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TECT CONSTRUCTION COMPANY, INC. v. FRYMYER et al.
FRYMYER v. TECT CONSTRUCTION COMPANY, INC. et al.
MCGEE v. FRYMYER et al.
FRYMYER v. MCGEE et al.
55352.
55353.
55354.
55355.
BIRDSONG, Judge.
Action for damages. Cobb Superior Court. Before Judge Emeritus Williford.
The interlocutory appeals in this case arise out of the denial of summary judgments. The facts show that the Atlanta Housing Authority contracted with Monroe Nurseries for some site grading. Monroe subcontracted with T. E. Driskell Grading Co. to perform grading, grubbing and dirt removal. Driskell in turn sub contracted with Tect Construction Co., Inc. to perform the grading.
1. Inasmuch as the same facts control the issues in all four interlocutory appeals, we will consider these appeals as one case. In case no. 55352, Tect Construction urges error in the denial of its summary judgment. In respect to the duty owed by a general contractor to maintain safety regulations or conduct its business so as to protect employee-invitees on the construction site, we accept as controlling the rule announced by this court in Batson-Cook Co. v. Shipley, 134 Ga. App. 210, 212 (214 SE2d 176): "The duty of ordinary care that a patron owes to his invitees is the same duty of ordinary care in keeping the premises safe which a master owes to his servant. Elrod v. Ogles, 78 Ga. App. 376 (50 SE2d 791). In either case, two elements must exist in order to merit recovery: fault on the part of the owner, and ignorance of the danger on the part of the invitee. Accordingly, the duty which a general contractor. . . owes the subcontractor is to exercise the care of an ordinarily prudent person to prevent him from being exposed to a hazard or hazards other than those that ordinarily attend a person s presence on premises where a building is under construction. Braun v. Wright, 100 Ga. App. 295 (111 SE2d 100) . . . 'The basis of the proprietor's liability is his superior knowledge, and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting in view of his knowledge, assumes the risks and dangers incident to the known conditions.' Rogers v. Atlanta Enterprises, 89 Ga. App. 903, 906 (81 SE2d 721)."
In this case, grading was being conducted in an open field. There were three clearly visible poles carrying a power line through the area. There were many construction vehicles operating in the area, including bulldozers, dump trucks and compactors. These vehicles were constantly being operated in all directions as a part of the grading operation. Frymyer, while taking a break, leaned against one of the poles while watching the operation of a piece of equipment across the road. Although he was aware of the compacting activities of McGee in the immediate vicinity, Frymyer's back was to McGee's truck.
We are not here confronted with a hidden danger known to the proprietor but unknown to the invitee. See Chambers v. Peacock Const. Co., 115 Ga. App. 670 (155 SE2d 704). Similarly, the operation of the dump truck in the grading area was a routine activity, and the power pole, standing alone, presented no hazard. There being no duty to exercise extraordinary care, there is no liability for an injury resulting to an invitee from a danger best known to the invitee who assumes the obvious risks and dangers inherent in the known circumstances (Rogers v. Atlanta Enterprises, supra). It follows that the trial court erred in denying summary judgment to the third-party defendant Tect Construction Co.
2. In cases 55353, 55354, and 55355, the issue raised is whether McGee and Frymyer were co-employees of the same employer or whether McGee and Frymyer were independent contractors and thus not subject to the limitation contained in Code Ann. 114-103. In the case of Frymyer there may be an issue as to whether Frymyer was the employee of an independent contractor, Black, or a loaned servant to Tect Construction Co. In view of our disposition of the first issue (i.e., the question of co-employment) we need not answer the question of the status of Frymyer as a loaned servant.
As we view the evidence, there can be no dispute that McGee was an independent contractor. He owned his own equipment. He operated it without supervision. He was not subject to social security or income tax deductions. While the supervisor retained the right to insist upon the final result, he did not control the means by which the final result was obtained. Both McGee himself and Tect Construction Co. considered McGee to be an independent contractor. These facts fall within the classic definition of an independent contractor. Simpkins v. Unigard Mut. Ins. Co., 130 Ga. App. 535, 538 (203 SE2d 742); Banks v. Ellijay Lumber Co., 59 Ga. App. 270, 272 (200 SE 480).
Nevertheless, McGee urges that decisions from foreign jurisdictions hold that one should look to the practicalities of the situation. He urges that Tect Construction directed the grading operations through its supervisor Johnson, that both McGee and Frymyer were subject to the control of Johnson, that both men were paid by Tect whether directly or indirectly, that both men were engaged in the same project, i.e., the grading and filling of a site for the Atlanta Housing Authority, and thus both men ultimately were employed by Tect Construction Co. within the contemplation of Code Ann. 114-103.
We cannot accept this analysis of Code Ann. 114-103. The statute in question has as its basic purpose the preclusion of other remedies where the injured workman is entitled to recover workmen's compensation. The exception is that an on-the-job injury is not so limited where the injury is the result of the negligence of a third-party tortfeasor. But the statute consistently provides that a fellow "employee" may not be considered a third-party tortfeasor. Where, as in this case, the evidence shows that Tect Construction and McGee occupied the status of employer and independent contractor, such evidence precludes the relation of employer and employee as between Tect Construction and McGee. Zurich Gen. Acc. &c. Co. v. Lee, 36 Ga. App. 248 (136 SE 173); Maryland Cas. Co. v. Radney, 37 Ga. App. 286, 287 (139 SE 832). See Burnett v. King, 88 Ga. App. 771, 774 (77 SE2d 772). Thus, while it might be argued that Frymyer and Tect Construction were in a master-servant (i.e., employer-employee) relationship, such a relationship did not exist between McGee and Tect Construction. It follows that McGee and Frymyer were not "employees" of the same employer. As between McGee and Frymyer it was legally possible therefore and within the contemplation of Code Ann. 114-103 for McGee to occupy a third-party relationship to Frymyer.
George M. Fox, J. Robert Persons, Frederick N. Gleaton, for appellees (Case no. 55355).
J. Robert Persons, Frederick N. Gleaton, for appellant (Case no. 55354).
George M. Fox, J. Robert Persons, Frederick N. Gleaton, for appellees (Case no. 55353).
Jack Dorsey, for appellant (Cases no. 55353 and 55355).
Jack Dorsey, Hurt, Richardson, Garner, Todd & Cadenhead, J. Robert Persons, Frederick N. Gleaton, David M. Fox, David I. Funk, for appellees (Case nos. 55352 and 55354).
Kaler, Lefkoff, Pike & Fox, George M. Fox, David I. Funk, for appellant (Case no. 55352).
ARGUED JANUARY 31, 1978 -- DECIDED APRIL 28, 1978 -- REHEARING DENIED JUNE 20, 1978 -- CERT. APPLIED FOR.
Friday May 22 04:15 EDT


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