Williams v. Nico Industries, Inc.

• Decision Date: 19 February 1981
• Docket Number: 60867,Nos. 60866,s. 60866
• Citation: 278 S.E.2d 677,157 Ga.App. 814
• Parties: WILLIAMS et al. v. NICO INDUSTRIES, INC. et al. ITR PROPERTIES, INC. v. WILLIAMS et al.
• Court: Georgia Court of Appeals

Page 677

278 S.E.2d 677

157 Ga.App. 814

WILLIAMS et al. v. NICO INDUSTRIES, INC. et al.

ITR PROPERTIES, INC. v. WILLIAMS et al.

Nos. 60866, 60867.

Court of Appeals of Georgia.

Decided Feb. 19, 1981.

Rehearings Denied Feb. 27 and March 9, 1981.

Certiorari Denied April 10, 1981.

Irwin W. Stolz, Jr., Barry Mittenthal, Atlanta, for appellants (case no. 60866).

Robert L. Pennington, Tommy T. Holland, John Talmadge, Kevin C. Greene, Malcom P. Smith, James M. Poe, Atlanta, for appellees (case no. 60866).

Tommy T. Holland, Atlanta, for appellant (case no. 60867).

Robert L. Pennington, Kevin C. Greene, Irwin W. Stolz, Jr., John Talmadge, Malcolm P. Smith, James M. Poe, Barry Mittenthal, Atlanta, for appellees (case no. 60867).

SOGNIER, Judge.

Appellant Marvin Williams, an employee of Power Painting Co., was injured while painting the exterior wall of an apartment building owned by ITR Properties, Inc. (ITR). Appellant was standing on a 40 foot aluminum ladder approximately 35 feet above the ground. He was using a paint roller attached to an 8 foot extension handle, which came in contact with, or close enough to, a high voltage electric line to conduct a severe electrical shock to appellant, causing him to fall off the ladder.

Williams sued Georgia Power, ITR, Nico Industries (Nico), the general contractor in charge of renovation of the apartment building, Cushman & Wakefield of Georgia, Inc. (C&W), the project consultant and owner's representative for ITR, and Ken Edwards Enterprises, Inc. (Edwards), the manager of the apartments for ITR. Mrs. Williams sued the same parties for loss of consortium. All five defendants moved for summary judgment, which was granted. The trial court held that as a matter of law, Mr. Williams' own negligence was the proximate cause of his injuries and that with the exception of ITR, none of the defendants had failed to exercise ordinary care for his safety. Both Mr. and Mrs. Williams appeal the grant of summary judgment against them. In a cross appeal, ITR contends the trial court's ruling as to its breach of duty to Williams was erroneous.

1. Appellants contend that the trial court erred in granting summary judgment based on Mr. Williams' contributory negligence. Appellees rely on, and the trial court cites as authority, Ga. Power Co. v. Purser, 152 Ga.App. 181, 262 S.E.2d 473 (1979), for the proposition that as a matter of law, Mr. Williams was fully aware of the danger involved in painting a building near high voltage electrical wires. We think such reliance is misplaced. In Purser, the plaintiff testified that he knew the power lines with which he came in contact were bare and energized; that he knew if he touched the lines with the pole he was using he would be hurt; that he was frightened of this possibility; and that what he was doing "was a good way to commit suicide." This court held that in such a "plain and palpable" case, it was apparent that as a matter of law, plaintiff could have avoided the consequences of defendant's negligence and that he was fully aware of the danger. Ga. Power Co. v. Purser, supra, pp. 182, 183, 262 S.E.2d 473.

The instant case is not so plain and palpable. Appellant's testimony and the testimony of the only eyewitness to the incident discloses that although appellant was aware of the danger of getting too close to power lines, at the time the incident occurred he was unaware of power lines in the vicinity where he was painting. There is also some question as to whether the extension handle appellant was using at the time actually came in contact with the power lines.

Ordinarily, questions of negligence and diligence, cause and proximate cause are questions solely for consideration by the jury, and such questions should not be resolved as a matter of law except in plain and palpable cases. Otto v. Hendry, 132 Ga.App. 598, 600, 208 S.E.2d 611 (1974); Carroll Elec. Membership Corp. v. Simpson, 106 Ga.App. 29, 126 S.E.2d 310 (1962); Ga. Power Co. v. Purser, supra, 152 Ga.App. p. 183, 262 S.E.2d 473. In the instant case, construing all evidence adduced on appellees' motions for summary judgment most strongly against them and giving appellants the benefit of all reasonable doubt and favorable inferences, we must conclude that the trial court erred in granting summary judgment on the issue of contributory negligence where questions of fact remain. Holland v. Sanfax Corp., 106 Ga.App. 1, 5, 126 S.E.2d 442 (1962).

2. The Williams also contend that the trial court erred in granting summary judgment to defendants Georgia Power, Nico, C&W and Edwards on the ground that they owed no duty of care to appellant. ITR contends that the trial court erred in failing to grant its motion for summary judgment based on ITR's duty of care to appellant.

(a) The Williams contend that Georgia Power failed in its duty of care owed to Mr. Williams because it knew, or should have known, that workers such as Mr. Williams would come in close proximity to the power line and that Georgia Power was negligent in maintaining such a line 6'4 from the building, or having done so, in failing to warn persons working on the building of the danger of such high voltage line.

In support of their argument, appellants state that the proximity of the high voltage electrical line to the building Mr. Williams was painting violates Georgia Power's own safety standards, as well as the National Electrical Safety Code, which has been adopted by ordinances of the City of Atlanta. However, no evidence was presented to support this allegation or to show what was required by such standards, code and ordinances, and this court cannot take judicial notice of a municipal ordinance. Oliver v. City of Macon, 148 Ga.App. 346, 347, 251 S.E.2d 175 (1978).

Georgia Power's duty in such matters is controlled by Code Ann. § 34B-203, which prohibits the use of any tools or equipment such as that used by Mr. Williams within eight feet of any high voltage lines, except where such lines have been effectively guarded against danger from accidental contact in certain specified ways. Code Ann. § 34B-205 provides that when such tools or equipment are to be used within eight feet of any high voltage line, the person or persons responsible for the work being done shall promptly notify the owner or operator of the high voltage lines so that the safety precautions required by Code Ann. § 34B-203 can be implemented.

Before Georgia Power can be held to owe a duty to Williams in the instant case, the person or persons responsible for the work must have notified the power company of the "construction work risk." No such notice was given and thus, the risk involved was not within the scope of the duty owed by Georgia Power to Mr. Williams. Carden v. Ga. Power Co., 231 Ga. 456, 457, 202 S.E.2d 55 (1973). Hence, the trial court was correct in granting summary judgment to Georgia Power.

(b) Appellants also contend that Nico, as general contractor, owed Mr. Williams a duty of care under Code Ann. §§ 105-401 and 34B-201 et seq. and pursuant to Nico's contract with ITR.

As an employee of Power Painting Co., a subcontractor of Nico, appellant was an invitee on the premises. Code Ann. § 105-401 provides: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Nico argues that because it was not in possession or control of the premises and did not supervise appellant's work, it owed no duty to appellant as an...