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Federated Department Stores v. Superior Drywall & Acoustical12/18/2003
In plaintiff Judy Vandevender's trip and fall personal injury suit, the State Court of Bibb County granted summary judgment to third-party defendant Superior Drywall & Acoustical, Inc. ("Superior") and denied summary judgment to defendants/third-party plaintiffs Federated Department Stores d/b/a Rich's/Macey's of Macon ("Federated") and Orion Building Corporation ("Orion"). Federated and Orion appeal. For the reasons that follow, we find no error in the trial court's judgments and affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the non-movant.
Viewed in such light, the evidence of record shows that Federated's Rich's department store in Macon underwent extensive renovation in 1999. Federated hired Orion as the contractor; Orion hired Superior to do the drywall work. The Rich's store remained open throughout the renovation. In order to facilitate on-going construction and retail customers at the same time, a series of sheet rock walls called "dust walls" were erected to block the construction areas from public access, as well as reduce dust and noise. The erection of dust walls is commonplace in the renovation of an open store. In this case, Superior erected the dust walls, enclosing approximately 20,000 to 30,000 square feet of store space; after renovation was completed in the enclosed area, the walls were removed, the renovated area was re-opened for business, and the dust walls were re-erected in the next designated construction area. Approximately 180,000 square feet of the Macon Rich's store was renovated in this fashion over approximately ten months. The record is that the dust walls were frequently erected adjacent to customer aisles.
For aesthetic reasons, Federated required that curtains cover the sheet rock dust walls visible to its customers. As John Stone, Federated's project manager, deposed, " ust as a decorative purpose to isolate the big white sheet rock from the public. It's not as ugly, we'll call it, as just the dust wall itself." Federated purchased the curtains and was responsible for directing their placement; the Rich's store management team had "the final say as to whether the curtains go up" and where. Stone testified that he did not know who physically hung the curtains; he just instructed that the curtains be hung and where.
Orion, as contractor, was responsible for ensuring that the curtains were hung in front of the dust walls as Federated directed. To that end, free-standing metal poles in metal bases were placed along the outside of the sheet rock expanse to be covered; metal rods connected the tops of the poles, and floor-length curtains were suspended from the top of the connecting rods. The poles and their metal bases were hidden behind the curtains; however, approximately four inches of each metal base, 1/4 inch in height, stuck out from beneath the floor-length curtains.
With regard to hanging the curtains, Orion's construction superintendent, Charles McCrary, testified that, "Normally I did it myself, I didn't just get anybody to do it, I did it myself most usually if [Superior] didn't do it." He deposed that hanging the curtains in front of the sheet rock was a "one man job "; that it's "real easy"; and that he did it by himself "all the time."
Superior's project supervisor testified that Superior was never asked to hang the curtains. He deposed that Superior was not involved with the curtains at all; and
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