Opposition Brief — Jenkins v. Georgia Power Co.

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No. 88-723

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

MARK JENKINS,

Petitioner,

GEORGIA POWER COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

ROBERT L. PENNINGTON

TROUTMAN, SANDERS,

LOCKERMAN & ASHMORE

1400 Candler —

127 Peachtree Street, N.E.

Atlanta, Georgia 30303-1810

(404) 658-8000

Counsel for Respondent

QUESTION PRESENTED

Is a question of state tort law involving no federal

constitutional issues which has been decided by the highest

state court in which a decision could be had as of right of

sufficient importance to warrant review by this Court?

LIST OF AFFILIATED CORPCQURATIONS

Respondent Georgia Power Compan®y is a wholly owned

subsidiary of The Southern Company, a j Publicly held corpo-

ration which is traded on the New York ¢ Stock Exchange.

TABLE OF CONTENTS

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LIST OF AFFILIATED CORPORATIONG...............

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REASONS WHY THE PETITION SHOULD BE

TERE SIRS eRe ON Oe ee a

I. THE DISTRICT AND CIRCUIT COURTS

CORRECTLY HELD THAT ELECTRICITY

IS NOT AN ULTRA-HAZARDOUS SUB-

STANCE UNDER GEORGIA LAW................

Il. THIS COURT SHOULD NOT CERTIFY OR

REMAND WITH DIRECTIONS TO CERTI-

FY BECAUSE THE COURTS BELOW AP-

PLIED AND FOLLOWED CLEAR CON-

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TABLE OF AUTHORITIES

CASES:

Allen v. Cooper, 145 Ga. App. 555, 244 S.E.2d 98

Gira WU dinkchasasbiuasensasaasedeechabacenistaranitastaatenanemmanee eit

Community Gas Co. v. Williams, 87 Ga. App. 68, 73

ane tee

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)..............

Georgia Power Co. v. Gillespie, 49 Ga. App. 78, 176

a Fe I ininiiccinctes masiosdinenacabsanansasiethdenenasennieiinsios

Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183

Fe RT EDA Rees Roel SA A SR ee

Haring v. Prosise, 462 U.S. 306 (1983) ........0... cee.

Hodge v. United States, 310 F. Supp. 1090 (M.D. Ga.

1969), aff'd, 424 F.2d 545 (Sth Cir. 1979)...

Horn v. C.L. Osborn Contracting Co., 423 F. Supp.

801 (M.D. Ga. 1976), rev'd, 591 F.2d 318 (Sth Cir.

Fi nssssuntoicscisaineseddsacentanina bacuseaabiaatedand deisel

Jenkins v. Georgia Power Co., 668 F. Supp. 1574

(N.D. Ga. 1987), rev'd, 849 F.2d 507 (11th Cir.

PUIED icincheccbtsneiciatsnabtesanpimeicedtaddmeanitgemeiaaalantscacsdies

Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940)

West v. American T&T Co., 311 U.S. 223 (1940).......

STATUTES AND CONSTITUTIONAL

PROVISIONS:

Article VI, Section V, Paragraph III of the Georgia

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Be as Se danacesiecsnndinninlomscobnccnceesbboaueseaniaoesionen

MISCELLANEOUS:

Rule 37(a), Georgia Supreme Court.......................00002

Page

2,3,4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

MARK JENKINS,

Petitioner,

GEORGIA POWER COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent Georgia Power Company respectfully

requests that this Court deny the petition for writ of certiorari,

seeking review of the Eleventh Circuit’s opinion in this case.

That opinion is reported at 849 F.2d 507 (11th Cir. 1988).

JURISDICTION

Invoking federal jurisdiction based upon diversity of

citizenship pursuant to 28 U.S.C. § 1332, the petitioner

brought this suit alleging negligence in connection with a

personal injury in the Northern District of Georgia, Atlanta

Division. The disposition of this matter in the Northern

District and the Eleventh Circuit is set forth in the petition

for a writ of certiorari.

The jurisdiction of this Court to review the judgment of

the Eleventh Circuit is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

Respondent respectfully directs the Court’s attention to

the statement of the facts in the Eleventh Circuit's opinion,

which it incorporates herein by reference, for an accurate

statement of all of the facts material to consideration of the

question presented.

REASONS WHY THE PETITION SHOULD BE DENIED

I. THE DISTRICT AND CIRCUIT COURTS COR-

RECTLY HELD THAT ELECTRICITY IS NOT

AN ULTRA-HAZARDOUS SUBSTANCE UNDER

GEORGIA LAW.

The sole Question Presented in the petition (p. 1) ts

whether the Eleventh Circuit so erred in its application of

Georgia law that this Court’s supervisory jurisdiction is called

for. The answer to this question is no, because the Eleventh

Circuit properly followed and applied state law in this diver-

sity case in accordance with the principle of Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938).

The courts below recognized that Georgia tort law holds

that electricity is not so ultra-hazardous a substance as to

automatically implicate the inherently dangerous work doc-

trine. In Georgia Power Co. v. Gillespie, 49 Ga. App. 788,

794, 176 S.E. 786 (1934), the Georgia Court of Appeals held,

“[wje are unwilling to hold that electricity is a substance so

inherently dangerous that a power company may not contract

for the building of power lines with an independent contractor

and absolve itself from liability for an injury which occurs

solely because of the negligence of such independent contrac-

tor in the doing of the work.” The courts below correctly

applied this principle to reject petitioner’s argument that

respondent is liable for the negligence of petitioner's indepen-

dent contractor employer. Jenkins v. Georgia Power Co., 668

F. Supp. 1574, 1577 n. 1 (N.D. Ga. 1987), rev'd on other

grounds, 849 F.2d 507, 509 (11th Cir. 1988).

Contrary to Petitioner’s representation to this Court,

Gillespie is not an aberration standing in splendid isolation

but rather has been cited and followed by both Georgia courts

and federal courts applying Georgia law. F.g., Horn v. C. L.

Osborn Contracting Co., 423 F. Supp. 801, 809 (M.D. Ga.

1976), rev'd on other grounds, 591 F.2d 318 (Sth Cir. 1979);

Hodge v. United States, 310 F. Supp. 1090, 1101 (M.D. Ga.

1969), aff'd, 424 F.2d 545 (Sth Cir. 1970); Allen v. Cooper,

145 Ga. App. 555, 556, 244 S.E.2d 98 (1978); Georgia Power

Co. v. Maxwell, 52 Ga. App. 430, 434, 183 S.E. 654 (1935).

The case cited by Petitioner as redefining the Gillespie doc-

trine, Community Gas Co. v. Williams, 87 Ga. App. 68, 73

S.E.2d 119 (1952), merely distinguishes Gillespie and does

not overrule it. Since Williams was decided, the courts have

continued to cite Gillespie as support for the principle that

an employer is not liable for the torts of his independent

contractor where work which is not inherently dangerous of

itself becomes dangerous when performed negligently. E.g.,

Horn vy. C. L. Osborn, supra; Hodge v. United States, supra;

Allen v. Cooper, supra.

There is, accordingly, no basis for the exercise of this

Court's extraordinary power of supervision, since the decision

below follows clear precedent and this Court generally “‘ac-

cept[s] a reasonable construction of state law by the court of

appeals.” Haring v. Prosise, 462 U.S. 306, 314 n. 8 (1983).

Respondent respectfully submits that this is not a case requir-

ing reconsideration on the merits.

Lea QxnNHaEP

Il. THIS COURT SHOULD NOT CERTIFY OR

REMAND WITH DIRECTIONS TO CERTIFY BE-

CAUSE THE COURTS BELOW APPLIED AND FOL-

LOWED CLEAR CONTROLLING PRECEDENT.

Federal courts are bound by the decisions of a state’s

intermediate appellate court unless there is persuasive evi-

dence that the highest state court would rule otherwise. E.g.,

Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940); West

v. American T&T Co., 311 U.S. 223 (1940). The decision of

the Georgia Court of Appeals in Gillespie is a controlling

precedent by an appellate court which is binding on all

Georgia courts except the Supreme Court of Georgia. Article

VI, Section V, Paragraph III of the Georgia Constitution of

1983.' Because a clear controlling decision by the Georgia

Court of Appeals exists, there is no basis for certification

under the plain language of Georgia Supreme Court Rule

37(a). See, Petition for Certiorari at 4-5.

Petitioner’s assertion that “[t]he authority of Gillespie is

undercut by Williams, leaving no clear controlling precedent”

conveniently ignores all those cases following Gillespie since

Williams was decided. Petition for Certiorari at 5. As shown

above, Gillespie is good law which the Georgia Court of

Appeals, the Georgia district courts, the Fifth Circuit Court

of Appeals, and the Eleventh Circuit Court of Appeals con-

tinue to cite and follow. Hence, no basis exists for certifying

the question posed by petitioner to the Georgia Supreme

Court inasmuch as a line of authority citing Gillespie has

considered and decided the issue adversely to petitioner.

'The Georgia Constitution of 1983 provides in relevant part as

follows: “The Court of Appeals shall be a court of review and shall exercise

appellate and certiorari jurisdiction in all cases not reserved to the Supreme

Court or conferred on other courts by law. The decisions of the Court of

Appeals insofar as not in conflict with those of the Supreme Court shall

bind all courts except the Supreme Court as precedent.”

CONCLUSION

The issue raised by the instant petition presents a ques-

tion of state tort law which is not of sufficient importance

beyond the litigants themselves to warrant review by this

Court. The courts below followed an unbroken line of

authority and correctly rejected petitioner’s argument that

his work was inherently dangerous as contrary to the law of

Georgia. For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,