# Opposition Brief — Jenkins v. Georgia Power Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0363%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1007 ## Text C No. 88-723 IN THE Supreme Court of the United States OCTOBER TERM, 1988 MARK JENKINS, Petitioner, v. 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 i 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? il 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 EES OF RIEIIEE BEEP cnvsasencsncscosecsssccncesencssccccosces LIST OF AFFILIATED CORPORATIONG............... aaa senenenpuvadedudesenasinbautsnedacees 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- TRE TED © PRRRIE FEES ccccrccnseccssecccsccccnseoes IIT Talo iis sendtusbohasuniasadactesnedensésansmenstoouies iV 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 I a ealine ee i iisaictscdeiniconcinnicsanideeanacenintndeesioseetttsiineadiics 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, Wa 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 2 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 3 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 4 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.” 5 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, ROBERT L. PENNINGTON TROUTMAN, SANDERS, LOCKERMAN & ASHMORE 1400 Candler Building 127 Peachtree Street, N.E. Atlanta, Georgia 30303-1810 (404) 658-8000 Counsel for Respondent --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0363%3A2. Public record. Not legal advice.