Widner v. Brookins, Inc.

Decision Date19 February 1999
Docket NumberNo. A98A2051.,A98A2051.
PartiesWIDNER et al. v. BROOKINS, INC. et al.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Ronnie J. Lane, William M. Shingler, Donalsonville, for appellants.

Langley & Lee, Donald W. Lee, Albany, for appellees. POPE, Presiding Judge.

Betrice Widner suffered injuries when her car fell into a trench that had been dug across a public road to lay a telephone cable. Bell South Telecommunications, Inc. had contracted with appellee Brookins, Inc. to lay the cable, and Brookins, in turn, had subcontracted with Pro Grassing & Grading, Inc. to perform the actual work. Betrice Widner and her husband, William O. Widner, sued Bell South and Brookins, and Brookins filed a third-party complaint against Pro Grassing.

This is the second appearance of this matter before this Court. In Bell South Telecommunications v. Widner, 229 Ga.App. 634, 637, 495 S.E.2d 52 (1997), we reversed the trial court's denial of Bell South's motion for summary judgment and remanded the case with the direction that summary judgment be entered in Bell South's favor.1 After remand, Brookins moved for summary judgment, and the trial court granted the motion. The Widners appeal, and we affirm.

1. The Widners contend that Pro Grassing was acting as an employee and agent of Brookins, not as an independent contractor, in laying the telephone cable, and thus contend that Brookins is liable under respondeat superior for any negligence of Pro Grassing. However, we found in the earlier appeal that Pro Grassing was performing the work on the telephone cable as an independent contractor of Brookins. Bell South Telecommunications v. Widner, 229 Ga.App. at 636(1), 495 S.E.2d 52. Because the Widners introduced no additional evidence on this issue in response to Brookins' motion for summary judgment, that finding remains the law of the case. See Lowman v. Advanced Drainage Systems, 228 Ga.App. 182, 184-185, 491 S.E.2d 427 (1997); McLean v. Continental Wingate Co., 222 Ga.App. 805, 807(1), 476 S.E.2d 83 (1996). Thus, the Widners' argument that Brookins could be liable under respondeat superior is without merit.

2. As a general rule, an employer is not liable for the torts of an independent contractor. OCGA § 51-2-4. Nevertheless, the Widners contend that Brookins is vicariously liable for any negligence on the part of Pro Grassing. They raise a number of different arguments to support this contention, relying upon OCGA § 51-2-5, which sets out various exceptions to the general rule. However, they raised only two of these arguments before the trial court. Because this Court cannot consider arguments that were neither raised nor ruled upon in the trial court, we will consider only those arguments addressed below. See Chrison v. H & H Interiors, 232 Ga.App. 45, 50(2), 500 S.E.2d 41 (1998); Siegrist v. Iwuagwa, 229 Ga.App. 508, 511(1), 494 S.E.2d 180 (1997).

(a) The Widners first argue that Brookins is liable for Pro Grassing's negligence because it violated a duty imposed upon Brookins by an express contract. Although the Widners do not cite to the statute, their argument tracks the language of OCGA § 51-2-5(3), which provides that an employer is liable for the negligence of a contractor "[i]f the wrongful act is a violation of a duty imposed by express contract upon the employer".

The Widners have failed on appeal to point to any express contractual obligation imposed upon Brookins. Instead, they rely upon case law to argue that Brookins had an implied duty to restore the road to its original condition after the utility work was completed. Such an implied obligation does not impose liability upon Brookins under the statute. We have interpreted the exception outlined in OCGA § 51-2-5(3) "as requiring an express obligation by the employer to be responsible for the independent contractor's conduct. [Cits.]" Toys `R' Us v. Atlanta Economic Dev. Corp., 195 Ga.App. 195, 196(1)(A), 393 S.E.2d 44 (1990).

Because nothing in the record indicates that Brookins contracted to be responsible for Pro Grassing's conduct, this exception to the general rule does not apply. Toys `R' Us, 195 Ga.App. 195, 393 S.E.2d 44 See also Stanley v. Fiber Transp., 221 Ga.App. 171, 174(5), 470 S.E.2d 767 (1996). Cf. Southern Mills v. Newton, 91 Ga.App. 738, 742(2)(a), 87 S.E.2d 109 (1955). (b) The Widners also cite OCGA § 51-2-5(6), which provides that an employer may be liable for the negligence of an independent contractor "[i]f the employer ratifies the unauthorized wrong" of the contractor. The Widners contend that Brookins ratified Pro Grassing's actions because it accepted Pro Grassing's work on the project. See, e.g., Wilmock, Inc. v. French, 185 Ga.App. 259, 363 S.E.2d 789 (1987). They base this argument on Betrice Widner's testimony that T.L. Edmonds, a "go-between" hired by Bell South, told her that the trench had been re-opened and some of the cable re-laid. She stated that Edmonds told her that when the trench was re-filled, the dirt had not been compacted properly because it had begun to rain before the work was finished.

However, this testimony does not raise a factual issue regarding ratification on the part of Brookins. Edmonds was not an employee of Brookins; he was an independent contractor hired by Bell South to secure right-of-way for the company to lay telephone cable. Therefore, Edmonds was not speaking for Brookins in describing these events. Betrice Widner also testified that the actions Edmonds was describing were undertaken by the company that originally laid the cable, which was Pro Grassing. Nothing in this recounting of events reflects any acts of acceptance or ratification or otherwise on the part of Brookins. To ratify an act of an independent contractor, one must have knowledge of the act. Clayton v. Edwards, 225 Ga.App. 141, 143(2), 483 S.E.2d 111 (1997); Southern Mills v. Newton, 91 Ga.App. at 743(2)(...

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7 cases
  • Harper v. Robinson, A03A1506.
    • United States
    • Georgia Court of Appeals
    • 22 octobre 2003
    ...or an acceptance of moral responsibility." (Citation and punctuation omitted; emphasis in original.) Widner v. Brookins, Inc., 236 Ga.App. 563, 565(3), 512 S.E.2d 405 (1999). Judgment ANDREWS, P.J., concurs. BARNES, J., concurs in judgment only. 1. An animal that is ferae naturae is "of a w......
  • Trulove v. Jones
    • United States
    • Georgia Court of Appeals
    • 17 février 2005
    ...or an acceptance of moral responsibility. (Citation and punctuation omitted; emphasis in original.) Widner v. Brookins, Inc., 236 Ga.App. 563, 565(3), 512 S.E.2d 405 (1999). See, e.g., Steverson v. Eason, 194 Ga.App. 273, 273-274(3), 390 S.E.2d 424 (1990) (statement by defendant that he fel......
  • Perdue v. Atlanta Bldg. Maint. Co. Inc., A11A0305.
    • United States
    • Georgia Court of Appeals
    • 9 janvier 2012
    ...and punctuation omitted.) Kidd v. Dentsply Intl., 278 Ga.App. 346, 350(2), 629 S.E.2d 58 (2006). Accord Widner v. Brookins, Inc., 236 Ga.App. 563, 564(2)(a), 512 S.E.2d 405 (1999). Cf. Taylor v. AmericasMart Real Estate, 287 Ga.App. 555, 557–558(1)(a), 651 S.E.2d 754 (2007) (For a nonparty ......
  • Petrosky v. Embry Crossing Condominium
    • United States
    • Georgia Court of Appeals
    • 20 mars 2007
    ...17. (Citation omitted.) Id. at 694, 462 S.E.2d 808. 18. Id. at 695, 462 S.E.2d 808 (Beasley, C.J., concurring specially). 19. 236 Ga.App. 563, 512 S.E.2d 405 (1999). 20. (Citation and punctuation omitted; emphasis in original.) Id. at 565-566(3), 512 S.E.2d attorney in fact, during the exis......
  • Request a trial to view additional results
1 books & journal articles
  • Evidence - Mark T. Treadwell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 51-1, September 1999
    • Invalid date
    ...T. Treadwell, Evidence, 44 Mercer L. Rev. 213, 222-23 (1992); Marc T. Treadwell, Evidence, 48 mercer L. rev. 323, 337-39 (1996). 74. 236 Ga. App. 563, 512 S.E.2d 405 (1999). 75. Id. at 565, 512 S.E.2d at 407. 76. Id. 77. 218 Ga. App. 693, 462 S.E.2d 808 (1995). 78. 236 Ga. App. at 565, 512 ......

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