Bell South Telecommunications, Inc. v. Widner , 229 Ga. App. 634 ( 1997 )

Eldridge, Judge,

dissenting.

I respectfully dissent.

Bell South is a public utility or a related entity, operating under a certificate of public convenience granted by the Georgia Public Service Commission allowing it, or the related entity from which it derives its rights to construct and maintain a telephone system within the meaning of OCGA §§ 46-5-1; 46-5-41 et seq. As a consequence of its status as a utility, Bell South .has the right of use of county, municipal, and state roads and streets in the exercise of its franchise, unlike non-utilities. See generally Blue Ridge Tel. Co. v. City of Blue Ridge, 161 Ga. App. 452, 453-454 (1) (288 SE2d 705) (1982); City of Macon v. Southern Bell Tel. &c. Co., 89 Ga. App. 252, 266-267 (79 SE2d 265) (1953). A telephone company can use the streets and highways for purposes related to installation and maintenance of the telephone lines. City of Macon v. Southern Bell Tel. &c. Co., supra. However, such “use” means lawful use so as not to violate the duties imposed upon it by law or by contract with a governing entity. Southern Bell Tel. &c. Co. v. Scogin, 136 Ga. App. 318, 319-320 (221 SE2d 203) (1975).

The temporary obstruction of a street or highway by a telephone company as part of its construction is not a violation of any public right to use such roadway for travel. Dekle v. Southern Bell Tel. &c. Co., 208 Ga. 254 (66 SE2d 218) (1951), overruled on other grounds, Peachtree-Cain Co. v. McBee, 254 Ga. 91 (327 SE2d 188) (1985). However, the telephone company may be liable in negligence or nuisance for creating a dangerous condition in the public roadway or unlawfully obstructing the roadway. Southern Bell Tel. &c. Co. v. Martin, 229 Ga. 881 (194 SE2d 910) (1972); Southern Bell Tel. &c. Co. v. Howell, 124 Ga. 1050, 1051-1052 (1) (53 SE 577) (1906); City Council of Augusta v. Tharpe, 113 Ga. 152, 158 (6) (38 SE 389) (1901); Southern Bell Tel. &c. Co. v. Scogin, supra at 319; General Tel. Co. &c. v. Rutland, 120 Ga. App. 291 (1) (170 SE2d 431) (1969); Southern Bell Tel. &c. Co. v. Whiddon, 108 Ga. App. 106 (3) (132 SE2d 237) (1963); Blunt v. Spears, 93 Ga. App. 623 (92 SE2d 573) (1956), rev’d on other grounds, Southern Bell Tel. &c. Co. v. Spears, 212 Ga. 537 (93 SE2d 659) (1956); Bleckley v. Western Carolina Tel. Co., 42 Ga. App. 110 (155 SE 83) (1930). “Under certain circumstances, it has been held that the failure to properly maintain utility poles may create an inherently dangerous situation and may result in liability. Lenderman v. Haynie, 89 Ga. App. 513, 519-520 (2) [(80 SE2d 216) (1954)].” Southern Bell Tel. &c. Co. v. Martin, supra at 883; see also South Ga. Power Co. v. Smith, 42 Ga. App. 100 (155 SE 80) (1930). Such inherent danger also arises from construction and maintenance work performed in the main traveled portions of highways, roads, and streets. Under OCGA § 51-2-5 (3) and (4), such duty is non-delegable and is imposed both by statute and implied contract between the utility and the county; therefore, the negligence of an independent contractor or sub-contractor is imputed to the defendant.

Where the power of eminent domain is exercised to perform utility work, the telephone company or public utility is liable for damage to property or a taking whether or not the utility does the act or does it through an independent contractor. See OCGA §§ 22-1-2; 46-5-1; Woodside v. Fulton County, 223 Ga. 316, 319-321 (1) (155 SE2d 404) (1967); see also Ga. Power Co. v. Jones, 122 Ga. App. 614 (178 SE2d 265) (1970). Under the doctrine of inverse condemnation, where an independent contractor performs work for a governmental body or public utility within a right-of-way and causes property damage within or outside of the right-of-way, such employer, notwithstanding an independent contractor relationship, is liable for any resulting damage, because both the federal and state constitutions mandate that private property cannot be taken for public use without just and adequate compensation first being paid. Such constitutional public policy requires that such mandate override the common law doctrine of independent contractor. See Woodside v. Fulton County, supra at 320-321; Ga. Power Co. v. Jones, supra at 615-616. If the doctrine of independent contractor cannot bar liability when property is damaged, then why should such doctrine bar liability when there is personal injury?

The telephone company obtains an easement over private lands and a franchise over public streets and roads, not a fee interest. This franchise or easement allows the erection of poles and guy wires or burial of cable, and the right to enter upon such easement or franchise to construct, maintain, or repair such telephone lines; such franchise does not allow a general interference with the use of the roadway by the public, but allows temporary obstruction of users. Atlantic Coastline R. v. Postal Telegraph-Cable Co., 120 Ga. 268 (48 SE 15) (1904).

(a) Independent contractor under OCGA §§ 51-2-4; 51-2-5.

The case sub judice is distinguishable on the law and facts from Dekle v. Southern Bell Tel. &c. Co., supra, for a number of reasons. First, Dekle dealt with a pedestrian; a pedestrian has a longer opportunity to react and avoid a danger from construction in the road than does a motorist who is moving much faster and must contend with other vehicles, as well as the road conditions. Construction in the main traveled portion of a highway, road, or street has become inherently dangerous since Dekle was decided, not only to the motorist, but also to the construction worker, because of the size, speed, and number of vehicles, despite the many laws to protect the public.¹ Second, since Dekle was decided, the rights of public utilities to work in the public rights-of-way have been further regulated and permitted, provided that the public utilities pay to restore the roadway to the prior condition and do not create an unreasonably dangerous hazard.² The Georgia Department of Transportation has the right and power to allow utility work on state rights-of-way.³ Counties have similar power and control over the county system of roads, but the county is prohibited from imposing a franchise fee, tax, rental fee, or other charge for permission for a utility to use the county road rights-of-way outside a municipality.⁴ Where the plans and specifications of the public utility satisfactorily meet current technical requirements and criteria established by the Georgia Department of Transportation, and no valid reasons exist for the denial of a permit to built or install the utility in the rights-of-way of a street or road, the county must issue the permit to construct the utility in the road right-of-way.⁵ Third, both Woodside v. Fulton County, supra at 320-321, and Ga. Power Co. v. Jones, supra at 615-616, were decided long after Dekle, showing a growing awareness that the common law doctrine of independent contractor has no application when a governmental entity or public utility is involved in work in a public right-of-way and causes damage to property. There is no valid public policy that would allow a plaintiff to recover for the injury to property, the motor vehicle and other personal property, but would bar his or her recovery for his or her own injury; even sovereign immunity has been partially waived to allow recovery under the State Tort Claims Act for personal injury.⁶ Thus, utility construction or maintenance work in the public highways, roads, and streets creates for motorists and construction workers in the roadway an inherently dangerous condition, so that the duty of reasonable care arising from engaging in such work without closing the road, which interferes with public use of the roadways, is a non-delegable duty arising from the rights and duties granted solely to the public utility only and can only be exercised as delegated power by a third party, under the supervision and control of the utility, which imposes liability for the conduct of such independent contractor. OCGA § 51-2-5 (2) and (4).⁷ Further, the Supreme Court has not considered and ruled upon the foregoing issues.

(b) Contract granting control and supervision of the work.

The defendant had a contract with Brookins, which form contract, in Bell South Telecommunications v. Helton, 215 Ga. App. 435 (1) (451 SE2d 76) (1994), was held to create liability under OCGA § 51-2-5 (5), because appellant retained the right to control and supervise the work under the contract.

Generally, an agent cannot, by employing a sub-agent, create an agency between the principal and sub-agent without real or implied authority to do so. However, appellant cannot escape liability by allowing its agent to employ a sub-agent to perform non-delegable duties, under the contract or as a matter of law. See generally OCGA § 10-6-5; Carter v. Bishop, 209 Ga. 919, 926-930 (2) (76 SE2d 784) (1953); White v. J. E. Levi & Co., 137 Ga. 269, 270-271 (2) (73 SE 376) (1911); Burke County Bd. of Ed. v. Raley, 104 Ga. App. 717, 720-721 (1) (123 SE2d 272) (1961); Cowart v. Jordan, 75 Ga. App. 855, 859-860 (2) (44 SE2d 804) (1947); Samples v. Shaw, 47 Ga. App. 337, 338 (3) (170 SE 389) (1933); Cooper v. Lowery, 4 Ga. App. 120 (60 SE 1015) (1908). Further, by accepting the work performed by Pro Grassing and paying Brookins for such work, appellant ratified Pro Grassing as a sub-agent under the contract. See Carter v. Bishop, supra at 927; Harris v. Underwood, 208 Ga. 247, 250 (4) (66 SE2d 332) (1951); Lewis v. C & S Nat. Bank, 139 Ga. App. 855, 859 (1) (229 SE2d 765) (1976); Burke County Bd. of Ed. v. Raley, supra at 721; OCGA § 51-2-5 (6). Therefore, Bell South has imputed to it the negligence of the sub-agent.

Decided December 3, 1997. Langley & Lee, Donald W. Lee, for appellant. William M. Shingler, Ronnie J. Lane, for appellees.

(c) Non-compliance with the implied promise to restore road.

The Supreme Court of Georgia in Dekle, supra at 258, held that a telephone company had an implied contract with the governmental entity that issued the permit to restore the roadway after the utility work had been completed to the roadway’s original condition. Failure by the independent contractor to so restore could constitute a violation of a duty imposed by contract under OCGA § 51-2-5 (3). The undisputed evidence in this case was that the trench in which the new telephone cable had been laid partially collapsed under the weight of appellees’ vehicle in the rain. Such evidence raised a material issue of fact as to whether or not the independent contractor performed the duty imposed on Bell South to restore the roadway to its original condition. OCGA § 51-2-5 (3); Dekle, supra at 256.

1 Subsequent to Dekle, a number of statutes were passed that indicate a public safety-concern over danger on the highways, roads, and streets of Georgia, and construction on the roadways. See OCGA §§ 32-6-1; 32-6-20 et seq.; 40-6-4; 40-6-75; 40-6-181; 40-6-182; 40-6-188; 40-10-1 et seq.

2 OCGA §§ 32-6-1; 32-6-170; 40-6-5; 40-6-188; Crider v. Kelley, 232 Ga. 616, 619 (208 SE2d 444) (1974); City of Fairburn v. Cook, 188 Ga. App. 58, 60-61 (2) (372 SE2d 245) (1988). Dekle, supra at 258, held that any permit from governing authorities to work on the road implies a contract with the utility to restore the roadway to its original condition after the utility work is completed.

3 OCGA § 32-2-2; Crider v. Kelley, supra at 618-619.

4 OCGA §§ 32-4-1 (2); 32-4-40 et seq.; Clack v. Henry County, 261 Ga. 623 (409 SE2d 647) (1991); DeKalb County v. Ga. Power Co., 249 Ga. 704 (292 SE2d 709) (1982).

5 DeKalb County v. Ga. Power Co., supra at 705-707; see also Faulkner v. Ga. Power Co., 243 Ga. 649, 650-651 (256 SE2d 339) (1979); Ga. R. &c. Co. v. City of Atlanta, 154 Ga. 731, 744-746 (115 SE 263) (1922).

6 The issue of sovereign immunity does not apply when the damages flow from inverse condemnation to property. Powell v. Ledbetter Brothers, Inc., 251 Ga. 649, 650-651 (2) (307 SE2d 663) (1983), overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557 (398 SE2d 191) (1990). OCGA § 50-21-20 et seq. would allow a personal injury action where an individual was injured as a result of work performed for the state by an independent contractor in a public right-of-way, when such duty is non-delegable. See Williams v. Ga. Dept. of Corrections, 224 Ga. App. 571, 573-576 (481 SE2d 272) (1997); see also OCGA § 50-21-22 (7).

7 As to construction work that is inherently dangerous, see Powell v. Ledbetter Brothers, Inc., supra at 651-652; see also David Allen Co. v. Benton, supra at 558; Carney v. JDN Constr. Co., 206 Ga. App. 785, 786 (1) (426 SE2d 611) (1992); Samuelson v. Lord, Aeck &c., 205 Ga. App. 568, 571 (423 SE2d 268) (1992); Johnson v. Fowler Elec. Co., 157 Ga. App. 319, 320-321 (2) (277 SE2d 312) (1981); Wilner’s, Inc. v. Fine, 153 Ga. App. 591, 592-593 (1) (266 SE2d 278) (1980); PPG Indus. v. Genson, 135 Ga. App. 248, 250-251 (2) (217 SE2d 479) (1974); Peachtree North Apts. Co. v. Huffman-Wolfe Co., 126 Ga. App. 594 (191 SE2d 485) (1972); Queen v. Craven, 95 Ga. App. 178, 183-184 (3) (97 SE2d 523) (1957).