Wooten v. Central Georgia Electric Membership Corp. ( 1994 )

Smith, Judge.

Eddie Wooten filed this action against the Central Georgia Electric Membership Corporation to recover damages for personal injuries incurred when he was shocked by a high voltage line. The trial court granted the EMC’s motion for summary judgment.

Wooten had been employed as a truck driver by the Eatonton Co-op Feed Company for approximately one year at the time of the incident. On August 14, 1990, he was assigned to deliver a load of grain to the Sprayberry Dairy Farm. He had been there before, assisting another driver, but this was the first time he was called upon to make a delivery to the farm alone. The delivery required him to back his truck up to the customer’s storage bin so that a moveable boom on the back of the truck could be positioned to unload the grain. With the boom in proper position, a screw-like device pushes grain from the truck into the bin through the boom. The controls for operating the boom are located at the rear of the truck.

Wooten had unloaded the grain and was standing at the boom controls in the process of removing the boom from the bin when he noticed smoke emanating from the truck. He immediately went to the cab to turn the truck’s engine off, unaware that the boom had made contact with a high voltage wire. When Wooten placed his foot on the truck’s running board he was jolted with the primary wire’s current.

Wooten contends the trial court erred in granting summary judgment to the EMC. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“ ‘It is elementary that one maintaining high tension lines must do so in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines. That was the duty owed by the power company to [Wooten] in this case.’ [Cit.]” Three Notch Elec. Membership Corp. v. Bush, 190 Ga. App. 858 (1) (380 SE2d 720) (1989). Wooten alleged the EMC was negligent in failing to exercise proper care “based on the circumstances” and in maintaining its high voltage wire in the “immediate proximity” of the grain bin when it knew, or should have known, that persons such as appellant might be injured. Although he asserts in his brief that the EMC “definitely had notice of the existence of the dangerously close proximity of its high voltage lines to the grain bin on the Sprayberry Farm,” Wooten failed to show that the line was “dangerously close” to the grain bin. Indeed, the record shows the contrary. Wooten’s own expert, James Roberts, a mechanical and civil engineer, estimated the lines were 17 or 18 feet away from the bin, and testified that “[t]here were no violations [of the National Electrical Safety Code]. In other words, the bin was far enough away that you did not break any violation horizontally, as well as you didn’t break them vertically.” James Henderson, an EMC serviceman, testified at deposition that the grain bin was not under the power line but “way away from the line.” We find this case indistinguishable in that respect from Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99 (432 SE2d 675) (1993) in which both the plaintiff and his expert admitted the power line met industry clearance standards. Id. at 100 (1).

In addition, there is evidence in the record showing the EMC could not reasonably have expected Wooten to come into contact with its wire. Grain deliveries to a dairy farm are not unusual. The high voltage line had been in the same position since 1981. The feed bin was erected in 1987. Charles Maddox, manager of engineering at the EMC, could not recall any injury resulting from a grain delivery truck coming into contact with an electric wire in the more than 20 years he had been employed at the EMC. This evidence not only discharged the EMC’s burden of showing an absence of evidence to support Wooten’s case, it affirmatively disproved Wooten’s allegations. Summary judgment was therefore properly granted in favor of the movant EMC. Lau’s Corp., supra, 261 Ga. at 491.

Finally, Roberts testified that a notice posted on the rear of Wooten’s truck warned of the consequences of operating the boom around electric lines. Even assuming there had been some negligence on the part of the EMC, Wooten could have avoided injury entirely had he read and heeded the warning. Here, as in Brown, supra, 209 Ga. App. at 100-101 (2), his injuries were the direct result of his failure to exercise ordinary care for his own safety, presenting another reason for affirming the trial court’s grant of summary judgment to appellee.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., McMurray, P. J., and Blackburn, J., dissent.