Walter v. Orkin Exterminating Co. , 192 Ga. App. 621 ( 1989 )

Deen, Presiding Judge.

This is an appeal from the final order of the trial court denying summary judgment to the appellant and dismissing her complaint.

Appellant entered a contract for the fumigation of her house by the appellee Orkin Exterminating Company (Orkin). Appellant left her house in the care and temporary possession of Orkin so that fumigation by “vikane,” a nonflammable gas, could be accomplished. Fumigation commenced and the next morning when Orkin personnel arrived at the site, they discovered appellant’s home had burned down. Appellant brought suit on both tort by negligence and breach of contract theories. Held:

1. Appellant asserts that the trial court erred by dismissing her complaint averment of breach of contract.

Pest control fumigation is an inherently dangerous activity. Accordingly, administrative rules and regulations implementing pest control safety statutes provide for certain safety measures to be taken to protect the public during such a process.

OCGA § 43-45-8 (1) pertinently provides that the State Structural Pest Control Commission is authorized and required to “[m]ake such reasonable rules and regulations as may be necessary to protect the interest, health, and safety of the public and to ensure the efficiency of licensees, operators, and registered employees to carry out this chapter.” Pursuant to this statutory obligation, the Commission has duly promulgated certain rules governing structural pest control. See generally Official Compilation of Rules & Regulations of the State of Ga., Rules of Ga. Structural Pest Control Comm., Chapters 620-1 through 620-10.

Rule 620-8-.02 (1) establishes the following pertinent notification requirements: “The Licensee shall notify the Enforcement Agency [Georgia Department of Agriculture] and the local fire and police departments having jurisdiction, before performing fumigation of any residential or commercial building or other potentially habitable structure. . . .”

Rule 620-8-.04 (1) (c) requires that the operator-in-charge shall: “[m]ake a final inspection before releasing the fumigant and personally confirm that all preparations have been completed, including: ... 2. [t]hat all open flames, pilot lights or oil lamps have been appropriately extinguished. ... 6. [t]hat a capable, alert watchman is present at the fumigation site to prevent entry of any unauthorized person until the exposure period has elapsed. . . .”

The rules promulgated by the State Structural Pest Control Commission pursuant to the general power vested in the Commission under OCGA § 43-45-8 constitute a body of binding administrative law pertaining to all fumigation, as that term is defined in Rules 620-8-.01. It is well-established that “ ‘[t]he laws which exist at the time and place of the making of a contract, enter into and form a part of it’ [cits.]; and the parties must be presumed to have contracted with reference to such laws and their effect on the subject matter. . . .” (Emphasis supplied.) McKie v. McKie, 213 Ga. 582 (2) (100 SE2d 580); Busbee v. Ga. &c. Univ. Professors, 235 Ga. 752 (2) (221 SE2d 437); Freeman v. Decatur Loan &c. Corp., 140 Ga. App. 682 (3) (231 SE2d 409); EGL, Contracts § 6. Accordingly, we find that the above rules were part and parcel of any fumigation contract entered between the appellant and appellee Orkin. In this case, had appellees strictly complied with these rules, regardless of the original purpose for which they were promulgated, it reasonably appears that the degree of damages sustained by appellant could have been reduced, although not totally prevented. In any event, a genuine issue of material fact exists as to whether certain provisions of the aforementioned rules have been complied with by the appellees.

Compensatory damages may be awarded as a result of breach of contract. OCGA § 13-6-1. However, damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and as the parties contemplated, when the contract was made, as the probable result of its breach. OCGA § 13-6-2. Moreover, remote or consequential damages are not recoverable unless they can be traced solely to the breach of the contract or unless they are capable of exact computation and are independent of any collateral enterprise entered into in contemplation of the contract. OCGA § 13-6-8; National Consultants v. Burt, 186 Ga. App. 27, 36 (366 SE2d 344), writ vacated, 258 Ga. 645 (374 SE2d 532); EGL, Damages § 14. OCGA § 13-6-2 (Code Ann. § 20-1407) “provides for damages not only ‘such as arise naturally and according to the usual course of things from such breach’ but also ‘such as the parties contemplated, when the contract was made, as the probable result of its breach.’ ” (Emphasis supplied.) Lindgren v. Dowis, 236 Ga. 278 (5) (223 SE2d 682); Cobb & Eldridge, Ga. Law of Damages (2d ed.) § 2-4. “In contract actions, damages which may reasonably be considered to be in the contemplation of the parties are recoverable. This is distinguished from the tort situation where the consequences which naturally and proximately follow the wrongful act need not have been contemplated by the parties.” (Emphasis supplied.) Cobb & Eldridge, supra at p. 24, n. 3. Usually, the question of what matters reasonably may be said to have been in the contemplation of the parties when the contract was made is one of fact for jury determination. Based on the record now before us, we find that the trial court erred in dismissing the breach of contract averment and its prayer for compensatory damages.

2. Appellant contends it was error to dismiss her claim for negligence in that the doctrine of the res ipsa loquitur established her prima facie case of negligence.

The elements of the res ipsa loquitur doctrine are: “ ‘(1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ ” Simonds v. Conair Corp., 185 Ga. App. 664 (3) (365 SE2d 507); Johnson v. Dallas Glass Co., 183 Ga. App. 584, 585 (359 SE2d 448). Further, “[t]he accident must also be ‘of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ ” Housing Auth. &c. v. Famble, 170 Ga. App. 509, 525 (317 SE2d 853). Moreover, “ ‘(r)es ipsa loquitur should be applied with caution and only in extreme cases; ... it is not applicable when there is an intermediary cause which produced or could produce the injury, or where there is direct unambiguous testimony as to the absence of negligence by the defendant, or where there is no fair inference that the defendant was negligent.’ ” Id. at 526. In this case, appellant’s house was destroyed by fire. There is evidence that a portion of the structure included a log cabin over 100 years old. There is also some evidence that a gas line to a stove could have been severed by someone moving the stove; there exists no evidence that Orkin personnel moved the stove, and the stove was under the exclusive control and ownership of appellant before Orkin personnel took over the premises to begin fumigation procedures. Considering these factors, together with all other evidence of record, we are satisfied that even under the more relaxed test of Sams v. Gay, 161 Ga. App. 31 (2) (288 SE2d 822) and Smith v. Telecable &c., 142 Ga. App. 535, 536 (236 SE2d 523), the evidence in this case does not afford “a rational basis for concluding that the house would not have burned in the absence of negligence and that the [appellees were] responsible for any negligence which may in fact have occurred.” (Emphasis supplied.) Sams, supra at 34. Moreover, the evidence before us falls short of meeting the standard of Famble, supra at 526, that “[b]efore res ipsa loquitur is applicable, the act must speak not only of negligence, but of negligence on the part of the defendant.”

Accordingly, we are satisfied that the trial court did not err as asserted in the above enumeration.

3. The appellant also asserts that the trial court erred in dismissing that portion of her complaint grounded on her claim of negligence per se.

In determining whether the violation of a statute, or ordinance, is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide “ ‘ “(1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.” ’ ” See West v. Mache of Cochran, 187 Ga. App. 365, 367 (370 SE2d 169); Lively v. Trust, 184 Ga. App. 361, 362 (361 SE2d 516). To prevail on a negligence per se claim, a causal relation be tween the violation of the statutory duty and the injuries sustaine thereby must be shown. Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (333 SE2d 829).

In the instant case, there is no question that the appellant fel within the class of protected persons, and it seems fairly clear tha the risk of fire was one of the harms guarded against by the pertinent regulation, else the requirement of notifying the local fire department would make little sense. Concerning the necessity of showing a causal connection between the violation of the regulation and the injuries sustained, the appellant submitted the affidavit of the fire chief, who stated that “the fire at the Myrtice Walter residence would have been brought under control easier and there would have been less damage to the Myrtice Walter property if the Union County Fire Department had been notified sooner of the fire.” Presumably, had the appellees posted a watchman as required, the fire department would have been notified sooner. This evidence sufficed to create a jury question on the issue of damages in the negligence per se claim, and the trial court erred in dismissing the appellant’s complaint on that claim.

Judgment reversed.

Carley, C. J., McMurray, P. J., Banke, P. J., Sognier, Pope and Benham, JJ., concur. Beasley, J., concurs specially. Birdsong, J., concurs in part and dissents in part.