Preston v. Georgia Power Co. , 227 Ga. App. 449 ( 1997 )

Smith, Judge.

While cleaning a railroad freight car, Roy Preston was grievously injured by contact with a high-voltage power line. He sought damages from Georgia Power Company, the owner of the power line, and Ashland Chemical Company, for which he was working at the time of the incident. Insurance Company of North America (“INA”) intervened seeking to enforce its subrogation rights under OCGA § 34-9-11.1 (b) for its payment of workers’ compensation benefits to Preston.¹

The trial court granted summary judgment to Ashland and Georgia Power. Preston originally appealed to the Supreme Court because he contended the constitutionality of the High-voltage Safety Act, OCGA §§ 46-3-30 through 46-3-40, was called into question. Ashland moved to transfer the appeals to this Court, and Preston opposed the transfer on the ground that a constitutional issue had been raised and ruled upon by the trial court in an earlier order, as to which the Supreme Court had refused interlocutory review. The Supreme Court granted Ashland’s motion to transfer the appeals to this Court on the ground that the trial court decided no constitutional issue in the order appealed from. See Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994).

The trial court granted summary judgment to Ashland on the ground of the workers’ compensation tort bar and to Georgia Power on the ground of lack of proximate cause. Because Preston was a “borrowed servant” of Ashland at the time of his injury, and because Georgia Power was protected by Ashland’s lack of notice of a hazardous activity under the High-voltage Safety Act, we affirm.

The evidence, construed in Preston’s favor, shows the following: Ashland received bulk chemicals via railcar on a siding between its plant and a power line running parallel to the plant wall and the siding. Occasionally, chemicals became clogged in the hoppers of the railcar, and Ashland employees were instructed to clean out the rail-car from the top. It is undisputed that for many years Ashland’s accepted method of cleaning railcars was to lower an employee into the car in a safety harness with a broom or shovel. In May 1992, Ash-land’s environmental health and safety department recommended a change in this method because of the potential danger of lowering an employee into a confined space with chemical dust. Some time after this recommendation, Ashland began using a shovel or spader on a 20- to 22-foot metal pole so that employees could stand on top of the railcars to remove the residue. Ashland employees used this spader “long-ways,” with the pole parallel to the length of the railcar, because they were aware they could be hurt by the power lines.

On June 22, 1993, Preston was working for Ashland as a temporary employee assigned by ProTemps, a temporary labor agency. Preston was given the spader and instructed to clean out a railcar. This violated Ashland’s policy that no temporary employees were to be allowed on top of railcars. Preston was not given any instructions in the use of the spader. Although he testified he did not see the power lines, he agreed there was nothing to prevent his seeing them and he knew it would be dangerous to touch power wires with a pole. While standing on top of the railcar, he swung the pole at right angles to the track and contacted the power lines, suffering severe personal injury. The power lines were between 26 and 28 feet above the ground and approximately 11 feet to one side of the railroad track; the diagonal clearance was measured at approximately 13 feet from the top of the railcar.

Ashland employees testified that they knew of no personal injury from the power lines on Ashland’s premises before Preston was hurt. No evidence was presented that Georgia Power knew Ashland had begun using a 20- to 22-foot metal pole in the vicinity of existing power lines. No witness testified that Georgia Power personnel were present at Ashland on previous occasions when railcars were on the track, when unloading operations were taking place, or when the spader was being used. Georgia Power was never notified that the spader would be used or that work was to be performed within ten feet of its lines.

1. With respect to Preston’s claims against Ashland Chemical, the only issue is the application of the workers’ compensation tort bar, OCGA § 34-9-11 (a). At the time of his injury, Preston was a temporary laborer assigned by his employer, ProTemps, to Ashland Chemical. Ashland contends that it is protected by the statutory bar because Preston was its borrowed servant at the time of his injury. Ashland presented testimony that Preston was under its exclusive supervision and control while working at its facility with respect to the work performed by Preston and its power to discharge him.

Preston, however, points to the testimony of an Ashland “compliance specialist” or safety officer agreeing that he “wouldn’t have a problem with” ProTemps substituting another ProTemps worker in Preston’s place, and the testimony of an Ashland manager that Pro-Temps would do the actual firing if Ashland became dissatisfied with Preston. This testimony, he contends, forestalls summary judgment on the issue of whether he was a borrowed servant at the time of bis injury.

“[I]n order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant.” (Citations and punctuation omitted.) Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981). “[A]ll three prongs of the test must focus on ‘the occasion when the injury occurred’ rather than the work relationship in general.” Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374 SE2d 821) (1988). Because a temporary labor service “is in the very business of temporarily ‘loaning’ its employees to others[,] [cits.],” Sheets v. J. H. Heath Tree Svc., 193 Ga. App. 278, 279 (387 SE2d 155) (1989), this Court has repeatedly considered the employment status of such agency employees. See, e.g., Staffing Resources v. Nash, 218 Ga. App. 525, 526 (462 SE2d 401) (1995); Sheets, supra; Stephens, supra. The crucial issue here is whether the extent of control retained by ProTemps over Preston is sufficient to void the third part of the “borrowed servant” test: the exclusive right to discharge.

The Ashland manager’s testimony that ProTemps would do the actual firing at the request of Ashland does not show a nonexclusive power to discharge; that theory was expressly addressed and rejected in Nash, supra at 526. Here, we must decide whether the Ashland employee’s testimony that he would not object to ProTemps’s removing Preston and substituting another temporary worker in his place deprives Ashland of its exclusive power to discharge as described in Nash, Sheets, and Stephens. We conclude that it does not.

Even if ProTemps retained some authority to remove Preston from his position at Ashland, the power of the general master to reassign or discharge a borrowed servant is irrelevant to the servant’s employment status with the special master. In Six Flags, supra, the Supreme Court defined the special master’s “exclusive right to discharge” the borrowed servant as the power to unilaterally discharge from working on the specific task assigned by the special master and from working for the special master. Six Flags, supra at 378 (1).

In Stephens, supra, relying on the holding in Six Flags, this Court reiterated that the focus of the borrowed servant test must be the special master’s control at the time of the injury, rather than generally, and that this is also true of “the rights of the special master to discharge the servant and to put another in his place.” (Citation and punctuation omitted.) Stephens, supra at 7-8. With respect to Preston, ProTemps “obviously retained some control over him, including the right to terminate his employment as its ‘lendable servant.’ However, once there was an assignment of appellant to a special master, [ProTemps] relinquished that control during the existence of the ‘borrowed servant’ relationship.” Sheets, supra at 279.

This result is consistent with our earlier holding in Jarrard v. Doyle, 164 Ga. App. 339, 340 (297 SE2d 301) (1982). In Jarrará, a hotel employee was temporarily assigned to assist a contractor in performing repair work on the hotel and therefore became a borrowed servant of the contractor. Even though the hotel retained some authority over its employee and “could have taken him off the project and assigned him to other work at any time,” id. at 340, the contractor, as the special master, “clearly had the exclusive right to control and direct the plaintiff’s work on the particular task in question, as well as to dismiss him from that task for unsatisfactory performance” because “the right to discharge that the special master must have means the right to discharge the servant from that particular work.” (Citations and punctuation omitted.) Id. at 340 (1).

Undisputed testimony was presented that Ashland had unilateral authority to discharge Preston from the work assigned to him; on the morning in question it removed Preston from his task of labeling cans and directed him to clean the railcar. It could do so without the permission of ProTemps; a ProTemps officer, by affidavit, stated that ProTemps had no authority to countermand such an order. Because Ashland had this unilateral right to discharge Preston from the particular work he was engaged in at the time of his injury, the trial court did not err in holding that Preston was a borrowed servant and that his claim was barred by OCGA § 34-9-11 (a).

2. Preston also complains of the trial court’s grant of summary judgment in favor of Georgia Power on the ground of lack of proximate cause. We need not address Preston’s contention because summary judgment was proper under OCGA § 46-3-39 (a); Ashland and Preston failed to notify Georgia Power of work taking place within ten feet of its line.

We cannot, as the dissent asserts, attempt to examine the motives of the Supreme Court in first denying an interlocutory application on the constitutionality of the High-voltage Safety Act and then transferring these appeals to this Court. The dissent is incorrect in its conclusion that the transfer of these appeals to this Court is dispositive of any constitutional issue or circumscribes our authority to rule on an issue that was raised and argued below. See Atlanta Independent School System v. Lane, 266 Ga. 657 (469 SE2d 22) (1996) (transfer of case to Court of Appeals not dispositive of constitutional issues). It is also incorrect in its assertion that Preston will be unable to raise this issue at a later time. While Preston’s interlocutory application to the Supreme Court on the constitutional issue was denied, he will have yet another opportunity to raise it on certiorari.

Under the authority of Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980), the Supreme Court had the power to review the constitutional issue raised in the Court’s earlier interlocutory order when these appeals were filed. It apparently has declined to do so by transferring the appeals to this Court. We note, however, that the constitutional issue raised by Preston appears irrelevant. Preston’s sole constitutional ground asserts that the High-voltage Safety Act is unreasonable, arbitrary, and capricious because it fails to require the utility to identify which of its lines are high-voltage lines. But a filed and recorded public document in which Ashland granted an electrical power easement to Georgia Power clearly identifies the voltage of the power lines and demonstrates that Ashland had actual notice of the high voltage. In light of the evidence that Ashland was required to give notice to Georgia Power and was aware of the high voltage carried by the power lines, Preston’s lack of knowledge is immaterial to the application of O'CGA § 46-3-39 (a).

Whatever the reasons for the transfer, the applicability of the High-voltage Safety Act was raised and fully briefed below and is before us now. We cannot decline to decide this issue by speculating on the reasons for the Supreme Court’s transfer as specifically forbidden by that Court in Lane. We therefore consider the applicability of the High-voltage Safety Act to this case.²

Several interlocking provisions of the High-voltage Safety Act set out the duties of persons responsible for performing work near high-voltage lines.³ OCGA § 46-3-33 provides in pertinent part: “No person, firm, or corporation shall commence any work as defined in paragraph (6) of Code Section 46-3-32 if at any time any person or any item specified in paragraph (6) of Code Section 46-3-32 may be brought within ten feet of any high-voltage line unless and until: (1) The person responsible for the work has given the notice required by Code Section 46-3-34.” OCGA § 46-3-34 (b) provides: “Where work is to be done, the person responsible for such work shall give notice to the utilities protection center during its regular business hours at least 72 hours, excluding weekends and holidays, prior to commencing such work.”

The High-voltage Safety Act provides a restriction on liability in OCGA § 46-3-39: “(a) The owner or operator of high-voltage lines shall not be liable for damage or loss to person or property resulting from work within ten feet of high-voltage lines unless notice has been given as required by Code Section 46-3-34 and the owner or operator of the high-voltage line has failed to comply with the provisions of Code Section 46-3-33. (b) Except as provided in subsection (a) of this Code section, nothing in this part shall be construed or applied so as to limit or reduce the duty or degree of care applicable to owners or operators of high-voltage lines with respect to damage or loss to person or property.”

In refusing to grant summary judgment to Georgia Power on the basis of OCGA § 46-3-39 (a), the trial court relied upon a number of decisions that predate extensive and substantial amendments to the High-voltage Safety Act. Ga. L. 1992, p. 2141, § 1. Before the 1992 amendment, the Supreme Court of Georgia construed the High-voltage Safety Act to hold that even if the Act were violated, the utility nevertheless must show that the lines were properly located and maintained in order to bar recovery. Malvarez v. Ga. Power Co., 250 Ga. 568, 569 (300 SE2d 145) (1983). In so holding, the Supreme Court pointed to the language of former OCGA § 46-3-38 (Code Ann. § 34B-209), which provided in its entirety: “‘Nothing in this part shall be construed or applied so as to limit or reduce the duty or degree of care applicable to owners or operators of high-voltage lines with respect to damage or loss to person or property.’ [Cit.]” Id. at 569. Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99 (432 SE2d 675) (1993), relied upon by the trial court, expressly stated that the earlier version of the High-voltage Safety Act was applicable in that case. Id. at 100. While the date of the incident in Leonardson v. Ga. Power Co., 210 Ga. App. 574, 575, n. 1 (436 SE2d 690) (1993), is not revealed, the decision simply relies upon Malvarez and does not note the 1992 amendment.

The language of the former Act provided no express restriction on liability like that now codified in OCGA § 46-3-39 (a). It simply forbade the performance of certain work near high-voltage lines without notification and without the completion of certain safety measures. See former OCGA §§ 46-3-31 (Code Ann. § 34B-202); 46-3-32 (Code Ann. § 34B-203); 46-3-33 (Code Ann. § 34B-205). On this basis, Malvarez and its progeny held that the failure to obey these provisions of the Act did not of itself relieve the utility from liability. Malvarez, supra at 569.

The 1992 amendment of the High-voltage Safety Act revised the Act in large part and significantly altered the language relied upon in Malvarez. The amendment for the first time provided an explicit restriction on liability and added language that expressly exempts that restriction from the provision that the power line owner’s or operator’s duty or degree of care is not limited or reduced by the Act. See OCGA § 46-3-39 (a), (b).

Under the rules of statutory construction, we must construe all related statutes together, give meaning to each part of the statute, and avoid constructions that result in surplusage and meaningless language. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996). Moreover, we must presume that at the time the 1992 amendment was enacted the legislature was aware of the existing law and the Malvarez decision. Hart v. Owens-Illinois, Inc., 250 Ga. 397, 400 (297 SE2d 462) (1982). The legislature expressly revised the statute to avoid the result in Malvarez; we must conclude that they intended to do so. This conclusion is consistent with this Court’s recent holding in Callaway v. Crown Crafts, 223 Ga. App. 297, 299 (3) (477 SE2d 435) (1996) (physical precedent only),⁴ in which we applied the High-voltage Safety Act, as amended, to relieve the owner of a high-voltage line from liability.

A grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993); see Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). Because Georgia Power was protected under OCGA § 46-3-39 (a) by Preston’s and Ashland’s failure to give the appropriate notice, the trial court correctly granted summary judgment in favor of Georgia Power.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, and Eldridge, J., concur. Beasley, J., concurs specially. Ruffin, J., concurs in the judgment only. McMurray, P. J, dissents.

1 In its appeal, Case No. A97A0777, INA has adopted and incorporated by reference Preston’s briefs.

2 Although we do not reach the issue, the dissent is also incorrect in its adoption of Preston’s claim that he was “blind-sided” by the trial court’s grant of summary judgment on the issue of proximate cause. While the parties’ initial briefs on summary judgment focused on the High-voltage Safety Act, issues of negligence and proximate cause were fully briefed and litigated below in supplemental briefs by both parties.

3 “ ‘Person responsible for the work’ means the person actually doing the work as well as any person, firm, or corporation who employs and carries on his payroll any person actually doing the work or who employs a subcontractor who actually does the work.” OCGA § 46-3-32 (3). “ “Work’ means the physical act of performing or preparing to perform any activity under, over, by, or near high-voltage lines.” OCGA § 46-3-32 (6).

4 The special concurrence in Callaway incorrectly applied Malvarez, supra, and its progeny without reference to the 1992 revisions of the Act. Callaway, supra at 300 (2).