Wilmock, Inc. v. French
| Citation | 363 S.E.2d 789,185 Ga.App. 259 |
| Decision Date | 23 November 1987 |
| Docket Number | No. 74996,74996 |
| Parties | WILMOCK, INC. v. FRENCH |
| Court | United States Court of Appeals (Georgia) |
Marshall R. Wood, Savannah, for appellant.
Stephen R. Yekel, Savannah, for appellee.
Appellee-plaintiff is a homeowner. She brought this suit in tort against appellant-defendant and numerous others, seeking to recover damages for the malfunctioning septic tank system that was located on her property. Appellant is the general contractor who built the house and appellee alleged that appellant's negligence in that capacity was a proximate cause of the injury to her property. Appellant answered, denying the material allegations of appellee's complaint.
The case came on for jury trial. At the close of appellee's evidence and then again at the close of all the evidence, appellant moved for a directed verdict. The trial court denied the motion in both instances. The jury returned a verdict in favor of appellee and the trial court entered judgment thereon. Appellant's motion for judgment n.o.v. or, in the alternative, for new trial was denied and it appeals.
1. In related enumerations of error, appellant raises the general grounds. In Dunant v. Wilmock, Inc., 176 Ga.App. 48, 335 S.E.2d 162 (1985), appellant was sued by another plaintiff-property owner whose complaint contained similar allegations as to appellant's negligent performance as a general contractor and the injurious consequences thereof. In that case, this court held that appellant was entitled to summary judgment as against the property owner, reasoning as follows: Dunant v. Wilmock, Inc., supra at 48-49, 335 S.E.2d 162. On this appeal, appellant urges the existence of similar undisputed evidence and contends that it is, therefore, entitled to a favorable outcome similar to that which it secured by the Dunant opinion.
As indicated, the Dunant case was on summary judgment and its focus was solely upon allegations of appellee's negligence with reference to the installation of the septic tank system. Thus, the opinion in Dunant stands for the proposition that appellant, as the movant for summary judgment, had met its burden as to those allegations, in that its undisputed evidence showed that the septic tank system had been installed by an independent contractor and the applicable law provides that "[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in [that business he] is not subject to the immediate direction and control of the employer." (Emphasis supplied.) OCGA § 51-2-4. Therefore, implicit in the holding of Dunant is that the plaintiff-property owner therein had not met his burden of showing the applicability of any recognized exception to the general rule of non-liability which appellant's evidence had shown to be controlling under the circumstances. "An employer is liable for the negligence of a contractor: [in several specific enumerated instances]." (Emphasis supplied.) OCGA § 51-2-5.
The case at bar does not involve summary judgment, but a judgment entered on a verdict returned after a jury trial. Unlike Dunant, supra, the alleged negligence attributed to appellant in this case is not merely as to the installation of the septic tank system on appellee's property. There is also evidence that appellee's property had been graded in a turtleback fashion so that it was higher in the center and sloped down toward the property lines. Although the evidence shows that neither the installation and placement of appellee's septic tank system nor the turtleback grading of her property would, standing alone, necessarily constitute negligent construction, the evidence also shows that the combination of the installation and placement of the septic tank system with the turtleback grading of the property had caused surface water to collect and stand in the area directly above appellee's septic tank, rather than to drain off appellee's property. The result of this standing water was the flooding of the entire septic system and a backup of waste water into appellee's home. Although the evidence does show that both...
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...damages which may thereafter accrue from the defective condition of the work. (Cits.) (Cit.)' [Cit.]" Accord Wilmock, Inc. v. French, 185 Ga.App. 259(1), 363 S.E.2d 789 (1987). If the evidence is sufficient to show misfeasance and negligence on the part of DOT's employees in undertaking to ......
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