morgan and four other Fleet employees to move a grain auger, a long metal object on wheels used to load and unload grain, from the last bin to a temporary pit. As the workers were pushing the auger, which had not been lowered, to the pit, it struck the power line and electrocuted two of the five men. Morgan's surviving spouse and children sued Three Notch, Babcock, and others for negligence. Three Notch and Babcock moved for summary judgment, which was denied.

1. Appellant Three Notch contends that the trial court erred in denying its motion for summary judgment because it was undisputed that when the power line in question was originally installed, it was 26 feet above the ground and 78 feet away from the nearest grain bin on Babcock's land, and it met all of the applicable safety codes and standards. Therefore, it argues, the trial court should have concluded as a matter of law that Three Notch did not negligently install or maintain the power line. "It is elementary that one maintaining high tension lines must do so in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines. That was the duty owed by the power company to the plaintiff in this case." Carden v. Ga. Power Co., 231 Ga. 456, 202 S.E.2d 55 (1973). Assuming arguendo that the original placement and installation of the power line was not negligently performed, there was evidence that from September 1984 until October 1985, Three Notch had notice that more bins had been added, the last one being only 50 feet away from the power line. This notice derived from the fact that due to a change in the meter billing system in September 1984, a Three Notch employee had to visit the work site monthly to read the meter. Three Notch's knowledge of the changed conditions at the site and the nature of the work that was routinely done in the vicinity of the power line (including the use of portable metal augers extending to a height of 61 feet) created a question of fact whether its maintenance of the power line without some modification or warning constituted negligence. Compare Carden, supra, in which the power lines in question were 24 feet over a traveled roadway, not a permanent work site, and the power company had no knowledge that other parties were conducting electrical construction work in the immediate vicinity of the wires at that height.

The question of fact that was created also precluded summary judgment on the other ground asserted by Three Notch, failure to comply with OCGA § 46-3-33. The statute requires that persons responsible for work to be done within eight feet of any high-voltage line must notify the owner or operator of those lines of the work to be done so that the owner can take the necessary safety measures required by OCGA § 46-3-32 before proceeding with the work in question. Three Notch argues that since it was not notified that the auger would be moved in an upright position within eight feet of the power line, it is not liable for the injuries the workers suffered. However, "lack of such notification is a bar to recovery only where the lines are 'otherwise properly located and maintained.' [Cit.]" Malvarez v. Ga. Power Co., 250 Ga. 568, 569, 300 S.E.2d 145 (1983). Since it has not been shown as a matter of...

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8 cases
  • Williams v. Mitchell County Elec. Corp.
    • United States
    • Georgia Court of Appeals
    • May 24, 2002
    ...acts of work leading to injury from contact with high-voltage lines was uniquely a jury question. Three Notch Elec. Membership Corp. v. Bush, 190 Ga.App. 858, 859(1), 380 S.E.2d 720 (1989) (two employees of commercial grain operation augering grain struck power pole); Habersham Elec. Member......
  • Mcgarity v. Hart Electric Membership Corp...
    • United States
    • Georgia Court of Appeals
    • July 11, 2011
    ...Harvey Co. v. Reddick, 240 Ga.App. 466, 471(1)(b), 522 S.E.2d 749 (1999). 31. See generally id.; Three Notch Elec. Membership Corp. v. Bush, 190 Ga.App. 858–859(1), 380 S.E.2d 720 (1989). 32. See generally Ga. Real Estate, etc., supra; J.H. Harvey Co., supra; Three Notch Elec. Membership Co......
  • Callaway v. Crown Crafts, Inc.
    • United States
    • Georgia Court of Appeals
    • October 23, 1996
    ...so the lack of notice absolved the line's owner, in that case, Georgia Power Company. In our subsequent case of Three Notch EMC v. Bush, 190 Ga.App. 858(1), 380 S.E.2d 720 (1989), the burden was placed on the defendant who claimed the defense of no notification. The court ruled, "Since it h......
  • Ford v. Olympia Skate Center, Inc., A94A0324
    • United States
    • Georgia Court of Appeals
    • June 22, 1994
    ...to and operated by an apparently separate entity, is liable for injuries occurring on those premises. See Three Notch E.M.C. v. Bush, 190 Ga.App. 858, 860-861(3), 380 S.E.2d 720 (1989); Godwin v. Olshan, 161 Ga.App. 35, 36(2), 288 S.E.2d 850 (1982). Assuming without deciding that Davis is l......
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12 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part IV - Demonstrative Evidence
    • July 31, 2015
    ...Thornton v. U.S. Department of Agriculture, 715 F.2d 1508 (11th Cir. 1983), §§22.430, 49.200 Three Notch Elec. Membership Corp. v. Bush, 380 S.E.2d 720 (Ga. 1989), §25.201 Tice v. American Airlines, Inc., 192 F.R.D. 270 (N.D.Ill. 2000), §9.513 Tillis Trucking Co., Inc. v. Moses, 748 So.2d 8......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part IV - Demonstrative Evidence
    • July 31, 2014
    ...Thornton v. U.S. Department of Agriculture, 715 F.2d 1508 (11th Cir. 1983), §§22.430, 49.200 Three Notch Elec. Membership Corp. v. Bush, 380 S.E.2d 720 (Ga. 1989), §25.201 Tice v. American Airlines, Inc., 192 F.R.D. 270 (N.D.Ill. 2000), §9.513 Tillis Trucking Co., Inc. v. Moses, 748 So.2d 8......
  • Table of Cases
    • United States
    • August 2, 2016
    ...Thornton v. U.S. Department of Agriculture, 715 F.2d 1508 (11th Cir. 1983), §§22.430, 49.200 Three Notch Elec. Membership Corp. v. Bush, 380 S.E.2d 720 (Ga. 1989), §25.201 Tice v. American Airlines, Inc., 192 F.R.D. 270 (N.D.Ill. 2000), §9.513 Tillis Trucking Co., Inc. v. Moses, 748 So.2d 8......
  • Legal documents
    • United States
    • James Publishing Practical Law Books Is It Admissible? Part II. Documentary evidence
    • May 1, 2022
    ...hearsay. But if hearsay is not objected to, it constitutes substantive evidence. Three Notch Elec. Membership Corp. v. Bush , 380 S.E.2d 720 (Ga. 1989). An affidavit submitted by an expert was accepted by the court during a motion for summary judgment by the defendant. The expert’s analysis......
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