Petition for Writ of Certiorari — Preston v. Georgia Power Co.
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Supreme Court. U.S.
FILED
98 36 JUL 301998
ASIN ka dl Sea
orn re nro — OFFICE GF. He. PLERK
In The
Supreme Court of the United States
October Term, 1997
ROY K. PRESTON,
Petitioner,
GEORGIA POWER COMPANY,
Respondent.
2 —
On Petition For Writ Of Certiorari
To The Court Of Appeals Of Eaereress
-——-——— @ —_ —__ -—__—_—-
PETITION FOR WRIT OF CERTIORARI
———______—_—_—__—— @ —— _—________
Davip A. Wesster, Eso.
300 Hurt Building
Atlanta, Georgia 30303-2914
(404) 681-3070
Counsel of Record
Harpy Grecory, Jr., Eso.
P.O. Drawer 5230
Cordele, Georgia 31015
(912) 273-7150
Joun M. Hyatt, Esa.
_ocuite 201 Trust Building
“545 North Mc Donough Street
Decatur, Georgia 30030
(404) 378-3635
Counsel for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) M2-2831
QUESTIONS PRESENTED
|. Whether inchoate interests may amount to prop-
erty protected by due process.
2. Whether inchoate rights of action in tort may
amount to property protected by due process
3. Whether the Constitution’s due process clauses
may require notice of physical conditions, imperceptible
to the public, which trigger requirements to act to protect
a future claim.
«
z. Whether the Georgia High-voltage Safety Act,
which denies tort recovery against a public utility absent
report from the public of intended work near high-ten-
sion lines, yet requires no prior notice to the public that a
line is dedicated to high-tension current, violates due
process.
ii
PARTIES BELOW _
In addition to Petitioner and Respondent Georgia
Power Company, two other parties appeared in the Geor-
gia Court of Appeals, whose judgment is sought to be
reviewed here. Ashland Chemical Company was an
appellee (concerning issues different from those affecting
Georgia Power Company). In a companion appeal heard
and decided together with this one, Insurance Company
of North America was an appellant against these same
two appellees.
TABLE OF CONTENTS
Page
Ee BE oy a rrr rr i
SP is oaks caves bbntsb dole we €abe Oks ii
MNO RE REE UCU ES oo va pwn vue wh cee ccceu. Vv
NE SIN ONG Fo wag ooo Ono 8 keke Seek ke l
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CONSTITUTIONAL AND STATUTORY PROVI-
EE ME EEE es cdi ok 4 eck vik eeesba caren. 2
PUN EE, MEY COUES CARES cy ccs ccc ccckcacccvcace 3
A. Petitioner’s Allegations and Claims for Relief .. 3
B. Proceedings Below and Petitioner’s Presenta-
On Of a Federal Question...........0....... 4
REASONS FOR GRANTING THE WRIT ........... 4
I. THIS CASE POSES SIGNIFICANT UNRE-
SOLVED ISSUES AS TO THE SCOPE OF PROP-
ERTY INTERESTS AND OF DUE PROCESS
(GOES ESURSS SES SSIS gis OIC oleae a eee 10
A. This Case Poses Significant Issues as to the
Scope of “Property Interests”.............. 10
1. This Court Has Not Resolved Whether
Inchoate Interests Are Protected ....... 10
2. This Court Should Decide If Unmateria-
lized Tort Claims Are Protected........ 12
B. This Case Poses Important Issues as to When
Due Process Requires Notice .............. 13
iV
TABLE OF CONTENTS - Continued
Page
C. Respondent’s Arguments Present No Reason
To Deny Certiorari.............-seeeeeeees 16
Il. THE RESULT OF THIS CASE WILL BE PRAC-
TICALLY IMPORTANT 6c. cccccet tec csaseeses 20
A. This Case Affects High Tension Line Victims
Throughout Georgia.............eeeeseeees 20
B. This Case Potentially Affects High Tension
Line Victime Generally... .c. cc csecccevasess 20
COPMCT A TSOGIN os vo rae inp Cesk bees e ee eaten RAS 22
gg iy | 3 + SPDT aE re eh bee ry SOO rey wiry la
TABLE OF AUTHORITIES
Page
CASES
Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974) ...4, 5
Board of Regents v. Roth, 408 U.S. 564 (1972)...... 10, 11
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ........... 15
Brown v. Fitzgerald, 177 Ga.App. 859, 341 S.E.2d
| SSRN ETE ele cbtente eae Stat allow nat Am nes MayHONE 20
Buckner v. Colquitt Elec. Mem. Corp., 206 Ga.App.
OF, Ba BEke OOP CRUE) ic ck ones coe Shr ts abe daS 20
Colquitt Elec. Mem. Corp. v. Cvengros, 165 Ga.App.
O02; ae Pe OF CRIM). oo hed ccs awicasecapekens 20
Finberg v. Sullivan, 634 F.2d 50 (3d Cir. 1980)........ 13
Goldsmith v. United States Bd. of Tax App., 270 U.S.
REE, SAOOES ibe SVE E ERA RP CLE RCSA Ly 1]
Gore S. Lapes, 419 US. 565 (1975). eis ei 13
Greenholtz v. Inmates of Nebraska Penal & Corr. Com-
SRON, TR AD BAIT Os ct aie's 6 6p eaedgd oo ee kee 1]
Gregory v. Pittsfield, 470 U.S. 1018 (1985) ............ 11
Habersham Elec. Mem. Corp. v. Dalton, 170 Ga.App.
SOS. Ole Stee Dit CIGOU iio cx hicks cee Soesaee 20
praninerty © ine, Ott US. 32 1S 18
Lamar Elec. Mem. Corp. v. Carroll, 89 Ga.App. 440,
FF WE OA. CEVOOE 4 ada e oir aeeacnueeeda 15,17, 20
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)
PREG LN MEATN GOWER LENSE SES LOST RCS ew ee es ik, Bay AD, 16
Lyng v. Payne, 47€ U.S. 926 (1986)................ 11, 16
Mallette v. County Employees’ Retirement Sys. II, 91
Pues Gree (Oh Sul SOPs 65d oe Meee wees hab eves 1]
Malvarez v. Georgia Power Co., 250 Ga. 568, 300
ne Be MERE SS eas els n sd bet xa 06 woe eae 2, 20
vi
TABLE OF AUTHORITIES - Continued
Page
Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 14
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1
Eg | ee ar rg Ee oS aaron Yer ry 13
Morrissey v. Brewer, 408 U.S 471 (1972)...........-.. 14
Mullane v. Central Hanover Bk. & Tr. Co., 339 U.S.
ce te RRREEE MAE UMSEREMEN TE SOO Se CIT 13, 18
Peer v. Griffeth, 445 U.S. 970 (1980)............--..--- 11
Santana v. Georgia Power Co., 269 Ga. 127,
Ree. CRE ic kee CRESS R EEL ACS Ra 8, 9, 20
Schware v. Board of Bar Examiners, 353 U.S. 232
CRS EN ok a Ria RRE OE Ee RES eT 11
Three Notch Elec. Mem. Corp. v. Bush, 190 Ga.App.
G58. S60 Sie: fe CREE ba ss a eee ea ekan 20
Walters v. National Ass'n of Radiation Survivors, 473
CFG SUS CRO OR ss oc ae hs ea Ree ea eee 1]
Willner v. Committe on Character & Fitness, 373 U.S.
RLS | ry PING OE Core FOr Sr ene par ee Le 11
CONSTITUTION AND STATUTES
United States Constitution, Amendment XIV ......... 2
ARS. § 40-360:448 (Arisotay oo ee 21
AS 18.60.685(b) (Alaska) See eee ee Bee Gee he ee ee ee ee wee 21
Ann. Code Md., Lab. & Empl., §§ 6-101 to 6-110.... 21
Ark. Code Ann. 8 LE-G-<SGSG): o35 cates ataco sess ees 21
Cal. Pub. Util. Code § G029 (West). ..0 csc cccatis 15
Code Ala. §§ 37-8-52 to 37-86-55 6... ccc ccc teense: 21
TABLE OF AUTHORITIES - Continued
Page
Code Va. §§ 59.1-406 to 59.1-414.................... 21
on. ev St. Ose a a eee 21
Health & Safety Code § 752.008 (Vernon) (Texas) ....21
ieee Se ma) (RUBMOD 5 os 65 eee ko kkk 21
M.G.L.A. ch. 166 § 21G(b) (Massachusetts) .......... 21
wma. Goode 1972 § 45-19-1909)... |. os os. 21
N.D. Cent. Code § 49-21.1-01 to 49-21.1-05.......... 21
NJSA §§ 34:6-47.1 to 34:6-47.9 (New POON sxc cxces 21
Pe Sd IOUNEES 1. os Ca nk ckk hike 21
N.Y. Lab. Law, § 202-h (McKinney) ................. 21
O.C.G.A. §§ 46-3-30 ff. (Georgia)................... eyo
JS een adh ye ans, SUNN OR EL eT Pe Peterman Me Te
Lat eeOEs TE MORIN ugianectepauneceet cio OS 18
La Rie i MARY Sindioncne sc pceinvwucbemnubes pian 2
ORAS WAR eae
Pais IMO Pe hci os $a k eh ees eee, 2, 19
na i AM RO as ie cas, pie daticv en rua me 21
aD W OAc, BR AT OF 26S oo or oso eee 21
Rev. St. Neb. §§ 48-436 to 48-442 ................... 21
SUCL § 49-32-17 (South Dakota);................... 21
T.C.A. §§ 68-103-101 to 68-103-108 (Tennessee)....... 21
Te SIP Sores ee cee 1
Vill
TABLE OF AUTHORITIES —- Continued
Page
Bit Ee Sk ) RM are pean nn were Pepe rey ire 1
Ltn 4 Oe F.. B BOO) bio ds ov ee bo bee ane vee es 21
VAD Se Gere GE oie ke kee cence 21
WS. § 37-3-305 (Wyoming) <...-....s0erers errr iiiee 21
OTHER AUTHORITY
National Electrical Safety Code... cc cock cetccccnwees 4
United States Supreme Court Rule 29.4.............. 2
OPINIONS BELOW
The opinion of the Georgia Court of Appeals (App.,
infra, 1a-20a), is reported at 227 Ga.App. 449, 489 S.E.2d
573 (1997). The following orders and dispositions are not
reported: the Georgia Supreme C urt’s denial of cer-
tiorari (App., infra, 21a); the Georgia Supreme Court’s
denial of reconsideration (App., infra, 22a); the final order
of the trial court granting summary judgment, from
which this appeal was taken (App., infra, 23a-35a); the
earlier order of the trial court denying Petitioner’s
motion to strike Georgia Power Company’s defenses
(App., infra, 36a-41a); the order of the trial court certify-
ing this preliminary order for immediate appeal (App.,
infra, 46a); the Georgia Supreme Court’s denial of inter-
locutory review (App., infra, 47a); and the Georgia
Supreme Court’s order transferring Petitioner’s appeal
from summary judgment to the Georgia Court of Appeals
(App., infra, 52a).
JURISDICTION
The Supreme Court of Georgia, that state’s highest
court, denied certiorari on February 20, 1998. (App., infra,
21a) That court denied a motion to reconsider on April 1,
1998. (App., infra, 22a) This Court has jurisdiction to
review the judgment of the Court of Appeals of Georgia
pursuant to 28 U.S.C. § 1257(a).
Petitioner notes that 28 U.S.C. § 2403(b) may apply to
this proceeding. The State of Georgia has received no
previous notice. The notifications required by this Court's
9?
<
Rule 29.4 have been effected by service of this Petition
upon the Attorney General of the State of Georgia.
e
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution, Amendment XIV:
. nor shall any State deprive any person
of . . . property, without due process of law.”
Relevant provisions of the Georgia High-voltage
Safety Act (the “Act”), O.C.G.A. §§ 46-3-30 ff., are set out
in a statutory appendix to this Petition (App., infra,
55a-59a ).
In summary, the Act requires at least 72 hours’
advance report of intended work under or near a high
tension line, to a “utilities protection center.” O.C.G.A.
§ 46-3-34(b). The Act imposes the advance reporting
requirement upon both a contractor or other employer,
and an individual employee at work. O.C.G.A.
§ 46-3-32(3).
Among other penalties, the statute traditionally has
made failure to report work a ground for indemnifying
the utility for any resulting tort claims. O.C.G.A.
§ 46-3-40(b). Until 1992, the utility remained subject to
tort liability despite lack of advance report of the work, if
the utility was negligent in maintaining the line. Malvarez
v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983). In
1992, however, the Georgia General Assembly added the
following penalty: “The owner or operator of high-volt-
age lines shall not be liable for damage or loss to person
or property resulting from work within ten feet of high-
voltage lines unless notice has been given. ... ” O.C.G.A.
§ 46-3-39(a). The Act defines a high-voltage line as one
carrying more than 750 volts. O.C.G.A. § 46-3-32(1). The
Act does not require the utility to post notice that any
given line carries more than 750 volts.
— —?
STATEMENT OF THE CASE
A. Petitioner’s Allegations and Claims for Relief.
Petitioner Preston lost both feet, his left hand and the
use of his right hand when he was severely shocked by
current flowing through high-tension lines operated by
Respondent Georgia Power Company (“Georgia Power”).
Preston worked for a temporary labor service, and was
assigned to various needed manual labor with Ashland
Chemical Company. Ashland operated chemical-laden
railroad cars on a spur line which paralleled Georgia
Power’s high-tension wires.
The interior of Ashland’s cars regularly became
fouled with chemical deposits. Ashland formerly sent
workers into such cars to scrape down the residue. When
OSHA determined this was a health hazard, Ashland
developed the alternative of scrapers attached to very
long poles.
One day in May of 1993, Petitioner Preston was
assigned for the first time to cleaning chemical-encrusted
cars on the railroad siding paralleling Respondent’s high-
voltage line. He was given no instruction on how to clean
in order to avoid danger. The handie of Preston's
ee
“spader” touched Georgia Power's high-tension line as
he worked.
As electrical engineer, appearing as an expert witness
for Petitioner, deposed that Georgia Power’s high-tension
line was closer to the car Preston was cleaning than is
permitted by the National Electrical Safety Code (an
industry-wide standard adopted by the Institute of Elec-
trical and Electronics Engineers, Inc.) and other relevant
safety standards.
B. Proceedings Below and Petitioner’s Presenta-
tion of a Federal Question.
Petitioner presented his federal due process claims to
the highest court in Georgia, the Supreme Court. That
Court’s denial of certiorari amounts to a denial of his
constitutional claims. In fact, Petitioner brought those
claims to the Supreme Court of Georgia not once but
thrice.
The Supreme Court of Georgia, acting as a whole, has
now certified that Petitioner presented his federal due
process issues tc that court, and that it decided those
issues against him. (App., infra, 62a) That court’s order
satisfies this Court’s requirements for such a certificate,
by verifying that Petitioner raised his issues in the
Supreme Court of Georgia, and that they were resolved
against him. Allenberg Cotton Co. v. Pittman, 419 U.S. 20,
22 (1974). Petitioner will forward a certified copy of that 3
court’s Certificate to the Clerk of this Court.
Petitioner requested the Certificate because the basis
for the Georgia Supreme Court's actions is not explicit,
1S 3)
and even the Georgia Court of Appeals did not address
directly the constitutional issue raised here. Lest there be
any “remaining doubts,” id. at 23 n.2, Petitioner will
describe the procedures below so that this Court may
form its own judgment as to his presentation of the
issues, and their resolution against him.
Petitioner sued Georgia Power and also Ashland
(which was eventually treated as a statutory employer,
exempted from tort liability). He alleged that Georgia
Power was negligent when it placed or maintained a
dangerous instrumentality, a high tension electric line,
too close to the railroad siding where he worked.
Respondent’s answer claimed a defense under Geor-
gia’s High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq
rhat statute requires advance report to Georgia Power of
any work within ten feet of a high-tension line (defined
as a wire carrying more than 750 volts), absent which the
utility will escape tort liability. Petitioner filed h prompt
motion to strike this defense, showing that the statute
violated federal constitutional guarantees. (App., infra,
42a-43a) In particular, his brief argued that the reporting
requirement imposed on him violated due process, in that
he had no prior notice that the wire near which he was
assigned work was a “high-voltage line.” (App., infra,
44a-45a)
The trial court rejected Petitioner’s constitutional
challenge and denied his motion to strike (App., infra,
36a-41a), but granted a certificate of immediate review.
(App., infra, 46a) The Supreme Court of Georgia denied
Petitioner’s ensuing application for interlocutory review.
(App., infra, 47a)
Georgia Power later moved for summary judgment,
asserting only the bar of the High-voltage Safety Act.
Petitioner’s response showed yet again the statute’s
unconstitutionality. The trial court granted summary
judgment on a new and different ground, ruling that
nothing in the record supported Petitioner's burden to
show proximate causation. (App., infra, 23a-35a)
Recognizing the ever-present potential for appellate
affirmance of summary judgment on an alternative
ground (the High-voltage Safety Act), Petitioner appealed
to the Supreme Court of Georgia, which has exclusive
jurisdiction over appeals raising constitutional issues. Ga.
Const. 1983, Art. 6, Sec. 6, Par. 2(1). Petitioner asserted
jurisdiction in the Supreme Court because a ruling based
on the Act necessarily would draw into question its con-
stitutionality. Preston accordingly enumerated both the
grant of summary judgment to Respondent and the
denial of his motion to strike Georgia Power’s defense as
error (App., infra, 51a), and briefed the federal constitu-
tional issues in the Georgia Supreme Court (App., infra,
48a-50a), as did Georgia Power.
The Supreme Court nonetheless transferred Peti-
tioner’s appeal to the Court of Appeals, after determining
that “the issue on which the trial court granted summary
judgment in these cases does not fall within the jurisdic-
tion of this Court” (App., infra, 52a}, apparently because
the trial court’s stated (proximate causation) basis for
summary judgment did not implicate Petitioner’s consti--
tutional due process issues. Georgia Power nevertheless
continued to assert the High-voltage Safety Act as an
alternative ground for affirming summary judgment.
The Court of Appeals declined to adopt the trial
court’s proximate cause reasoning. Instead, that court
affirmed only on the alternative grounds.! It ruled — as
Georgia Power had insisted ever since issue was first
joined in this case — that Preston’s claims were barred by
the High-voltage Safety Act. Preston v. Georgia Power Co.
et al., 227 Ga.App. 449, 489 S.E.2d 573 (1997) (App., infra,
la-20a). At the same time, however, the Court of Appeals
declined to rule on Preston’s constantly-pressed constitu-
tional challenge. That court held that it lacked subject
matter jurisdiction to pass on constitutional issues, but
also “noted” that the challenge was somehow “irrele-
vant.” (App., infra, 8a) (Petitioner will show in his Rea-
sons for Granting the Writ, infra, that the due process
issues are anything but irrelevant.)
Preston sought constitutional review in the Supreme
Court of Georgia for a third time, this time on certiorari.
His Petition made clear that the Georgia Court of Appeals
had invoked the bar of the High-voltage Safety Act, that
that Act was unconstitutional, that its unconstitutional
features were in no way “irrelevant,” and that he sought
the Georgia Supreme Court's aid in deciding the constitu-
tional issues. (App., infra, 53a-54a) Georgia Power like-
wise briefed the constitutional issues.
The Supreme Court of Georgia denied certiorari on
February 28, 1998, in a one-paragraph order expressing
no reasons for its denial. (App., infra, 21a) Petitioner
moved for reconsideration of the denial of certiorari. That
' Thus, for purposes of this Petition, the record as well as
Preston's allegations supports each element of his tort claim,
including injury, negligence and proximate causation.
court denied Petitioner’s motion to reconsider by order of
April 1, 1998. (App., infra, 22a)
This process, in addition to that court’s Certificate,
shows that the Georgia Supreme Court necessarily con-
sidered and rejected Petitioner’s constitutional argu-
ments, even though that court never addressed them
explicitly. The issues were squarely presented to the
Georgia Supreme Court by Preston’s Application for
interlocutory review, by his appeal brief (before transfer
to the Georgia Court of Appeals) and by his Petition for
Certiorari. That Petition culminated a long process in
which Georgia Power continually asserted the statutory
bar of the High-voltage Safety Act, and Preston just as
assiduously asserted that Georgia Power could not
invoke the Act to bar his claim because the Act was
unconstitutional. Thus the history of this action is quite
enough to show that the Supreme Court of Georgia con-
sidered the due process issues and decided them against
Petitioner.
Uniquely in this case, another powerful factor shows
that the Georgia Supreme Court necessarily was pre-
sented with and rejected Petitioner’s constitutional con-
cerns. On February 23, within a week of denying
Preston's Petition for Certiorari, that court also decided
Santana v. Georgia Power Co., 269 Ga. > ae 2” BRE
(1998). That decision resolved constitutional issues
closely parallel to those raised by Preston. (See excerpt,
App., infra, 60a-61a) (Preston also filed an amicus brief
supporting Santana’s constitutional challenges to the
High-\ oltage Safety Act.)
os DomnaSee sp
Moreover, the timing of the two dispositions suggests
that the decision in Santana was the reason for denial of
certiorari in Preston’s case. The Georgia Supreme Court
resolved substantially similar issues, virtually simul-
taneously with its disposition of this case, in an appeal in
which Preston participated (albeit not as a party). Having
resolved the issues for Santana, the court apparently
deemed that it had resolved them for Preston as well.
(The court’s Certificate of presentation and decision in
this case, App., infra, 62a, expressly recites Santana.)
Thus the Georgia Supreme Court has certified that
Petitioner raised and it rejected the due process issues
here presented, and a review of the progress of this case
shows the same.
REASONS FOR GRANTING THE WRIT
This Court should grant review for two reasons.
First, this case raises substantial issues, unresolved in this
Court, as to both the scope of protected “property” for
due process purposes and the scope of due process notice
rights. Second, Petitioner’s loss of his potential tort claim,
for lack of notice of imperceptible high voltage current
which triggered statutory responsibilities on his part,
raises significant practical concerns for this and many
other cases.
Petitioner was deprived of the opportunity to pursue
any tort remedy because he was not informed that the
wire around which he worked was a high tension wire.
There was no way he could know what current the wire
carried by looking at it; he needed to be told. Reasonable
10
public notice was easily afforded; all the statute had to
say was that utilities should post high-voltage notices on
poles that support high tension lines. Yet the Georgia
General Assembly omitted any such requirement, while
requiring Preston nevertheless to report his work in order
to protect his rights. Thus the immediate issue is whether
due process may require notice of imperceptible facts
whose existence demands action in order to protect a
potential future claim.
Petitioner freely acknowledges that the prior deci-
sions of this Court do not go far enough to require notice
in this situation. The gaps between those prior opinions
and this case are an important reason why this Court
should grant certiorari.
I. THIS CASE POSES SIGNIFICANT UNRESOLVED
ISSUES AS TO THE SCOPE OF PROPERTY INTER-
ESTS AND OF DUE PROCESS NOTICE.
A. This Case Poses Significant Issues as to the
Scope of “Property Interests.”
1. This Court Has Not Resolved Whether
Inchoate Interests Are Protected.
In Board of Regents v. Roth, 408 U.S. 564 (1972), this
Court declared in obiter dicta: “The Fourteenth Amend-
ment’s procedural protection of property is a safeguard of
the security of interests that a person has already
acquired in specific benefits.” Id. at 576. These dicta from
Roth imply that only persons with present interests in
property may assert due process rights. Under this
approach, a person who claims a protected stake in a
11
benefit, but lacks a present interest, would lack a prop-
erty right. Yet other portions of the Roth opinion, id. at
577, and other decisions of this Court challenge the con-
clusion implicit in the quoted Roth dicta. This Petition
asks whether due process should not extend to certain
interests not yet acquired.
This Court’s older decisions appear to find that
applicants for government grants, licenses or other privi-
leges have constitutionally protected property interests,
specifically in applications for professional licensing.
Willner v. Committee oi Character & Fitness, 373 U.S. 96,
102 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232,
239 (1957); Goldsmith v. United States Bd. of Tax App., 270
U.S. 117, 123 (1926). Similarly, this Court has held that
due process may protect a parole applicant. Greenholtz v.
Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 12
(1979) (liberty interest). Yet in more recent cases, this
Court has characterized as undecided the question
whether applicants for government grants have a pro-
tected stake in their applications. Lyng v. Payne, 476 U.S.
926, 942 (1986); Walters v. National Ass'n of Radiation Sur-
vivors, 473 U.S. 305, 320 n.8 (1985); see also Gregory v.
Pittsfield, 470 U.S. 1018, 1021 (1985) (O’Connor, J.); Peer v.
Griffeth, 445 U.S. 970, 970-71 (1980) (Rehnquist, J.).
Meanwhile, the lower courts almost universally hold
that applicants may have a protected stake, so long as
eligibility follows as an inexorable result from satisfaction
of articulated rules. An excellent catalogue of decisions,
not reproduced here in the interest of time and space, is
found in Mallette v. County Employees’ Retirement Sys. II,
91 F.3d 630, 638-39 (4th Cir. 1996).
12
This Court should grant certiorari and confirm the
many decisions which hold that no present interest in a
benefit is required, to assert a constitutionally protected
property interest.
2. This Court Should Decide If Unmaterialized
Tort Claims Are Protected.
This Court’s decision unmistakably protect personal
injury claims as property, once all their elements have
arisen. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429
(1982) (disability discrimination claim). Preston’s claim
was incomplete, however, because he had not been
injured at the time protective notice to him was necessary
in order to protect his rights. Thus this case poses the
important question whether a property interest may arise
from a tort claim which is as yet unrealized. (This case
differs from the benefit-application cases as well, since in
those cases all facts supporting eligibility normally will
exist at the time of application.)
The Court should grant review to decide whether
these are distinctions without a difference. Petitioner lost
his tort claim and therefore his entire future remedial
interest. It matters not whether his claim was fully
matured at the time he was injured and shortly before,
when he was statutorily required to report in order to
protect his claim. Regardless of the timing, he has lost his
remedy for lack of notice which would have apprised him
of the necessity for action. Regardless of the sequence,
Preston’s future stake in a tort remedy should prompt
this Court to find a property interest.
13
B. This Case Poses Important Issues as to When
Due Process Requires Notice.
This Court has stated in dicta that the reason for
requiring notice is to permit preparation for an impend-
ing hearing. Memphis Light, Gas & Water Div. v. Craft, 436
U.S. 1, 14 (1978). Thus the dicta from Craft suggest that
due process notice serves only purposes related to an
impending or available hearing.2 Comparable dicta in
Logan v. Zimmerman Brush Co., however, open up the
possibility that due process notice may serve much
broader purposes, starting well before a hearing is in the
picture: “[T]he Due Process Clauses protect civil litigants
who seek recourse in the courts . . . as plaintiffs attempt-
ing to redress grievances.” 455 U.S. at 429. Thus where
appropriate, due process might provide procedural pro-
tections well before a claim materializes. Due process, far
from being limited to the context of actual or currently
exercisable hearings, should protect claims procedurally
over the long term.
? Consistent with these dicta, this Court’s opinions thus far
appear to require due process notice in the form of (1) advice of
any official threat to existing property interests, Mullane v.
Central Hanover Bk. & Tr. Co., 339 U.S. 306 (1950); (2) minimally
necessary information as to what procedural steps the notice
recipient may or must utilize to protect those interests, and how,
Craft, 436 U.S. at 14-15; and (3) in case of a proposed
deprivation, a statement of reason(s), Goss v. Lopez, 419 U.S. 565,
580 (1975). Some of the lower courts have added, where
appropriate, (4) advisories as to the most important substantive
rights the notice recipient has available in order to protect those
interests, see, e.g., Finberg v. Sullivan, 634 F.2d 50, 61-62 (3d Cir.
1980) (en banc). This case asks whether due process occasionally
may require a different sort of notice.
14
The procedural demands of our constitution are not
fixed and immutable; “due process is flexible and calls
for such procedural protections as the particular situation
demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
The extent of due process procedures depends upon:
First, the private interest that will be affected by
the official action; second, the risk of an erro-
neous deprivation of such interest through the
procedures used, and the probable value, if any,
of additional or substitute procedural safe-
guards; and finally, the Government’s interest,
including the function involved and the fiscal
and administrative burdens that the additional
or substitute procedural requirement would
entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). This Petition
asks whether due process notice requirements may flex to
protect future interests in property, without regard to
whether any hearing is either pending or subject to
immediate demand.
Applying the Mathews v. Eldridge factors, this Court
should require notice. Petitioner’s lack of notice prior to
his injury is as important as lack of notice later, in the
context of any hearing or prospective hearing. Because
Preston was not informed that the wire near which he
worked was a high voltage line, he did not know he had
to report his work. Because he did not report his work, he
lost any tort claim.
The risk of erroneous deprivation is palpable. The
Georgia Court of Appeals made clear the value of notice
to workers like Preston, in a similar case: “It is a matter of
common knowledge that a great many wires used, for
| |
15
instance, in telephonic communication are not charged
with electric current of [significant] voltage. . . . Merely
seeing the wires strung over the property would not put
the plaintiff on notice of a dangerous condition.” Lamar
Elec. Mem. Corp. v. Carroll, 89 Ga.App. 440, 454, 79 S.E.2d
832, 841 (1953).
Notice was easily feasible. All Petitioner had to do
was post “high-volte,e” tags on poles supporting lines
carrying high-voltage current. All the statute had to do
was require such notice. California has shown the way.
That state - which does not even have a High-voltage
Safety Act — requires electric utilities to give public notice
of high tension wires. The utility shall either used color-
coded paint or attach signs saying “high voltage.” Cal.
Pub. Util. Code § 8029 (West). Given the consequences in
Georgia of losing his tort claim, Petitioner should have
been afforded such notice as a matter of due process.
Finally, for clarity’s sake, Petitioner distinguishes two
superficially similar yet quite different potential due pro-
cess challenges which he does not assert. First, he does
not claim that the act is vague, for failure to afford notice
of its substantive requirements. Cf. Broadrick v. Oklahoma,
413 U.S. 601 (1973). Preston protests lack of notice to him
of physical conditions requiring him to act.
Moreover, Petitioner does not seek to roll back the
terms of the Georgia High-voltage Safety Act to those in
effect prior to 1992. This Court has held that, consistent
with due process, “the State remains free to create sub-
stantive defenses or immunities for use in adjudication -
or to eliminate its statutorily created causes of action
altogether.” Logan v. Zimmerman Brush Co., 455 U.S. at
16
432. Despite this power to abolish claims, the state may
not impose unreasonable procedural hurdles. Id. at 433.
Petitioner does not contest adoption of the restrictive
1992 amendments. He protests only the omission of
appropriate notice protections.
This Court should grant certiorari to consider the
scope of required due process notice.
C. Respondent's Arguments Present No Reason To
Deny Certiorari.
Respondent undoubtedly will advance two principal
arguments in an attempt to suggest that this case does not
present significant due process issues, and does not
deserve this Court’s attention. First, Georgia Power
argues that this statute on its face gives adequate notice
of Petitioner’s duty to report intended work (and that all
citizens are charged with knowledge of the law and pre-
sumed to know the law). But those arguments do not
avoid the due process issues. A statute standing alone is
constitutionally adequate notice only as to its legal pre-
scription and any facts it conveys. Where a statute or
regulation on its face is asserted as the basis for due
process compliance, the test is whether its publication
provides sufficient facts to enable the reader to determine
his or her rights or duties. See, e.g., Lyng v. Payne, 476 U.S.
at 942-43 (due process notice requirements satisfied
where a disaster relief program and its terms were pub-
lished in the Federal Register).
Here, the statute standing alone cannot possibly con-
vey all necessary facts to the public. Reading the statute
does not tell the reader of the statute when he or she is
17
encountering a high voltage line in the real world. The
statute infosms the public only of its abstract respon-
sibilities to seport, including the high-voltage conditions
under which that responsibility may arise.
Respondent argues that the statute puts the reader on
inquiry notice, so that he or she should affirmatively find
out whether any line carries high voltage. But due pro-
cess ordinarily is violated when statutes are construed as
creating inquiry notice. For example, a statute creating a
responsibility to answer a court complaint, although it
states the conditions under which an answer must be
filed, does not put a defendant on inquiry notice to find
out whether a complaint has been filed. A central pur-
pose of due process is to assure that the property interest
holder need not inquire whether that interest is threat-
ened, but rather will be told when a threat arises. Because
the presence of wires was insufficient to put Petitioner on
notice of risk even to his own safety, Lamar Elec. Mem.
Corp. v. Carroll, supra, it is hard to see how those same
wires standing alone could put him on notice of danger to
his future tort claim.
A second Georgia Power argument was erroneously
credited by the Georgia Court of Appeals in this case.
That court, even though it lacked subject matter jurisdic-
tion to rule on Petitioner’s constitutional claim, opined in
dictum that notice to Preston “appears irrelevant.”
According to that court, Petitioner’s statutory employer
“had actual notice of the high voltage. In light of the
evidence that Ashland was required to give notice to
Georgia Power and was aware of the high voltage carried
by the power lines, Preston’s lack of knowledge is imma-
terial to the application of OCGA § 46-3-39(a).” (App.,
18
infra, 8a). The Court of Appeals’ analysis is misplaced.
Petitioner’s lack of knowledge is relevant in the extreme,
because he had an independent statutory responsibility to
report intended work in order to save his tort claim,
regardless of what Ashland did or did not do. The statute
expressly defined both Petitioner and his employer as
“persons responsible for the wore,” O28) GA:
§ 46-3-32(3), and imposed a duty upon both to report the
work. O.C.G.A. § 46-3-33(1).
Although lack of notice to Petitioner might have
become irrelevant as a practical matter if his employer had
reported the work and obviated the necessity for Preston
to report, Ashland’s awareness itself became irrelevant
when Ashland failed to contact Respondent. The onus
was back on Preston, but he had not been afforded the
information necessary to protect himself. Ultimately,
arguing that lack of notice to Petitioner is “irrelevant”
because of Ashland’s fruitless awareness is like saying
that a defendant in a lawsuit is not entitled to service
once a co-defendant has been served.
Similarly, in Opposing certiorari in the Georgia
Supreme Court, Georgia Power responded to Petitioner’s
due process concerns by arguing that “knowledge by the
employer is imputed to the employee; there is no duty to
personally warn each employee of a danger.” (Brief at 2,
n.2) But due process ordinarily guarantees notice reason-
ably calculated to reach the individual, Mullane, supra,
339 U.S. at 314, not notice to a surrogate with unlike
interests, Hansberry ». fee, 311 US 39 (1940). Thus if
Respondent means to argue that due process notice
Should be imputed to Preston solely by virtue of Ash-
land’s knowledge, the argument is a mirage.
EME OEE IEF 4 Se. Ge THLE BP 2S
19
Alternatively, Respondent may mean to argue that
Ashland as statutory employer* was a surrogate-in-inter-
est for Preston, and could be counted upon to report the
work in order to protect Petitioner’s property interest.
Ashland, however, concretely demonstrated its lack of
interest in the statutory reporting requirements by failing
to report its intended work. Having demonstrated its lack
of concern, Ashland could hardly be counted upon to
share its awareness of the high-tension lines with Peti-
tioner, so that he could report the same work they had
failed to report.
Moreover, the parties’ interests differed dramatically.
Ashland was not Petitioner’s surrogate in any realistic
sense, because Ashland had no affirmative tort rights to
preserve. Ashland lacked incentive to protect Preston’s
tort rights, which belonged only to Preston. Even the
mild incentives Ashland might have had before 1992 to
report intended work have been diluted drastically by the
1992 amendment. Ashland is no longer required to
indemnify Respondent for any injury to Ashland’s
workers (under O.C.G.A. § 46-3-40(c)), because Georgia
Power is now off the hook entirely absent advance report
of the work. But most importantly, Ashland did not share
Preston’s interest in protecting his potential tort claim.
3 In fact, Ashland was not Preston’s employer, except for
purposes of the workers’ compensation exclusion of tort
liability. (App., infra, 4a-7a). Preston worked for a temporary
labor pool. (App., infra, 4a).
20
Il. THE RESULT OF THIS CASE WILL BE PRAC-
TICALLY IMPORTANT
This case is significant practically as well as legally
and conceptually. The result affects similar victims, in
Georgia and potentially elsewhere.
A. This Case Affects High Tension Line Victims
Throughout Georgia.
Most directly affected by the outcome of this case are
not only Petitioner Preston, but also other worker/vic-
tims of high-voltage shocks in Georgia. See, e.g. Santana v.
Georgia Power Co., supra; Malvarez, supra; Lamar Elec. Mem.
Corp. v. Carroll, supra. The reported appellate decisions
make clear that such incidents are frequent. See also, e.g¢.,
Buckner v. Colquitt Elec. Mem. Corp., 206 Ga.App. 69, 424
S.E.2d 299 (1992); Three Notch Elec. Mem. Corp. v. Bush, 190
Ga.App. 858, 380 S.E.2d 720 (1989); Brown v. Fitzgerald,
177 Ga.App. 859, 341 S.E.2d 476 (1986); Habersham Elec.
Mem. Corp. v. Dalton, 170 Ga.App. 483, 317 S.E.2d 312
(1984); Colquitt Elec. Mem. Corp. v. Cvengros, 165 Ga.App.
649, 302 S.E.2d 407 (1983). All such victims will lose their
potential negligence claims if this Court should decide
that utilities need not notify the public of high voltage in
their lines.
B. This Case Potentially Affects High Tension
Line Victims Generally.
Also potentially affected are similar worker/victims
in other states with comparable legislation, which would
raise identical due process notice issues. At least twenty-
Oey Ve eat eee ee Eee eRe ee ee eee Pe TN Ee Sy Ie Ce ET ed ee ae ne Ee eae Ne ee ee
Pe ee eee ee Tv) e
EN a eT
21
three states have adopted some variation of the High-
voltage Safety Act. Eleven of those statutes, like Geor-
gia’s, create a liability to indemnify the utility for failure
to report work in advance.* One other state simply makes
the defaulter liable for all damages resulting.5 Two others
give the utility contribution rights. The remaining nine
States’ statutes’ have no provision for reassigning or
shifting civil liability for resulting personal injuries.
As yet, no other state’s version of the High-voltage
Safety Act permits utilities to escape liability altogether
for their own negligence. But if the Georgia General
Assembly may deprive Petitioner of his tort claim, while
omitting to require that utilities post public notice of high
voltage, then other states may enact similar statutes lack-
ing suitable notice requirements. Citizens may be
+ Those states are Alaska, AS 18.60.685(b); Arizona, A.R.S.
§ 40-360.44B; Arkansas, Ark. Code Ann. § 11-5-305(a); Idaho,
[.C. § 55-2404(2); Massachusetts, M.G.L.A. ch. 166 § 21G(b);
Nevada, NRS § 455.240.3; Oklahoma, 63 Okla. St. Ann. § 984;
South Dakota, SDCL § 49-32-17; Texas, Health & Safety Code
§ 752.008 (Vernon); Utah, Utah Code Ann. § 54-8c-4(3); and
Wyoming, W.S. § 37-3-305.
> Colorado, Col. Rev. St. § 9-2.5-104(2).
6 Mississippi, Miss. Code 1972 § 45-15-13(2); and Missouri,
V.A.M.S. § 319.085.
Alabama, Code Ala. §§ 37-8-52 to 37-8-55; Maryland, Ann.
Code Md. Lab. & Empl., §§ 6-101 to 6-110; Nebraska, Rev. St.
Neb. §§ 48-436 to 48-442; New Jersey, NJSA §§ 34:6-47.1 to
34:6-47.9; New York, N.Y. Lab. Law, § 202-h (McKinney); North
Dakota, N.D. Cent. Code § 49-21.1-01 to 49-21.1-05:;
rg i ania, 43 Pa.C.S.A. §§ 26-1 to 26-7; Tennessee, T.C.A.
§ 68-103-101 to 68-103-108; and Virginia, Code Va. §§ 59.1-406
: 59.1-414.
22
deprived of factual knowledge necessary to protect their
property interests.
This case is important to shock and electrocution
victims as a practical matter, as well as significant to the
development of “property interests” and due process pro-
cedures.
¢--
CONCLUSION
This Court should grant the Petition for writ of cer-
tiorari.
This 30th day of June, 1998.
Respectfully submitted,
Davip A. Wesster, Esq.
300 Hurt Building
Atlanta, Georgia 30303-2914
(404) 681-3070
Counsel of Record
Harpy Grecory, Jr., Esq.
P.O. Drawer 5230
Cordele, Georgia 31015
(912) 273-7150
JoHN M. Hyatt, Esq.
Suite 201 Trust Building
545 North McDonough Street
Decatur, Georgia 30030
(404) 378-3635
Counsel for Petitioner
oC eee
la
WHOLE COURT
July 16, 1997
In the Court of Appeals of Georgia
A97A0776. PRESTON V. GEORGIA POWER CO. ET AL.
SM-045
A97A0777. INSURANCE COMPANY OF NORTH AMER-
ICA V. GEORGIA POWER CO. ET AL. SM-046
SMITH, Judge.
While cleaning a railroad freight car, Roy Preston was
grievously injured by contact with a high-voltage power
line. He sought damages from Georgia Power Company,
the owner of the power line, and Ashland Chemical Com-
pany, for which he was working at the time of the inci-
dent. Insurance Company of North America intervened
seeking to enforce its subrogation rights under OCGA
§ 34-9-11.1(b) for its payment of workers’ compensation
benefits to Preston.!
The trial court granted summary judgment to Ash-
land and Georgia Power. Preston originally appealed to
the Supreme Court because he contended the constitu-
tionality of the High-voltage Safety Act, was called into
question. Ashland moved to transfer the appeals to this
Court, and Preston opposed the transfer on the ground
that a constitutional issue had been raised and ruled
upon by the trial court in an earlier order, as to which the
Supreme Court had refused interlocutory review. The
' In its appeal, Case No. A97A0777, INA has adopted and
incorporated by reference Preston’s briefs.
2a
Supreme Court granted Ashland’s motion to transfer the
appeals to this court on the ground that the trial court
decided no constitutional issue in the order appealed
from. See Raskin v. Wallace, 215 Ga.App. 603, 604(1) (451
S.E.2d 485) (1994).
The trial court granted summary judgment to Ash-
land on the ground of the workers’ compensation tort bar
and to Georgia Power on the ground of lack of proximate
cause. Because Preston was a “borrowed servant” of Ash-
land at the time of his injury, and because Georgia Power
was protected by Ashland’s lack of notice of a hazardous
activity under the High-voltage Safety Act, OCGA
§§ 46-3-30 through 46-3-40, we affirm.
The evidence, construed in Preston’s favor, shows the
following: Ashland received bulk chemicals via railcar on
a siding between its plant and a power line running
parallel to the plant wall and the siding. Occasionally,
chemicals would become clogged in the hoppers of the
railcar, and Ashland employees would be instructed to
clean out the railcar from the top. It is undisputed that for
many years Ashland’s accepted method of cleaning rail-
cars was to lower an employee into the car in a safety
harness with a broom or shovel. In May 1992, Ashland’s
environmental health and safety department recom-
mended a change in this method because of the potential
danger of lowering an employee into a confined space
with chemical dust. Some time after this recommenda-
tion, Ashland began to use a shovel or spader on a 20- to
22-foot metal pole so that employees could stand on top
of the railcars to remove the residue. Ashland employees
used this spader “long-ways,” with the pole parallel to
3a
the length of the railcar, because they were aware they
could be hurt by the power lines.
On June 22, 1993, Preston was working for Ashland
as a temporary employee assigned by ProTemps, a tem-
porary labor agency. Preston was given the spader and
instructed to clean out a railcar. This violated Ashland’s
policy that no temporary employees were to be allowed
on top of railcars. Preston was not given any instructions
in the use of the spader. Although he testified he did not
see the power lines, he agreed there was nothing to
prevent his seeing them and he knew it would be dan-
gerous to touch power wires with a pole. While standing
on top of the railcar, he swung the pole at right angles to
the track and contacted the power lines, suffering severe
personal injury. The power lines were between 26 and 28
feet above the ground and approximately 11 feet to one
side of the railroad track; the diagonal clearance was
measured at approximately 13 feet from the top of the
railcar.
Ashland employees testified that they knew of no
personal injury from the power lines on Ashland’s prem-
ises before Preston was hurt. No evidence was presented
that Georgia Power knew Ashland had begun using a 20-
to 22-foot metal pole in the vicinity of existing power
lines. No witness testified that Georgia Power personnel
were present at Ashland on previous occasions when
railcars were on the track, when unloading operations
were taking place, or when the spader was being used.
Georgia Power was never notified that the spader would
be used or that work was to be performed within ten feet
of its lines.
4a
1. With respect to Preston’s claims against Ashland
Chemical, the only issue is the application of the workers’
compensation tort bar, OCGA § 34-9-11(a). At the time of
his injury, Preston was a temporary laborer assigned by
his employer, ProTemps, to Ashland Chemical. Ashland
contends that it is protected by the statutory bar because
Preston was its borrowed servant at the time of his injury.
Ashland presented testimony that Preston was under its
exclusive supervision and control while working at its
facility with respect to the work performed by Preston
and its power to discharge him.
Preston, however, points to the testimony of an Ash-
land “compliance specialist” or safety officer agreeing
that he “wouldn’t have a problem with” ProTemps substi-
tuting another ProTemps worker in Preston’s place, and
the testimony of an Ashland manager that ProTemps
would do the actual firing if Ashland became dissatisfied
with Preston. This testimony, he contends, forestalls sum-
mary judgment on the issue of whether he was a bor-
rowed servant at the time of his injury.
“{I]n order for an employee to be a borrowed
employee, the evidence must show that (1) the special
master had complete control and direction of the servant
for the occasion; (2) the general master had no such
confrol, and (3) the special master had the exclusive right
to discharge the servant.” (Citations and punctuation
omitted.) Six Flags Over Georgia, Inc. v. Hill, 247 Ga. 375,
377(1) (276 S.E.2d 572) (1981). “[A]ll three prongs of the
test must focus on ‘the occasion when the injury
occurred’ rather than the work relationship in general.”
Stephens v. Oates, 189 Ga.App. 6, 7 (374 S.E.2d 821) (1988).
5a
Because a temporary labor service “is in the very busi-
ness of temporarily ‘loaning’ its employees to others,
[cits.],” Sheets v. J. H. Heath Tree Svc., 193 Ga.App. 278, 279
(387 S.E.2d 155) (1989), this court has repeatedly consid-
ered the employment status of such agency employees.
See, e.g., Staffing Resources, Inc. v. Nash, 218 Ga.App. 525,
526 (462 S.E.2d 401) (1995); Sheets, supra; Stephens, supra.
The crucial issue here is whether the extent of control
retained by ProTemps over Preston is sufficient to void
the third part of the “borrowed servant” test: the exclu-
sive right to discharge.
The Ashland manager’s testimony that ProTemps
would do the actual firing at the request of Ashland does
not show a nonexclusive power to discharge; that theory
was expressly addressed and rejected in Nash, supra at
5926. Here, we must decide whether the Ashland
employee’s testimony that he would not object to Pro-
Temps’s removing Preston and substituting another tem-
porary worker in his place deprives Ashland of its
exclusive power to discharge as described in Nash, Sheets,
and Stephens. We conclude that it does not.
Even if ProTemps retained some authority to remove
Preston from his position at Ashland, the power of the
general master to reassign or discharge a borrowed ser-
vant is irrelevant to the servant’s employment status with
the special master. In Six Flags, supra, the Supreme Court
defined the special master’s “exclusive right to dis-
charge” the borrowed servant as the power to unilaterally
discharge from working on the specific task assigned by
the special master and from working for the special mas-
ter. Six Flags, supra at 378(1).
6a
In Stephens, supra, relying on the holding in Six Flags,
this Court reiterated that the focus of the borrowed ser-
vant test must be the special master’s control at the time
of the injury, rather than generally, and that this is also
true of “the rights of the special master to discharge the
servant and to put another in his place.” Id. at 7-8. With
respect to Preston, ProTemps “obviously retained some
control over him, including the right to terminate his
employment as its ‘lendable servant.’ However, once
there was an assignment of appellant to a special master,
[ProTemps] relinquished that control during the existence
of the ‘borrowed servant’ relationship.” Sheets, supra at
279.
This result is consistent with our earlier holding in
Jarrard v. Doyle, 164 Ga.App. 339, 340 (297 S.E.2d 301)
(1982). In Jarrard, a hotel employee was temporarily
assigned to assist a contractor in performing repair work
on the hotel and therefore became a borrowed servant of
the contractor. Even though the hotel retained some
authority over its employee and “could have taken him
off the project and assigned him to other work at any
” id. at 340(1), the contractor, as the special master,
“clearly had the exclusive right to control and direct the
plaintiff’s work on the particular task in question, as well
time,
as to dismiss him from that task for unsatisfactory perfor-
mance” because “the right to discharge that the special
master must have means the right to discharge the ser-
vant from that particular work.” (Citations and punctua-
tion omitted.) Id.
Undisputed testimony was presented that Ashland
had unilateral authority to discharge Preston from the
work assigned to him; on the morning in question it
7a
removed Preston from his task of labeling cans and
directed him to clean the railcar. It could do so without
the permission of ProTemps; a ProTemps officer, by affi-
davit, stated that ProTemps had no authority to counter-
mand such an order. Because Ashland had this unilateral
right to discharge Preston from the particular work he
was engaged in at the time of his injury, the trial court
did not err in holding that Preston was a borrowed ser-
vant and that h. aim was barred by OCGA § 34-9-11(a).
2. Preston also complains of the trial court’s grant
of summary judgment in favor of Georgia Power on the
ground of lack of proximate cause. We need not address
Preston’s contention because summary judgment was
proper under OCGA § 46-3-39(a); Ashland and Preston
failed to notify Georgia Power of work taking place
within ten feet of its line.
We cannot, as the dissent asserts, attempt to examine
the motives of the Supreme Court in first denying an
interlocutory application on the constitutionality of the
High-voltage Safety Act and then transferring these
appeals to this court. The dissent is incorrect in its con-
clusion that the transfer of these appeals to this court is
dispositive of any constitutional issue or circumscribes
our authority to rule on an issue that was raised and
argued below. See Atlanta Independent School System v.
Lane, 266 Ga. 657 (469 S.E.2d 22) (1996) (transfer of case to
Court of Appeals not dispositive of constitutional issues).
It is also incorrect in its assertion that Preston will be
unable to raise this issue at a later time. While Preston’s
interlocutory application to the Supreme Court on the
constitutional issue was denied, he will have yet another
opportunity to raise it on certiorari.
8a
Under the authority of Southeast Ceramics v. Klem, 246
Ga. 294(1) (271 S.E.2d 199) (1980), the Supreme Court had
the power to review the constitutional issue raised in the
court’s earlier interlocutory order when these appeals
were filed. It apparently has declined to do so by trans-
ferring the appeals to this court. We note, however, that
the constitutional issue raised by Preston appears irrele-
vant. Preston’s sole constitutional ground asserts that the
High-voltage Safety Act is unreasonable, arbitrary, and
capricious because it fails to require the utility to identify
which of its lines are high-voltage lines. But a filed and
recorded public document in which Ashland granted an
electrical power easement to Georgia Power clearly iden-
tifies the voltage of the power lines and demonstrates
that Ashland had actual notice of the high voltage. In light
of the evidence that Ashland was required to give notice
to Georgia Power and was aware of the high voltage
carried by the power lines, Preston's lack of knowledge is
immaterial to the application of OCGA § 46-3-39(a).
Whatever the reasons for the transfer, the appli-
cability of the High-voltage Safety Act was raised and
fully briefed below and is before us now. We cannot
decline to decide this issue by speculating on the reasons
for the Supreme Court’s transfer as specifically forbidden
by that Court in Lane. We therefore consider the appli-
cability of the High-voltage Safety Act to this case.?
2 Although we do not reach the issue, the dissent is also
incorrect in its adoption of Preston’s claim that he was “blind-
sided” by the trial court’s grant of summary judgment on the
issue of proximate cause. While the parties’ initial briefs on
9a
Several interlocking provisions of the High-voltage
Safety Act set out the duties of persons responsible for
performing work near high-voltage lines.? OCGA
§ 46-3-33 provides in pertinent part: “No person, firm, or
corporation shall commence any work as defined in para-
graph (6) of Code Section 46-3-32 if at any time any
‘person or any item specified in paragraph (6) of Code
Section 46-3-32 may be brought within ten feet of any
high-voltage line unless and-until: (1) The person respon-
sible for the work has given the notice required by Code
Section 46-3-34.” OCGA § 46-3-34(b) provides: “Where
work is to be done, the person responsible for such work
shall give notice to the utilities protection center during
its regular business hours at least 72 hours, excluding
weekends and holidays, prior to commencing such
work.”
The High-voltage Safety Act provides a restriction on
liability in OCGA § 46-3-39: “(a) The owner or operator of
high-voltage lines shall not be liable for damage or loss to
person or property resulting from work within ten feet of
high-voltage lines unless notice has been given as
summary judgment focused on the High-voltage Safety Act,
issues of negligence and proximate cause were fully briefed and
litigated below in supplemental briefs by both parties.
* “Person responsible for the work’ means the person
actually doing the work as well as any person, firm, or
corporation who employs and carries on his payroll any person
actually doing the work or who employs a subcontractor who
actually does the work.” OCGA § 46-3-32(3). “ ‘Work’ means the
physical act of performing or preparing to perform any activity
under, over, by, or near high-voltage lines.” OCGA § 46-3-32(6).
10a
required by Code Section 46-3-34 and the owner or opera-
tor of the high-voltage line has failed to comply with the
provisions of Code Section 46-3-33. (b) Except as pro-
vided in subsection (a) of this Code section, nothing in
this part shall be construed or applied so as to limit or
reduce the duty or degree of care applicable to owners or
operators of high-voltage lines with respect to damage or
loss to person or property.”
In refusing to grant summary judgment to Georgia
Power on the basis of OCGA § 46-3-39(a), the trial court
relied upon a number of decisions that predate extensive
and substantial amendments to the High-voltage Safety
Act. Ga.Laws 1992, p. 2141, sec. 1. Before the 1992 amend-
ment, the Georgia Supreme Court construed the High-
voltage Safety Act to hold that even if the Act were
violated, the utility nevertheless must show that the lines
were properly located and maintained in order to bar
recovery. Malvarez v. Georgia Power Co., 250 Ga. 568, 569
(300 S.E.2d 145) (1983). In so holding, the Supreme Court
pointed to the language of former OCGA § 46-3-38 (Ga.
Code Ann. § 34B-209), which provided in its entirety:
“Nothing in this part shall be construed or applied so as
to limit or reduce the duty or degree of care applicable to
owners or operators of high-voltage lines with respect to
damage or loss to person or property.” Id. at 569. Brown v.
Southern Bell Tel.&c., Co., 209 Ga.App. 99 (432 S.E.2d 675)
(1993), relied upon by the trial court, expressly stated that
the earlier version of the High-voltage Safety Act was
applicable in that case. Id. at 100. While the date of the
incident in Leonardson v. Georgia Power Co., 210 Ga.App.
574, 575, n. 1 (436 S.E.2d 690) (1993), is not revealed, the
Pep ee fe eee eR EEE Fees ete Oe ORES tS me Ce ee,
%
q
lla
decision simply relies upon Malvarez and does not note
the 1992 amendment.
The language of the former Act provided no express
restriction on liability like that now codified in OCGA
§ 46-3-39(a). It simply forbade the performance of certain
work near high-voltage lines without notification and
without the completion of certain safety measures. See
former OCGA §§ 46-3-31 (Ga. Code Ann. § 34B-202);
46-3-32 (Ga. Code Ann. § 34B-203); 46-3-33 (Ga. Code
Ann. § 34B-205). On this basis, Malvarez and its progeny
held that the failure to obey these provisions of the Act
did not of itself relieve the utility from liability. Malvarez,
supra at 569.
The 1992 amendment of the High-voltage Safety Act
revised the Act in large part and significantly altered the
language relied upon in Malvarez. The amendment for the
first time provided an explicit restriction on liability and
added language that expressly exempts that restriction
from the provision that the power line owner or opera-
tor’s duty or degree of care is not limited or reduced by
the Act. See OCGA § 46-3-39(a), (b).
Under the rules of statutory construction, we must
construe all related statutes together, give meaning to
each part of the statute, and avoid constructions that
result in surplusage and meaningless language. City of
Buchanan v. Pope, 222 Ga.App. 716, 717(1) (476 S.E.2d 53)
(1996). Moreover, we must presume that at the time the
1992 amendment was enacted the legislature was aware
of the existing law and the Malvarez decision. Hart v.
Owens-Illinois, 250 Ga. 397, 400 (297 S.E.2d 462) (1982).
The legislature expressly revised the statute to avoid the
12a
result in Malvarez; we must conclude that they intended
to do so. This conclusion is consistent with this court’s
recent holding in Callaway v. Crown Crafts, Inc. 223
Ga.App. 297, 299(3) (477 S.E.2d 435) (1996) (physical pre-
cedent only),4 in which we applied the High-voltage
Safety Act, as amended, to relieve the owner of a high-
voltage line from liability.
A grant of summary judgment must be affirmed if it
is right for any reason. Malaga Mgmt. Co. v. John Deere Co.,
208 Ga.App. 764, 767(5) (431 S.E.2d 746); see Precise v. City
of Rossville, 261 Ga. 210, 211(3) (403 S.E.2d 47) (1991).
Because Georgia Power was protected under OCGA
§ 46-3-39(a) by Preston’s and Ashland’s failure to give the
appropriate notice, the trial court correctly granted sum-
mary judgment in favor of Georgia Power.
Judgment affirmed. Andrews, C. i Birdsong, P. J.,
Eldridge, J., concur. Beasley, J., concurs specially. Ruffin, J.,
concurs in the judgment only. McMurray, P.J., dissents.
A97A0776. PRESTON V. GEORGIA POWER CO. ET AL.
SM-45
A97A0777. INSURANCE COMPANY OF NORTH AMER-
ICA V. GEORGIA POWER COMPANY ET AL. SM-46
BEASLEY, Judge, concurring specially.
[ concur fully in Division 1 but I do not fully concur
in Division 2.
* The special concurrence in Callaway incorrectly applied
Malvarez, supra, and its progeny without reference to the 1992
revisions of the Act. Callaway, supra at 300(2).
l3a
For one thing, I do not agree that Preston will have
an opportunity to pursue his claim of unconstitutionality
of the High-voltage Safety Act on petition for certiorari. If
the Supreme Court grants his petition, should he file one,
its review will be limited to this Court’s rulings, as it will
be this Court’s action and not that of the superior court
which will be subject to review. As stated in Daniels v.
State, 248 Ga. 591, 592 fn. 1 (285 S.E.2d 516) (1981), when
a petition for certiorari is granted and the case is before
the Supreme Court, “in its discretion [that] court can
consider any matter presented to or decided by the Court
of Appeals.” Southeast Ceramics v. Klem, 246 Ga. 294 (271
S.E.2d 199) (1980), is an illustration. The Constitution
provides that “The Supreme Court may review by cer-
tiorari cases in the Court of Appeals which are of gravity
or great public importance.” Ga. Const. 1983, Art. VI, Sec.
VI, Par. V. The scope of certiorari, then, is comprised of
matters presented to or decided by the Court of Appeals.
This Court cannot decide the constitutionality vel
non of a statute (Ga. Const. 1983, Art. VI, Sec. VI, Par.
II(1)), and the matter was not and, for the jurisdictional
reason, could not be, presented to us. In fact, the issue
was presented to the Supreme Court by appellant, but it
transferred the case to the Court of Appeals. Even if, as a
matter of jurisdictional jurisprudence, the Supreme Court
could reach around the Court of Appeals decision and
take up on certiorari an issue decided only by the supe-
rior court and outside the competency of the Court of
Appeals, it is unrealistic to propose that it would do so.
Had the Supreme Court viewed the constitutionality
issue properly before it on the appeal taken directly to it
l4a
by appellant, it would have been compelled by the consti-
tution to accept the case because of its exclusive jurisdic-
tion of such matters. Ga. Const. 1983, Art. VI, Sec. VI, Par.
II(1). Instead, it transferred the appeal to this Court.
Preston’s claim in this regard has effectively been fore-
closed. The trial court denied plaintiff Preston’s motion to
strike Georgia Power Company’s defense founded on the
Act, which motion was based in part on the charge that
the Act was unconstitutional. Preston argued that it vio-
lated his rights to equal protection and due process.
Although he referred to both the federal and the state
constitutions, he did so generally and without any cita-
tion to specific provisions. The trial court did not
expressly differentiate in its ruling either, although it
ruled that Preston had no Standing to complain of the
lack of equal protection and it ruled that federally pro-
tected due process was not contravened by the Act. The
court granted a certificate of immediate review at plain-
tiff’s request, but the Supreme Court denied interlocutory
appeal. It did not explain its denial.
The Supreme Court has now transferred to this Court
Preston’s appeal from the order granting both Ashland’s
and Georgia Power Company’s motions for summary
judgment. In that order, the trial court noted: “Plaintiff
also raises constitutional challenges to the High Voltage
Safety Act on equal protection and due process grounds.
This court has already ruled adversely to plaintiff on
these constitutional issues in the order filed November
17, 1994.” Thus, the trial court reiterated and confirmed
its ruling on constitutionality and made it part of the
summary judgment order as well. That ruling was neces-
sary to its ruling on the remaining grounds, which
l5a
depended upon an application of the Act; had it been
unconstitutional, Georgia Power Company would not
have been entitled to summary judgment.
This Court could not have addressed the issue of
constitutionality, for lack of subject matter jurisdiction,
and the transfer to this Court merely means that the
Supreme Court has discerned some reason it need not
exercise its exclusive jurisdiction over the constitu-
tionality issue. In the words used in Atlanta Independent
School System v. Lane, 266 Ga. 657(1) (469 S.E.2d 22) (1996),
“[the] transfer merely represents [the Supreme Court's]
determination that [this] was not a case involving a con-
stitutional issue over which [it] had exclusive jurisdic-
tion.” Id. This does not mean that the constitutional issue
does not have merit. Id. at 658.
The Supreme Court's order states that the case is
transferred to this Court “[b]lecause the issue on which
the trial court granted summary judgment . . . does not
fall within the jurisdiction of this Court.” The constitu-
tionality issue falls by the wayside.
On another subject, I must point out that I do concur
in footnote 4. In 1992, the general liability of owners and
operators of high-voltage lines was eliminated in the ten-
foot circumstances described in OCGA § 46-3-39(a).
Because of the 1992 amendments to the High-voltage
Safety Act, the liability for injury or damage caused by
improperly located or improperly maintained lines which
is discussed in Malvarez v. Ga. Power Co., 250 Ga. 568 (300
S.E.2d 145) (1983), applies only to instances outside the
exception created in subsection (a). See OCGA
§ 46-3-39(b). The date of the accident in Callaway v. Crown
l6a
Crafts, Inc., 223 Ga.App. 297 (477 S.E.2d 435) (1996), was
after the effective date of the 1992 amendments.
A97A0776. PRESTON V. GEORGIA POWER CO. ET AL.
A97A0777. INSURANCE COMPANY OF NORTH AMER-
ICA V. GEORGIA POWER COMPANY ET AL.
McMURRAY, Presiding Judge, dissenting.
I respectfully dissent as to Division 2 of the majority
opinion because, in my view, a fair and sensible reading
of the Supreme Court's order transferring the cases sub
judice to the Court of Appeals precludes this Court's
review of any issue concerning application of the 1992
amendment to Georgia’s High-voltage Safety Act, OCGA
§ 46-3-39(a). I believe the unique procedural circum-
Stances in these cases (both in the trial court and on
appeal) takes [sic] the trial court’s summary judgment
order outside the “right for any reason” rule and focuses
[sic] this Court on the sole basis of the trial court's order
granting summary judgment to Georgia Power Company
(“Georgia Power”), i.e., proximate cause. And as to this
issue, | would vacate that part of thé trial court’s judg-
ment granting summary judgment to Georgia Power, and
remand the case to the trial court, because Roy Preston's
attorneys were unfairly blind-sided by the proximate
cause issue while defending the sole basis of Georgia
Power’s motion for summary judgment, “whether the
action against [Georgia Power] is barred by the provi-
sions of Georgia’s High-voltage Safety Act (OCGA
§ 46-3-30), which was amended in 1992.”
Although the trial court rejected Roy Preston’s con-
stitutional challenge to OCGA § 46-3-39(a) in an earlier
17a
interlocutory order, the trial court concluded on summary
judgment that this 1992 amendment to Georgia’s High-
voltage Safety Act does not preclude Preston’s claims
against Georgia Power. The trial court, nonetheless,
granted summary judgment based on a finding that Geor-
gia Power’s noncompliance with the National Electric
Safety Code was not a proximate cause of Roy Preston's
injuries. This procedural posture is the basis for the fol-
lowing transfer order entered by the Georgia Supreme
Court: “Because the issue on which the trial court granted
summary judgment in these cases does not fall within the
jurisdiction of this Court, the appeals are hereby trans-
ferred to the Court of Appeals. All the Justices concur,
except Sears, J., who dissents.”
I believe the Georgia Supreme Court's transfer order
removes this Court’s authority to apply OCGA
§ 46-3-39(a) based on the “right for any reason” rule and
focuses this Court’s review to the sole basis of the trial
court’s order granting summary judgment to Georgia
Power, i.e., proximate cause. Saying otherwise, precludes
Roy Preston’s right to challenge the constitutional val-
idity of the very Code subsection which is the basis of the
majority’s opinion, OCGA § 46-3-39(a).° I, therefore,
> Even so, I cannot go along with majority’s view that
OCGA § 46-3-39(a) nullifies the Supreme Court’s holding in
Malvarez v. Georgia Power Company, 250 Ga. 568 (300 S.E.2d 145),
“that lack of notification [under OCGA § 46-3-34] is a bar to
recovery only where the lines are ‘otherwise properly located
and maintained.’ Carden v. Ga. Power, [231 Ga. 456, 457 (202
S.E.2d 55)].” Malvarez v. Georgia Power Co., 250 Ga. 568, 569,
supra. As Judge Beasley accurately pointed out in a special
concurrence in Callaway v. Crown Crafts, Inc., 223 Ga.App. 297,
18a
believe it appropriate to zero-in on the trial court’s ruling
that Georgia Power’s noncompliance with the National
Electric Safety Code was not a proximate cause of Roy
Preston's injuries.
“ “Although our law concerning motions for sum-
mary judgment allows a trial court to grant, sua sponte, a
summary judgment, a trial court’s authority to do so is
not unlimited. The grant of summary judgment must be
proper in all other respects. (Cit.) “This means that in
addition to ensuring the record supports such a judg-
ment, the trial court must ensure that the party against
whom summary judgment is rendered is given full and
fair notice and opportunity to respond prior to entry of
summary judgment. (Cits.)” (Cit.)’ Hodge v. Sada Enter-
prise, 217 Ga.App. 688, 690(1) (458 S.E.2d 876) (1995).
‘“The crucial point is to insure that the party against
whom summary judgment is sought has had a full and
final opportunity to meet and attempt to controvert the
assertions against him.” (Cit.)’ Famble v. State Farm Ins.
Co., 204 Ga.App. 332, 336(4) (419 S.E.2d 143) (1992).”
300(2) (477 S.E.2d 435), the Malvarez rule recognizes the distinct
duty imposed upon one maintaining high-tension lines to
“ “maintain them in such a manner and at sucha location as not
to injure persons who might reasonably be expected to come in
contact with them.’ (Emphasis removed.) [Buckner v. Colquitt
EMC, 206 Ga.App. 69, 70 (424 S.E.2d 299)].” Callaway v. Crown
Crafts, Inc., 223 Ga.App. 297, 300(2), supra. Since there is
evidence in the cases sub judice that Georgia Power did not
comply with this duty by failing to maintain its power line
within standards prescribed by the National Electric Safety
Code, I believe genuine issues of material fact remain as to
Georgia Power’s liability (breach of duty) for any such
noncompliance.
19a
(Emphasis in the original.) Aycock v. Calk, 222 Ga.App.
763 (476 S.E.2d 274.)
Georgia Power narrowed the scope of its motion for
summary judgment with the following statement in its
supporting brief: “The sole issue raised by Georgia
Power’s Motion for Summary Judgment is whether the
action against it is barred by the provisions of Georgia’s
High-voltage Safety Act (OCGA-§ 46-3-30), which was
amended in 1992. It is believed that this is the first
occasion for the new Act to be construed.” Although the
trial court rejected this assertion, Roy Preston was blind-
sided by the proximate cause issue in the trial court’s
summary judgment order. That is to say, Roy Preston’s
attorneys were simply not given a fair opportunity to
address the fact intensive proximate cause issue in the
trial court because they were concentrating on Georgia
Power’s sole request for the trial court to resolve
“whether the action against it is barred by the provisions
of Georgia’s High-voltage Safety Act (OCGA § 46-3-30),
which was amended in 1992.” Since proximate cause is a
matter which should be resolved only in plain, palpable
and undisputed cases where reasonable minds cannot
differ as to the conclusions to be reached, Wade v. Mit-
chell, 206 Ga.App. 265, 268(4) (424 S.E.2d 810), I believe
Roy Preston’s attorneys should be provided an oppor-
tunity to refine the evidentiary record and do whatever
else is necessary to defend the proximate cause issue in
the trial court. I stand firm in this view because, even
though the evidentiary record in the case sub judice
appears well-developed, I believe it unfair to hit a person
from the left (so to speak) when that person is defending
a blow from the right.
J PAS hays.
20a
| would vacate that part of the trial court’s judgment
granting summary judgment in favor of C
eOrgia Power
and remand the case to the tri
al court.
2la
SUPREME COURT OF THE STATE OF GEORGIA
CLERK’S OFFICE
ATLANTA
DATE: February 20, 1998
john M. Hyatt
HYATT & HYATT, P.C.
Suite 201 Trust Building
545 North McDonough Street
Decatur GA 30030
Case No. $97C1845
ROY K. PRESTON V. GEORGIA POWER COMPANY et al
COURT OF APPEALS CASE NO. A97A0776 A97A0777
[he Supreme Court today denied the petition for
certiorari in this case.
All the Justices concur.
Sincerely,
Sherie M. Welch, Clerk
7
SUPREME COURT OF GEORGIA
Case No. $97C1845 Atlanta, April 01, 1998
[he Honorable Supreme Court met pursuant to
adjournment.
[he following order was passed:
ROY K. PRESTON V. GEORGIA POWER COMPANY et al.
Upon consideration of the Motion for Reconsidera-
tion filed in this case, it is ordered that it be hereby
denied.
SUPREME COURT OF THE
STATE OR GEORGIA
Clerk’s Office, Atlanta
| hereby certify that the above is
a true extract from the minutes
of the Supreme Court of
Georgia. Witness my signature
and the seal of said court hereto
affixed the day and year last
above written.
Sherie M. Welch, Clerk.
23a
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
ROY K. PRESTON,
Plaintiff,
v. - Civil Action
GEORGIA POWER COMPANY | Gi So39°7
and ASHLAND CHEMICAL, INC., ~
Defendants.
ORDER
(Filed July 24, 1996)
The plaintiff in this action was an employee of Pro
Search & Pro Temps, Inc. (“Pro Search”). He was assigned
to work for defendant Ashland Chemical Inc. (“Ash-
land”) and on June 22, 1993 was directed to clean out a
railway car owned by defendant Norfolk Southern Rail-
way Company (“Norfolk”), which was parked on railroad
tracks near a high-voltage power line owned by Georgia
Power Company (“Georgia Power”). While cleaning out
the railway car, plaintiff allegedly struck the power line
with the aluminum pole of the spader he was using.
Plaintiff asserts that he was severely shocked, thrown
from the railroad car, and suffered severe injuries. This
case is currently before this court on Ashland’s motion
for summary judgment, Georgia Power's motion for sum-
mary judgment, and plaintiff’s motion to compel.
24a
A. Ashland’s Motion for Summary Judgment
1. O.C.G.A. § 34-9-11.1
Ashland argues for summary judgment on two
grounds. One is that Preston’s claims against Ashland are
barred under O.C.G.A. § 34-9-11.1 because he did not sue
Ashland within one year of the injury. The statute in
effect at the time of the injury stated that if the employee
failed to sue within one year, the employer or his insurer
had an assignment of the employee’s tort cause of action.
However, the statute was amended effective July 1, 1995
to clarify that the employee has a cause of action until the
applicable statute of limitations runs, but the employer or
his insurer has the right to file suit if the employee does
not sue within one year of the injury.
The amendment states it is retroactive to injuries
occurring on or after july 1, 1992. The Georgia Supreme
Court upheld this retroactivity as a change in the statute
of limitations affecting no vested rights. Vaughn v. Vulcan
Materials Co., 266 Ga. 163 (1996); Accord, Moore v. Savair-
nah Cocoa, Inc., 217 Ga. App. 869 (1995). Preston’s injury
occurred June 22, 1993 and suit was filed against Ashland
within the statute of limitations on August 19, 1994. Ash-
land’s motion for summary judgment on the basis that
Preston’s claims are barred under O.C.G.A. § 34-9-11.1 is
hereby denied.
2. Borrowed Servant
Ashland’s other argument for summary judgment is
that Preston was its borrowed servant and his tort claim
against Ashland is barred by the exclusive remedy of
workers’ compensation. O.C.G.A. § 34-9-11 states that
25a
“[t]he rights and the remedies granted to an employee by
this chapter shall exclude all other rights and remedies of
such employee . . . at common law or otherwise. :
Furthermore, O.C.G.A. § 34-9-23, which became effective
on July 1, 1994, reaffirmed this exclusivity provision. That
section states that “[t]his chapter is intended to provide a
complete and exclusive system and procedure for the
resolution of disputes between employers and
employees.” See also, Pappas v. Hill-Staton Eng'rs., Inc., 183
Ga. App. 258, cert. denied, 183 Ga. App. 906 (1987).
In Georgia, an employee who is a “borrowed ser-
vant” may recover for work-related injuries under
workers’ compensation from either the general master or
the special master, sometimes from both, but may not
recover workers’ compensation benefits from one
employer and maintain an action in tort against the other.
Coca-Cola Co. v. Nicks, 215 Ga. App. 381 (1994), citing U.S.
Fidelity & Co. v. Forrester, 230 Ga. 182 (1973). In Six Flags
Over Georgia, Inc. v. Hill, 247 Ga. 375 (1981), the Supreme
Court set forth a three-prong test for a “borrowed ser-
vant” to be considered an employee of the special master
as well [as] of the general master: 1) the special master
had complete control and direction of the servant for that
occasion, 2) the general master had no such control, and
3) the special master had exclusive right to discharge the
servant. In addition, there must be notice to and assent by
the servant as to the special relationship.
Preston in the case sub judice agrees that the first two
prongs of the test are met but argues that the temporary
agency retained the right to discharge him from employ-
ment, therefore Ashland did not have the unilateral right
26a
to discharge him and Preston was not a borrowed ser-
vant.
he Six Flags court analyzed the third prong “exclu-
sive right to discharge” in terms of the particular job the
employee was doing at the time of injury, holding that Six
Flags had the unilateral right to discharge the employee
from work on the task of the moment, the Mindbender
(where he was injured), and from work at Six Flags. The
court Was not concerned with whether the general master
had the right to discharge the employee, as well. This is
in accord with Fulghum Industries v. Pollard Lumber Co.,
l06 Ga. App. 49 (1962), cited by the Six Flags court.
Fulghum clarifies the third prong as “(3) that the special
master must have the exclusive right to discharge the
servant, to put another in his place or to put him to other
work. [Cits]” Fulghum at 52.
A later case which is in accord and tactuaily on point
is Stephens v. Oates, 189 Ga. App. 6 (1988). A Kelly Tempo-
rary Services employee was assigned to work side-by-
side with TG & Y warehouse employees. Kelly paid the
temporary employee, but TG & Y supervised her and told
her how and when to work. The injured employee argued
that Kelly had the exclusive right to discharge her, not TG
& Y. The Court of Appeals upheld the trial court's grant
of summary judgment to TG & Y on the basis that the
employee was a borrowed servant in its employ, citing
Six Flags that the three-prong test is to be applied as of
the time of the injury and that the third prong was met if
the special master could discharge the employee for
unsatisfactory work at that job assignment. Accord, Nash
v. Staffing Resources, Inc., 218 Ga. App. 525 (1995) (holding
that a temporary employee was a borrowed servant of an,
la J
27 a
employer when the employer made the decision to termi-
nate the worker from a temporary assignment but the
staffing agency actually fired the temporary employee it
had placed with the employer.) See also, Jarrard v. Doyle,
164 Ga. App. 339 (1982) (defining the third prong as the
“right to discharge from that particular work.”)
Charter Builders, Inc. v. Sims Crane Service, Inc., 150
Ga.App. 100 (1979) is factually distinguishable in that the
special master had to call the general master before
removing a crane operator from the job. The crane opera-
tor was held not to be a borrowed servant. In Sheets v. ].H.
Heath Tree Service, Inc., 193 Ga. App. 278 (1989), a Labor
Pool employee was assigned work with the tree service
(Heath). The Court of Appeals upheld the trial court
grant of summary judgment that the employee was
Heath’s borrowed servant on the basis that Heath had the
exclusive right to control and discharge insofar as this job
was concerned. Plaintiff in the case sub judice seizes on
language in Sheets that the Labor Pool relinquished con-
trol over the employee when assigned to the special
master, and argues that in the case sub judice, Pro Temps
did not relinquish its control. That is inapposite here, as
Pro Temps did relinquish day-to-day control of plaintiff’s
work.
In Southern Railway Co. v. Hand, 216 Ga. App. 370
(1995), Hand was employed by Bankhead Maintenance
Co. as a foreman of welding crews working on the rails of
Southern Railway (“Southern”). Southern moved for
summary judgment that Hand was its borrowed servant
when injured and proved that Southern assigned his
daily work, took him to job sites many times, helped him
unload his truck and prepare his work sites, could
28a
remove him from one job site or move him to another job,
and could make him re-do a job. The Court of Appeals,
citing Six Flags, held that Southern failed to establish that
Southern had the exclusive right to discharge the
employee and that Bankhead had no control or direction
over him for the occasion at issue. Preston asserts Hand as
authority that Ashland must prove it alone could dis-
charge Preston.
Hand, when read in conjunction with Six Flags,
requires that the analysis of “unilateral right to dis-
charge” be done in regard to the particular job Preston
was on when he was injured. Because Ashland had the
right to tell Preston to stop work on the railroad car and /
or leave Ashland’s premises just prior to the injury, and
could have done that without permission of Pro Temps, the
third prong of the Six Flags test is met.
This court notes that O.C.G.A. § 34-9-11(c), which
became effective April 7, 1995, grants immunity from tort
liability to a business using a temporary service when
workers’ compensation is provided either by the tempor-
ary service or by the business. Plaintiff argues this was
done to remedy a gap in existing law and cites to other
sections of the workers’ compensation code which pro-
vide that a “temporary help contracting firm” and
“employee leasing company” are employeers who must
provide workers’ compensation benefits to temporary
workers. However, the new code section also provides
that such temporary firms are statutory employers for
workers’ compensation purposes. Given the sizable and
consistent body of case law cited previously which holds
both employers to have tort immunity, it appears this
new section merely codifies existing case law.
Wie. HOE PDI AB ie
29a
Since plaintiff was Ashland’s borrowed servant,
plaintiff’s tort claim is barred by the exclusive remedy of
workers’ compensation, and Ashland’s motion for sum-
mary judgment is granted.
B. Georgia Power's Motion for Summary Judgment
Georgia Power argues that O.C.G.A. § 46-3-39 bars
any recovery for plaintiff because it was not given notice
of the work within ten feet of the high voltage line so that
it could shut off the power or otherwise make the area
safe. Affidavits submitted from a Georgia Power super-
visor and a supervisor at the Utilities Protection Center
attest that there is no record of any notice being given.
Georgia Power also argues that plaintiff and his
employer, defendant Ashland, are strictly liable for the
damage because of their lack of notice to the utility under
O.C.G.A. § 46-3-40(b).
Plaintiff agrees that Georgia Power is not liable
under the High Voltage Safety Act (HVSA) for the acci-
dent itself since it was not given notice and had no
opportunity to turn off the power, but that Georgia Power
remains liable for any negligence based on failure to
maintain the high voltage line at a proper distance under
three other sources of liability, the National Electrical
Safety Code (NESC), Georgia Power’s own in-house stan-
dards, and common law liability. Plaintiff cites Carden v.
Georgia Power, 231 Ga. 456 (1973) for the basis of common
law liability, that Georgia Power has a duty to maintain
the high voltage lines “in such a manner and at such a
location as not to injure persons who might be reasonably
30a
expected to come in contact with such lines.” Carden at
456-457.
Plaintiff also raises constitutional challenges to the
High Voltage Safety Act on equal protection and due
process grounds. This court has already ruled adversely
to plaintiff on these constitutional issues in the order filed
November 17, 1994.
Plaintiff also cites Malvarez v. Georgia Power, 250 Ga.
568 (1983) that lack of notice under this statute will bar
recovery by an employee only if the high voltage line was
“properly located and maintained.” Id. at 569. Malvarez
referenced then O.C.G.A. § 46-3-38 [which is now
O.C.G.A. § 46-3-39(b)] that “[njothing in this part shall be
construed or applied so as to limit or reduce the duty or
degree of care applicable to owners or operators of high-
voltage lines with respect to damage or loss to person or
property.” Georgia Power contends the July 1992 amend-
ment which added subsection (a) to O.C.G.A. § 46-3-39
negates the Malvarez holding. O.C.G.A. § 46-3-39(a) states
that Georgia Power “shall not be liable for dam-
age .. . resulting from work within ten feet . . . unless
notice has been given . . . and [Georgia Power] has failed
to” cut off the power or otherwise make the area safe.
Plaintiff argues that he was not engaged in a “trade
7,
or business” [the only activity for which notice is
required pursuant to the definition section, O.C.G.A.
§ 46-3-32] because he was a temporary employee and that
since he never knew what he would be working on from
one moment to the next, he could not give the required
72-hour advance notice. Georgia Power argues that plain-
tiff was engaged in his employer’s “trade or business”
3
a
,
3
3la
even though his employment was short-term. The evi-
dence shows plaintiff was engaged in the trade or busi-
ness of his employer.
Plaintiff also argues that the indemnification lan-
guage used in O.C.G.A. § 46-3-40(b) must mean that
Georgia Power has liability, because such language would
not be necessary without liability. However, this language
clearly applies in situations where Georgia Power may be
held liable to a third-party because of an accident, e.g.,
for power outages, or for property damage to its own
property or others’ property, regardless of how the acci-
dent occurred.
This court has reviewed the HVSA prior to the July
1992 amendment and after that amendment. At the time
Carden, supra, was decided, former code O.C.G.A.
§ 46-3-31 exempted a worker from notification respon-
sibility, and made his employer liable to him for any
injuries resulting from a failure of the employer to notify
Georgia Power. That section was repealed effective July 1,
1992 when O.C.G.A. § 46-3-39(a) was added and the
definition of “person responsible for the work” was
rewritten to include the worker as well as the employer.
The indemnification section was also added July 1992, as
“was O.C.G.A. § 46-3-40(c) which makes Georgia Power
liable for costs incurred by the employer if Georgia
Power delays in making the area safe. Read as a whole,
the July 1992 amendments broaden the definition of who
is to give notice by adding those actually doing the work
as well as the employer, and by requiring notice in more
situations, when work is done within 10 feet of the power
line rather than 8 feet. O.C.G.A. § 46-3-33, formerly
O.C.G.A. § 46-3-32.
x
32a
Plaintiff was a “person responsible for the work” and
his activity was “work” done in the pursuit of his trade or
business, and therefore he did have notification respon-
sibility under O.C.G.A. § 46-3-39. It is undisputed that
notice was not given. However, the July 1992 amend-
ments did not relieve Georgia Power of responsibility for
properly locating and maintaining power lines. Malvarez,
supra; Carden, supra. Two recent cases make this plain.
Leonardson v. Georgia Power Co., 210 Ga. App. 574 (1993)
cited Malvarez in a footnote for the proposition that negli-
gent installation or maintenance of high-voltage lines
which cause injury is actionable even though no notice
was given. Brown v. Southern Bell Tel. & Tel Co., 209 Ga.
App. 99 (1993) held that a claim of negligence against
Southern Bell was barred by the lack of notice, after
finding that the wire height met industry standards.
In the case sub judice, plaintiff was using a 20-foot
metal pole with a spader on the end while on top of the
railroad car. Nies Dep. at 38-39, 44, 47. According to
plaintiff’s expert, plaintiff's pole either touched one of
the power lines or came within about one inch of the
power line somewhere in the last five feet of the 20-foot
long pole. Nies Dep. at 46-48. The power line did not
cross over the railroad track. Nies Dep. at 52-53. Plain-
tiff’s expert based his Opinion on the 1987 NESC stan-
dards, but the standards in effect at the time of the 1993
accident were the 1990 NESC standards. Nies Dep. at 49,
107. Plaintiff’s expert calculated that the actual vertical
clearance of the power line was 26 feet, 7 inches com-
pared to the 1990 NESC standard of 26 feet, 6 inches. Nies
Dep. at 62-63, 128. The evidence shows that the actual
horizontal clearance was 11 feet, 1 inch compared to the
33a
1990 NESC standard of 11 feet, 6 inches [15 feet less than
the vertical clearance standard.] Nies Dep. at 76-77, 66,
127. The evidence shows that the third NESC standard,
the diagonal clearance from the top of the railroad car to
the power line, was 6 feet, 6 inches in 1990 [20 feet less
than the vertical clearance standard] and that clearance
was met. Nies Dep. at 67. The NESC standards are based
on an assumed height of a railroad car of 20 feet but the
railroad car in question was actually less, about 17 feet
high. Nies Dep. at 68-69. Therefore, there was greater
working room atop the railroad car than required by the
NESC standards.
Plaintiff’s expert testified that Georgia Power in-
house standards were higher than NESC standards for
the vertical clearance, at 33 feet. Nies Dep. at 86, 101-102.
He testified that he could not find any specifications in
the in-house manual for horizontal and diagonal clear-
ances so he presumed NESC standards applied. Nies
Dep. at 101-102. Georgia Power's specifications sheets in
evidence show that the 33 feet clearance applies where
power lines cross over railroad tracks and do not show
the applicable clearance where power lines run alongside
the tracks. Distribution Specifications filed July 21, 1995
at p.2.10. Those specifications sheets show that NESC
standards apply in general. Distribution Specifications
filed July 21, 1995 at p.2.01.
The movant for summary judgment must show there
is nO genuine issue of material fact and the undisputed
evidence, when viewed most favorably to the nonmo-
vant, warrants judgment as a matter of law. O.C.G.A.
§ 9-11-56(c); Lau’s Corp. v. Haskins, 261 Ga. 491 (1991). The
defendant may do so by showing an absence of proof of
ESE ENE enon neers at sc nc eroU eT EEN OE TET SE
34a
at least one element of the plaintiff’s case. Lau’s Corp.,
supra. Ordinarily, issues of negligence and proximate
cause are jury questions, but in clear and palpable cases
may be properly decided as a matter of law. Gammage v.
Graham, Case No. A96A0820 (May 1, 1996).
The issue in the case sub judice is whether the power
line was properly located according to the 1990 NESC
which was in effect at the time of the June 1993 accident.
NESC 1990 Edition at 013B1, 013B3. There is no evidence
of improper maintenance, nor that Georgia Power’s in-
house standards for a power line running alongside a
track were different from NESC standards. Based on the
testimony of plaintiff's expert, the power line was not
directly over the railroad car, but approximately 11 feet
oft to the side and more than 26 feet in the air. The NESC
vertical and diagonal standards were met, and the hori-
zontal standard was five inches short of being met. The
key is the diagonal clearance because it was the working
space atop the car where plaintiff was handling the pole,
Plaintiff's evidence shows that the pole cold have come in
contact with, or within one inch of, the power line any-
where within the last five feet of the pole and therefore
fails to show that an additional five inches of horizontal
clearance would have made any difference.
There being no evidence that any negligent location
or maintenance of the power line under either NESC or
Georgia Power in-house standards was a proximate cause
of the incident, this court grants Georgia Power’s motion
for summary judgment.
———————————————
35a
me Plaintiff ‘Ss Motion to C ‘ompel -
In view of this court’s rulings on the motions for
summary judgment, plaintiff's motion to compel discov-
ery from defendant Ashland is moot.
SO ORDERED this 22nd day of July, 1996.
‘s/ Daniel M. Coursey, Jr.
Daniel M. Coursey, Jr.
Judge, DeKalb County
Superior Court
copies sent to:
Hardy Gregory, Esq.
Phillip S. McKinney, Esq.
Robert L. Pennington, Esq.
James M. Poe, Esq.
PRA NY Nene eR R Ce mee ae eee
36a
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
ROY K PRESTON,
Plaintiff, Civil Action File No.
V. 94-7233-7
GEORGIA POWER
COMPANY, NORFOLK
SOUTHERN RAILWAY
COMPANY, and -
ASHLAND CHEMICAL
COMPANY, a division of
Ashland Oil, Inc.,
Defendants.
(Filed Nov. 17, 1994)
The plaintiff in this action was an employee of Pro
Search & Pro Temps, Inc. (“Pro Search”). According to the
allegations in the complaint, he was assigned to work for
defendant Ashland Chemical Inc. (“Ashland”) and on the
day the accident occurred was directed to clean out a
railway car owned by defendant Norfolk Southern Rail-
way Company (“Norfolk”), which was parked on railroad
tracks underneath a high-voltage power line owned by
Georgia Power Company (“Georgia Power”). While
cleaning out the railway car, plaintiff allegedly struck the
power line with the aluminum pole of the brush he was
using. Plaintiff asserts that he was severely shocked,
thrown from the railroad car and suffered severe injuries.
This case is currently before this court on plaintiff's
motion to strike the first defense of Georgia Power and
defendant Norfolk’s motion to add insurance Company
37a
of North America (“INA”) and Pro Search as party plain-
tiffs.
A. Motion to Strike
In its answer to the complaint, Georgia Power raised
a number of defenses. As its first defense, Georgia Power
stated, “Plaintiff’s right to recover damages from this
Defendant is barred by the terms of O.C.G.A. § 46-3-30 et
seq. in that Plaintiff was working within ten feet (10') of a
high voltage line without any notice of such work having
been given to this Defendant or the Utilities Protection
Center.” Plaintiff asserts in his motion to strike that this
defense is not sufficient for several reasons. First, he
argues that the defense is not sufficient because the High-
voltage Safety Act (the “Act”), codified at §§ 46-3-30 et
seq., is a bar only where the power lines are otherwise
properly located and maintained. Second, plaintiff argues
that the defense is insufficient because the circumstances
alleged in the complaint are not within the scope of the
Act or the Act provides a specific exception for the
alleged circumstances. Third, he argues that the defense
is insufficient because Georgia Power already had notice
of the work. Finally, plaintiff argues that the defense
Should be struck because the statute is an unconstitu-
tional violation of both equal protection and due process.
Defendant Georgia Power responded to all of the argu-
ments made in plaintiff's motion.
O.C.G.A. § 9-11-12(f) provides, “[u]pon motion made
by a party within 30 days after the service of the pleading
upon him . . . the court may order stricken from any
pleading any insufficient defense. ...” The law in this
State, however, is very clear that motions to strike are not
38a
favored “[A] motion to strike a defense should not be
granted unless it appears to a certainty that the plaintiff
would succeed despite any state of facts which could be
proved in support of the defense.” Medlin v. Carpenter,
174 Ga. App. 50, 55 (1985). See also, Unigard Ins. Co. v.
Kemp, 141 Ga. App. 698, 699 (1977); West v. Griggs, 144 Ga.
App. 285, 286 (1977); Potpourri of Merrick, Inc. v. Gay
Gibson, Inc., 132 Ga. App. 565, 567 (1974); Wellboum v.
Murphy, 122 Ga. App. 654, 655 (1970). In responding to
the motion, defendant Georgia Power offered several
arguments which, if proved in support of the defense,
would bar plaintiff’s claim under the statute.
In addition to the factual arguments, plaintiff raised a
constitutional challenge to the statute as a violation of
equal protection and due process. Plaintiff first argues
that the statute violates equal protection because the Act
insulates owners and operators of high voltage lines from
liability, which is a special privilege not given to the
owners and operators of other businesses. As Georgia
Power correctly points out, plaintiff does not have stand-
ing to raise an equal protection challenge on this ground.
One who is not injured by this part of the statute cannot
bring an equal protection claim against it. E.g., Davis v.
Shavers, 263 Ga. 785 (1994); C.W. Matthews Contracting Co.
v. Gover, 263 Ga. 108 (1993); Tempo Management v. DeKalb
County, 258 Ga. 713 (1988).
Next, plaintiff argues that the Act violates due proc-
ess for two reasons. First, he argues that the Act is uncon-
stitutional because it eliminates a common law right of
action. This court notes however, that this argument is
completely unsupported by law. For over one hundred
years the United States Supreme Court has held that the
|
x
,
‘
3
a
rc
;
z
39a
Constitution and the due process clause does not forbid
this type of legislative action. See, Duke Power Co. v.
Carolina Env’l Study Group, 438 U.S. 59, 88 n.32 (1978), and
cases cited therein.
Second, plaintiff argues that the Act violates due
process because it gives a utility company the right to
own and operate high-voltage electric lines without also
requiring disclosure to the public as to the voltage in the
electric lines. Plaintiff asserts that because there is no way
for the general public to determine what is and is not a
high-voltage line, the Act is unconstitutional. However,
under Constitutional due process analysis a statute is
sufficiently clear if men of common intelligence need not
guess at its meaning or differ as to its application. See,
Broaderick v. Oklahoma, 413 U.S. 601 (1973); Gouge v. City of
Snellville, 249 Ga. 91, 93 (1982). The High-voltage Safety
Act meets this standard. The Act explicitly defines “high-
voltage lines” as any “electric line or lines installed above
ground level having a voltage in excess of 750 volts
between conductors or from any conductor to ground.”
O.C.G.A. § 46-3-32(1). Simply because the Act does not
impose an affirmative duty on owners or operators to
post notice of the voltage does not mean that the general
public cannot determine whether an electrical line is
“high-voltage.”
For the above reasons, plaintiff's motion to strike is
denied.
B. Motion to Join a Necessary Party
Defendant Norfolk filed this motion to join INA and
Pro Search as “necessary parties” to this action. Briefly,
40a
INA is the workers’ compensation carrier for Pro Search,
plaintiff’s employer at the time of his injury. Defendant
Norfolk argues that under O.C.G.A. § 34-9-11.1, INA and
Pro Search may have a right of subrogation against Nor-
folk for workers’ compensation benefits paid to plaintiff.
In addition, Norfolk attached a copy of the notice of
INA’s lien in this case for $318,183.46 plus any future
benefits paid to plaintiff. Because INA and Pro Search
may have rights against Norfolk it argues that they are
necessary parties and Norfolk cannot obtain complete
relief in this action without their presence as plaintiffs.
The motion is denied. Under this Code section, the
right of action belongs to the injured employee or his
heirs, and the employer or insurance carrier “shall have a
subrogation lien” against the employee for any recovery
made in any cause of action. O.C.G.A. §§ 34-9-11.1(a) and
(b). If the employee fails to bring the action within one
year, however, that failure “shall operate as an assign-
ment to the employer or such employer’s insurer of any
cause of action in tort which the injured empley-
ee... may have against any other person for such injaTy
or death...” In the latter situation, the employer or
insurance carrier would have claims against any defen-
dant in tort, including Norfolk in this action.
In the present case, the alleged injury occurred on
June 22, 1993, and this action was filed on June 14, 1994,
within the one year period of limitations. Since this action
was filed within one year, INA and Pro Search’s right to
subrogation is against plaintiff, and defendant Norfolk’s
rights will not be affected by the subrogation lien filed by
INA. For the above reasons, this court finds that Nor-
folk’s rights can be fully adjudicated without the addition
4la
of INA or Pro Search, and
parties is denied.
SO ORDERED this 14th day of November, 1994.
/s/
copies sent to:
Edgar A. Neely, Jr., Esq.
Hardy Gregory, Jr., Esq.
John M. Hyatt, Esq.
Robert L. Pennington, Esq.
Phillip S. McKinney Esq.
the motion to join necessary
Daniel M. Coursey, Jr.
Daniel M. Coursey, Jr.
Judge, DeKalb County
Superior Court
42a
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
ROY K. PRESTON,
Plaintiff,
arent Case No. 94-7233-7
V.
GEORGIA POWER COMPANY
and GEORGIA SOUTHERN
AND FLORIDA RAILWAY
COMPANY,
Defendants.
Ne ee ee ee ee eee ee”
PLAINTIFF’S MOTION TO STRIKE THE FIRST
DEFENSE OF DEFENDANT GEORGIA
POWER COMPANY
COMES NOW plaintiff and moves the Court pur-
suant to O.C.G.A. § 9-11-12(f) to strike the first defense of
defendant Georgia Power Company and respectfully
shows to the Court as follows:
As
The first defense raised by defendant Georgia Power
Company is as follows: “Plaintiff's right to recover dam-
ages from this Defendant is barred by the terms of
O.C.G.A. § 46-3-30 et seq. in that Plaintiff was working
within ten feet (10') of a high voltage line without any
notice of such working having been given to this Defen-
dant or the Utilities Protection Center.”
Said defense is an insufficient defense for if the stat-
ute upon which it is based is applied to the circumstances
alleged in the complaint in this case, it is unconstitutional
under the federal and state constitutions in that it denies
equal protection of law and due process of law.
This 1 day of August, 1994.
DAVIS, GREGORY, CHRISTY &
FOREHAND
By: /s/ Hardy Gregory, Jr.
HARDY GREGORY, JR.
State Bar No. 310100
By: /s/ Gary C. Christy
GARY C. CHRISTY
State Bar No. 125525
By: /s/ David A. Forehand, Jr.
DAVID A FOREHAND, JR.
State Bar No. 006860
Post Office Drawer 5230
Cordele, Georgia 31015
[912] 273-7150
HYATT & HYATT, P.C.
By: /s/ John M. Hyatt
JOHN M. HYATT
Ww. permission HG]
State Bar No. 381350
Suite 201 Trust Building
5945 North McDonough St.
Decatur, Georgia 30030
[404] 378-3635
44a
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
ROY K. PRESTON,
Plaintiff, Case No. 94-7233-7
Ve
GEORGIA POWER COMPANY
and GEORGIA SOUTHERN
AND FLORIDA RAILWAY
COMPANY,
Defendants.
ee
BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO
STRIKE THE FIRST DEFENSE OF DEFENDANT
GEORGIA POWER COMPANY
* + *
It is a denial of due process of law for the Georgia
statutes to confer upon a utility company the right to own
and operate high voltage power lines which are an undis-
closed peril and at the same time require those who are
unaware of the undisclosed peril to give notice that they
are in close proximity to the undisclosed peril. The High
Voltage Act applies only where the line has a voltage in
excess of 750 volts between conductors or from conductor
to ground. O.C.G.A. § 46-3-32(1) There are many, many
power lines all across this state and some of them are
high voltage lines and many of them are not. The public
simply has no way of knowing which are which. The
peril of high voltage is thus undisclosed by the utility
companies to the public. To require someone to give
notice that he is in proximity to an undisclosed: peril
45a
denies due process of law. Perhaps the statute could be
corrected to require the utility company to post reason-
able and adequate warning that the line is a high voltage
line and that notice of any work to be done within ten
feet of the line must be given. To expect the public at
large to know which lines are high voltage lines and
which-are not is unreasonable to such an extent as to
deny due process of law. Cf. Davis v. City of Peachtree City,
251 Ga. 219(1), 304 S.E.2d 701 (1983).
DAVIS, GREGORY, CHRISTY &
FOREHAND
By: /s/ Hardy Gregory, Jr.
HARDY CRECORY, JR.
State Bar No. 310100
By: /s/ Gary C. Christy
GARY C. CHRISTY
State Bar No. 125525
By: /s/ David A. Forehand, Jr.
DAVID A FOREHAND, JR.
w. permission HG]
State Bar No. 006860
Post Office Drawer 5230
Cordele, Georgia 31015
[912] 273-7150
HYATT & HYATT, P.C.
By: /s/ John M. Hyatt
JOHN M. HYATT
State Bar No. 381350
Suite 201 Trust Building
545 North McDonough St.
Decatur, Georgia 30030
[404] 378-3635
4
4
46a
IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
ROY K. PRESTON, )
si Tg
Plaintiff, ) ClvIL ACTION FILE
)
vs. ) NO. 94-7233-7
GEORGIA POWER COMPANY, }
NORFOLK SOUTHERN
RAILWAY COMPANY and
)
)
)
ASHLAND CHEMICAL, INC.,
Defendants.
CERTIFICATE OF IMMEDIATE REVIEW
(Filed Nov. 23, 1994)
This Court having denied Plaintiff Roy K. Preston’s
Motion to Strike certain defenses raised by Georgia
Power Company by Order dated November 17, 1994,
now, and within ten (10) days of the entry of such Order,
pursuant to O.C.G.A. Section 5-6-34, the Court hereby
certifies that the Order is of such importance to the case
that immediate review should be had, and that direct
appeal is proper.
This the 23rd day of Nov., 1994.
/s/ Daniel M. Coursey, Jr.
Daniel M. Coursey, Jr., Judge,
Superior Court/Stone Mountain
Judicial Circuit
Submitted By:
/s/ John M. Hyatt
John M. Hyatt
GA Bar No. 381350
Attorney for Plaintiff
47a
SUPREME COURT OF GEORGIA
Case No. $9510405 Atlanta, January 3, 1995
The Honorable Supreme Court met pursuant to
adjournment.
The following order was passed:
ROY K. PRESTON V. GEORGIA POWER COMPANY et
al.
From the Superior Court of DEKALB County.
Upon consideration of this Application for Interlocu-
tory Appeal, it is ordered that it is hereby denied.
All the Justices concur, except Hunt, C. J., and
Thompson, J., who are disqualified.
[SEAL]
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I hereby certify that the above is a true extract from
the minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
/s/ Lynn M. Stinchcomb, Chief Deputy Clerk.
48a
IN THE SUPREME COURT
STATE OF GEORGIA
ROY K. PRESTON, (
Appellant, :
v. ) NO. $97A0022
GEORGIA POWER COMPANY, _ )
NORFOLK SOUTHERN )
RAILWAY COMPANY, and i
ASHLAND )
CHEMICAL COMPANY, ‘
)
Appellees. )(
BRIEF OF APPELLANT
HARDY GREGORY, JR.
Georgia Bar No. 310100
DAVIS, GREGORY, CHRISTY & FOREHAND
708 Sixteenth Avenue, East
Post Office Drawer 5230
Cordele, Georgia 31010
(912) 273-7150
JOHN M. HYATT
State Bar No. 381350
HYATT & HYATT, P.C.
Suite 201 Trust Building
545 North McDonough St.
Decatur, Georgia 30030
(404) 378-3635
Attorneys for Appellant
49a
RECEIVED BY HAND DELIVERY
AND FILED:
OCT. 04, 1996
/s/ Jan Eidson
SUPREME COURT OF GEORGIA
* * *
The constitutional tlaw in the statute is that it has no
requirement that the utilit;; company identify which of its
lines are high voltage lines. Of the thousands of lines
criss-crossing the state, some are high voltage and some
are not. The public has no way of knowing the difference
by looking at the lines themselves. The lines involved in
this case were not identified as high voltage lines. (R.
1289-1291. Dep. Straka, pp. 63-65; R. 902. Dep. Perkins, p.
31) If one does work near a power line that has a voltage
of 750 or less the statute is not violated, no crime is
committed and liability is not removed from the utility
company. If one does work within ten feet of a line
having a voltage above 750 these criminal and civil penal-
ties exist under the statute. But the difference between
high voltage and non high voltage lines is not apparent to
the public. It is entirely arbitrary from the standpoint of
the public whether a line is high voltage or not. Thus the
statute is unreasonable, arbitrary and capricious. The
simple solution would be for the statute to require the
utility to identify its high voltage lines. It is not a suffi-
cient answer to impose a duty on the public to determine
who is the owner of the line and track that entity down
and wait for information regarding the voltage of a given
line when it would be so easy to identify the line when it
50a
is installed. The law is unreasonable and arbitrary with-
out some notification of which lines are high voltage
lines
Sla
IN THE SUPREME COURT OF GEORGIA
ENUMERATIONS OF ERROR
* « *
2. The trial court erred in granting summary judg-
ment to Georgia Power Company. (R. 2056. Order) Prior
to granting summary judgment the trial court erred in
denying Plaintiff’s Motion to Strike. (R. 201. Order deny-
ing Motion to Strike)
* + *
52a
[LOGO] SUPREME COURT OF GEORGIA
‘ Case Nos. S97A0022
S97A0024
Atlanta December 2, 1996
The Honorable Supreme Court met pursuant to
adjournment.
The following order was passed
ROY K. PRESTON v. GEORGIA POWER COMPANY et al.
INSURANCE COMPANY of NORTH AMERICA vy.
GEORGIA POWER COMPANY et al.
From the Superior Court of DeKalb County.
Because the issue on which the trial court granted
summary judgment in these cases does not fall within the
jurisdiction of this Court, the appeals are hereby trans-
ferred to the Court of appeals. All the Justices concur,
except Sears, J., who dissents.
[SEAL]
SUPREME COURT OF
THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true
extract from the Minutes of the Supreme
Court of Georgia.
Wiiness my signature and the seal of
said court Hereto affixed the day and
year last above written.
/s/ Lynn M. Stinchcomb,
Chief Deputy Clerk
53a
IN THE SUPREME COURT
STATE OF GEORGIA
ROY K. PRESTON, )(
Petitioner. :
V. NO. F97C1845
GEORGIA POWER COMPANY, _ ’!
and ASHLAND CHEMICAL M
COMPANY, ‘
Respondents. Y
PETITION FOR CERTIORARI
DAVIS, GREGORY,
CHRISTY & FOREHAND
By: /s/ Hardy Gregory, Jr.
HARDY GREGORY, JR
State Bar No. 310100
P.O. Drawer 5230
Cordele, Georgia 31015
(912) 273-7150
HYATT & HYATT P.C.
By: /s/ John M. Hyatt
Ww. permission HG
JOHN M. HYATT
State Bar No. 381350
Suite 201 Trust Building
545 North McDonough St.
Decatur, Georgia 30030
(404) 378-3635
54a
IN THE SUPREME COURT
STATE OF GEORGIA
ROY K. PRESTON. (
Petitioner, :
V. ) NO.
GEORGIA POWER COMPANY. _ )
and ASHLAND CHEMICAL )(
COMPANY, ?
Respondents. )(
PETITION FOR CERTIORARI
* * *
Preston has been unable to obtain a review of his consti-
tutional challenge, twice made in the trial court, against
the statute that the Court of Appeals has used to destroy
his claim.
+ * *
[He challenged] the failure of the statute to require
the utility to identify its high-voltage lines so that per-
SOns are aware and can give notice of work to be com-
menced. This raised a due process argument.
+ * *
This issue did not become ripe for a constitutional
challenge until the Court of Appeals held in the opinion
now being challenged that Preston must give notice.
* * *
55a
Official Code of Georgia Annotated
46-3-30. Short title.
This part shall be known and may be cited as the
“High-voltage Safety Act.” (Code 1981, § 46-3-30, enacted
by Ga. L. 1992, p. 2141, § 1.)
46-3-31. Purpose of part.
The purpose of this part is to prevent injury to per-
sons and property and interruptions of utility service
resulting from accidental or inadvertent contact with
high-voltage electric lines by providing that no work
shall be done in the vicinity of such lines unless and until
the owner or operator thereof has been notified of such
work and has taken one of the safety measures prescribed
in this part.
46-3-32. Definitions.
As used in this part, the term:
(1) “High-voltage lines” means an electric line or
lines installed above ground level having a voltage in
excess of 750 volts between conductors or from any con-
ductor to ground.
(2) “Notice” means actual notification given to the
center.
(3) “Person responsible for the work” means the
person actually doing the work as well as any person,
firm, or corporation who employs and carries on his
payroll any person actually doing the work or who
employs a subcontractor who actually does the work;
56a
(4) “Utilities protection center” or “center” means
the corporation or other organization formed by utilities
which receives advance notifications regarding work and
distributes such notifications to its utility members.
(5) “Utility” means any person operating or main-
taining high-voltage lines within the state.
(6) “Work” means the physical act of performing or
preparing to perform any activity under, over, by, or near
high-voltage lines, including, but not limited to, the oper-
ation, erection, handling, storage, or transportation of
any tools, machinery, ladders, antennas, equipment, sup-
plies, materials, or apparatus or the moving of any house
or other structure whenever such activity is done by a
person or entity in pursuit of his trade or business.
46-3-33. Required conditions for commencing work
within ten feet of high-voltage line.
No person, firm, or corporation shall commence any
work as defined in paragraph (6) of Code Section 46-3-32
if at any time any person or any item specified in para-
graph (6) of Code Section 46-3-32 may be brought within
ten feet of any high-voltage line unless and until:
(1) The person responsible for the work
has given the notice required by Code Section
46-3-34; and
(2) The owner or operator of such high-
voltage line has effectively guarded against dan-
ger from accidental contact by either deenergiz-
ing and grounding the line, relocating it, or
ene
57a
installing protective covering or mechanical bar-
riers, whichever safeguard is deemed by the
owner or operator to be feasible under the cir-
cumstances.
46-3-34. Utilities protection center; funding of activ-
ities; notice of work; delay; responsibility for
completing safety requirements.
* * *
(b) Where work is to be done, the person responsi-
ble for such work shall give notice to the utilities protec-
tion center during its regular business hours at least 72
hours, excluding weekends and holidays, prior to com-
mencing such work and such notice shall:
(1) Describe the tract or parcel of land
upon which the work to be done is to take place
with sufficient particularity to enable the owner
or operator of the high-voltage lines to ascertain
the precise tract or parcel of land involved;
(2) State the name, address, and telephone
number of the person who will be in charge of
the work;
(3) Describe the type of work to be
engaged in by the person; and
(4) Designate the date upon which the
work will commence and will be completed.
(c) After receipt of the notice required by subsection
(b) of this Code section, the owner or operator of the
high-voltage line shall contact the person whose name is
given as required by paragraph (2) of subsection (b) of
this Code section within a reasonable time, so that appro-
priate satisfactory arrangements can be made for the
58a
completion of the safety precautions required by Code
Section 46-3-33, including coordination of work schedules
and payment of costs required to effect such safety pre-
cautions. Upon completion of such arrangements, the
owner or operator of such high-voltage line shall effect
such safety precautions within a reasonable time.
* * *
46-3-39. Restriction on liability of owners and opera-
tors of high-voltage lines; effect of part on
duty or decree [sic] of care.
(a) The owner or operator of high-voltage lines
shall not be liable for damage or loss to person or prop-
erty resulting from work within ten feet of high-voltage
lines unless notice has been given as required by Code
Section 46-3-34 and the owner or operator of the high-
voltage line has failed to comply with the provisions of
Code Section 46-3-33.
(b) Except as provided in subsection (a) of this
Code section, nothing in this part shall be construed or
applied so as to limit or reduce the duty or degree of care
applicable to owners or operators of high-voltage lines
with respect to damage or loss to person or property.
46-3-40. Criminal penalty; strict liability for injury or
damage; indemnification; liability for cost of
delay.
(a) Any person responsible for the work who vio-
lates any of the provisions of this part shall be guilty of a
misdemeanor and, upon conviction thereof, shall be liable
59a
for a fine of $1,000.00 for a first offense and $3,000.00 for
a second or subsequent offense.
(b) Any person responsible for the work who vio-
lates the requirements of Code Section 46-3-33 and whose
subsequent activities within the vicinity of high-voltage
lines result in damage to utility facilities or result in
injury or damage to person or property shall be strictly
liable for said injury or damage. Any such person shall
also indemnify the owner or operator of such high-volt-
age lines against all claims, if any, for personal injury,
including death, property damage, or service interrup-
tions, including costs incurred in defending any such
claims resulting from work in violation of Code Section
46-3-33.
(c) In the event the owner or operator of the high-
voltage line fails to effect the safeguards required by
Code Section 46-3-33 within a reasonable time after notice
is given and appropriate arrangements are made pur-
suant to Code Section 46-3-34, such owner or operator
shall be liable for the reasonable costs incurred by any
such delay.
60a
In the Supreme Court of Georgia
Decided: FEB 23 1998
S97A2055, SANTANA et al. v. GEORGIA POWER CO. et al.
BENHAM, Chief Justice.
3. Appellants maintain their due process rights
were violated because the HVSA does not require the
owner or operator of power lines to advise the public that
a particular line is high-voltage, thus making the Act so
vague as to be unconstitutional. A statute violates due
process if it is so vague that persons of common intel-
ligence must necessarily guess at its meaning and differ
as to its application. Fisch v. Randall Mill Corp., 262 Ga.
861(1) (426 SE2d 883) (1993); Sliney v. State, 260 Ga. 167
(391 SE2d 114) (1990). The language of the HVSA is clear
and unambiguous in its requirement that notice be given
before work is commenced in proximity to high-voltage_
lines, and in its provision that lack of such notice insu-
lates the owner of the lines from liability. Although per-
sons of common intelligence may not be sure which
power lines qualify as “high-voltage lines,”? and may
have to ask to find out, there is no doubt engendered by
the statute about the necessity of giving notice prior to
working in proximity to such lines or about the effect of
2 OCGA § 46-3-32(1): “High-voltage lines” means an
electric line or lines installed above ground level having a
voltage in excess of 750 volts between conductors or from any
conductor to ground.
6 l a
failing to give the notice. Thus, persons of common intel-
ligence need not guess at the meaning of the statute and,
once in possession of the necessary facts, should not
differ as to its application. We conclude, therefore, that
appellants’ vagueness attack on the statute is without
merit.
ee
62a
[SEAL] SUPREME COURT OF GEORGIA
Case No. $97C1845
Atlanta May 29, 1998
The Honorable Supreme Court met pursuant to
adjournment.
The following order was passed:
ROY K. PRESTON v. GEORGIA POWEK COMPANY et al.
This Court hereby certifies that Petitioner Roy K.
Preston raised in this Court, and this Court considered,
the issue of whether the immunity provisions of the
Georgia High Voltage Safety Act, OCGA 46-3-30 et seq.,
violate the due process guarantee of the Fourteenth
Amendment to the United States Constitution. It was the
judgment of this Court that the challenged provisions of
the Georgia High Voltage Safety Act do not violate the
federal constitutional due process clause. See also Santana
v. Georgia Power Co., 269 Ga. 127 (__ SE2d ___) (1998).
All the Justiccs concur, except Fletcher, P.J., Carley
and Hines, JJ., who dissent.
[SEAL]
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I hereby certify that the above is a true extract
from The minutes of the Supreme Court of Georgia
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
/s/ Lynn M. Stinchcomb, Chief Deputy Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.