Winslett v. Twin City Fire Ins. Co.

• Decision Date: 28 January 1977
• Docket Number: No. 52816,No. 3,52816,3
• Parties: O. C. WINSLETT v. TWIN CITY FIRE INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 638

232 S.E.2d 638

141 Ga.App. 143

O. C. WINSLETT v. TWIN CITY FIRE INSURANCE COMPANY et al.

No. 52816.

Court of Appeals of Georgia, Division No. 3.

Jan. 28, 1977.

Shelfer, Shelfer & Eldridge, Frank M. Eldridge, Decatur, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, Frederick E. Link, Atlanta, J. Littleton Glover, Jr., Newnan, David A. Handley, Atlanta, for appellees.

SMITH, Judge.

Oscar Cliff Winslett, a crane operator, was injured while moving a crane to level ground to be dismantled. The crane was owned by Batson-Cook Company, the employer of Winslett, engaged in constructing a post office in Rome, Georgia. The crane had been stopped at the dismantling area, the boom raised to an 85 angle, and while the boom was being swung from the rear to the front, the crane tipped on its side, injuring Winslett. He brought an action against the job supervisor, Pete R. Greene, the architects, Cooper, Cary and Associates and Twin City Fire Insurance Co., d/b/a The Hartford Insurance Company, et al (hereinafter referred to as Twin City). The trial judge granted a summary judgment to Twin City and the complainant appealed to this court.

1. (a) The action, as against Twin City, the general liability insurer, was based upon the theory that it voluntarily inspected or surveyed the job site and became liable for any negligent inspection or survey. Both parties rely generally upon the following cases: Sims v. American Casualty Co., 131 Ga.App. 461, 206 S.E.2d 121; Pennsylvania Millers Mutual Insurance Co. v. Thomas Milling Co., 137 Ga.App. 430, 224 S.E.2d 55; Aetna Casualty & Co. v. C.P. Co., 134 Ga.App. 552, 556, 215 S.E.2d 314; Tillman v. Travelers Indemnity Co., 506 F.2d 917, 5 Cir.; Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289, 5 Cir. In the federal cases it even held reliance upon the inspections by either the employer or employee was essential to recovery. The Georgia cases above cited may intimate, but do not expressly hold, that reliance on the inspections or survey is a necessary element of recovery.

The American Law Institute Restatement of the Law 2d Ed., Torts, § 324A in the text thereof reads as follows: 'One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if '(a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.'

In the 'caveat' following the text under the caption, 'Reliance' the following appears: 'The actor is also subject to liability to a third person where the harm is suffered because of the reliance of the other for whom he undertakes to render the services, or of the third person himself, upon his undertaking. This is true whether or not the negligence of the actor has created any new risk or increased an existing one. Where the reliance of the other, or of the third person, has induced him to forego other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk.' Twin City contends that the evidence shows there was no reliance either by the contractor or the complainant upon the survey or inspections by Twin City. The appellant contends that no reliance is necessary under the rules stated in our cases. The present case is one wherein such reliance was alleged, but was shown not to exist; however, as we view the case, it is not necessary to decide whether or not a reliance on the inspections or surveys was a necessary element in the theory of complainant's recovery as the proof presented on the motion for summary judgment conclusively shows that any inspections or surveys made by Twin City or lack of inspection or survey, which under the rule in Sims it may have been obligated to make after beginning inspections or surveys, was not the proximate cause of complainant's injury.

(b) The evidence shows that the insurer made surveys of the job site and working conditions at intervals of one to three months and that oral reports...