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BELL SOUTH v. WIDNER12/3/1997
Pursuant to the grant of an interlocutory appeal, Bell South Telecommunications, Inc., challenges the denial of its motion for summary judgment in an action brought against Bell South by Betrice and William O. Widner. Mrs. Widner sued Bell South for damages arising from her personal injuries and Mr. Widner sued for his loss of consortium after their car fell into a trench which had been dug across a public road to lay a Bell South telephone cable. The Widners contend they were driving at about 10 to 15 miles per hour when their car came to a sudden stop because the trench collapsed under them. Mrs. Widner alleges that she was injured because of the sudden stop.
Bell South contracted with Brookins, Inc., to lay telephone cable across a county road in Miller County, Georgia. The contract specified that a trench be dug in which to lay the telephone cable and that the ditch be filled to return the road to its proper pre-construction condition as a public road. Brookins then contracted with Pro Grassing & Grading, Inc., to perform the actual work.
Brookins' subcontract with Pro Grassing required Pro Grassing to complete the work specified by Bell South at an agreed upon price to be paid by Brookins. In the subcontract, Brookins did not retain the right to control or supervise the work of Pro Grassing and did not exercise control or supervision over the time, manner, or method in which Pro Grassing performed the work. Pro Grassing used its own equipment and employees to perform the work. Pro Grassing billed Brookins directly by invoice and Brookins paid Pro Grassing without deductions for payroll or income taxes or other matters. None of Pro Grassing's employees were carried on Brookins' books as employees of Brookins. Although Pro Grassing did work for other companies as well as Brookins, Bell South had no direct contractual relationship with Pro Grassing in this matter.
Initially the Widners filed suit against Bell South and Brookins and Bell South answered and filed a third-party complaint against Pro Grassing. This first action was dismissed, however, and a timely renewal action filed subsequently. In the renewal action, Bell South
moved for summary judgment contending that Bell South was not liable to the Widners for the negligence of its independent contractor. After this motion was denied because the trial court found that material issues of fact remained for trial, the trial court granted Bell South a certificate of immediate review, and upon application to this court, Bell South was granted an interlocutory appeal. Held:
1. The general rule is that an employer is generally not "responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer." OCGA § 51-2-4. The standards to be considered when determining whether an employer is liable for the negligence of a contractor are set out in OCGA § 51-2-5. Although this list is not exclusive (Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93-94 (327 S.E.2d 188)), the only provision realistically at issue is (5): "If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference."
When the contract between Bell South and Brookins is construed properly, it establishes that Brookins was an independent contractor and not an employee of Bell South. None of the traditional measures through which improper control is maintained are present (see OCGA § 51-2-5), and the contract provides for Brookins to have indepen
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