Ga. Power Co. v. Campbell

360 Ga.App. 422

861 S.E.2d 255

GEORGIA POWER COMPANY

v.CAMPBELL et al.

A21A0462

Court of Appeals of Georgia.

June 30, 2021

William Middleton Droze, Jill Cox Kuhn, Atlanta, Kathryn Elise Hopkins, Katarzyna Anna Hebda, for Appellant.

Robert Cape Buck, Peachtree Corners, Frank Wathen, for Appellee.

Markle, Judge.

Colen Campbell developed mesothelioma after working as an insulator at the Edwin I. Hatch nuclear power plant in the 1970s. In 2017, he and his wife (collectively "the plaintiffs") sued Georgia Power Company, as the owner of the Hatch nuclear plant, alleging premises liability, loss of consortium, and punitive damages.¹ The trial court granted in part and denied in part Georgia Power's motion for summary judgment, limiting the claims to those arising from exposure to asbestos at the Hatch plant in 1973 to 1974. The trial court also denied Georgia Power's motions to exclude the testimony of two of the plaintiffs’ expert witnesses, Drs. Brody and Holstein, on the issue of causation. The trial court certified its orders for immediate review, and we granted interlocutory review. Georgia Power now appeals, arguing that the trial court erred in denying its motion to exclude the experts and by denying in part its motion for summary judgment because (1) it owed no duty to Campbell, as it had ceded possession and control over the plant; (2) the expert testimony was not admissible under OCGA § 24-7-702, and, in the absence of any expert testimony, the plaintiffs failed to establish causation; and (3) the statute of repose in OCGA § 9-3-51 bars all claims. After a thorough review of the record, we affirm the trial court's order admitting Dr. Brody's expert testimony and denying summary judgment with regard to Georgia Power's duty to Campbell; we vacate the trial court's orders admitting Dr. Holstein's expert testimony and denying in part the motion for summary judgment as to the statute of repose issue; and we remand the case for further proceedings.²

"On appeal from a trial court's grant or denial of summary judgment, our review of the record is de novo, and we construe the facts and all inferences drawn from them in the light most favorable to the nonmoving party." (Citation and punctuation omitted.) Centurion Indus., Inc. v. Naville-Saeger , 352 Ga. App. 342, 343, 834 S.E.2d 875 (2019).

So viewed, the record shows that Campbell was a member of the insulators union and worked for several insulating companies including North Brothers starting in 1965. In the early-1970s, North Brothers contracted with Georgia Power to handle the removal and installation of insulation at the Hatch nuclear power plant, and Campbell was assigned to the job.

As part of Campbell's work at the Hatch plant, he used insulation and materials containing asbestos, and he was exposed to asbestos via dust particles as he removed existing insulation. During the time he worked at the Hatch plant in the mid-1970's, Campbell was not provided with any safety gear, nor was he told to wear a mask while around the insulation dust.³

After he was diagnosed with mesothelioma, Campbell and his wife filed at least one other suit arising from exposure to asbestos before filing the instant suit. In support of their claims here, and to establish that the asbestos at the Hatch plant caused Campbell's illness, the plaintiffs submitted expert testimony from Drs. Kradin, Brody, and Holstein. Georgia Power sought to exclude these experts on the grounds that they lacked the proper qualifications to render expert opinions; their testimony was not relevant; and their theories and methods were unreliable. They also moved for summary judgment, arguing that they did not owe Campbell any duty because he was North Brothers's employee; Campbell failed to establish causation; and the claims were barred by the statute of repose in OCGA § 9-3-51.

Following a set of hearings, the trial court excluded Dr. Kradin's testimony, but admitted Dr. Holstein's testimony, and allowed Dr. Brody to testify only to general causation issues.⁴ It then granted in part and denied in part the motion for summary judgment, limiting Campbell's claims to those arising from exposure at the Hatch plant between 1973 and 1974. The trial court issued a certificate of immediate review, and we granted the application for interlocutory review. This is Georgia Power's appeal.

1. In its first enumeration of error, Georgia Power argues that it was entitled to summary judgment because it owed no duty to Campbell under McClure v. Equitable Real Estate Investment Management, Inc. , 195 Ga. App. 54, 392 S.E.2d 272 (1990), once it relinquished control and possession of the plant to North Brothers. It contends that the plaintiffs failed to raise a question of fact regarding its possession and control, and it notes that North Brothers, as a sophisticated contractor, was aware of the dangers of asbestos prior to the dates of Campbell's alleged exposure at the Hatch plant. We conclude that the trial court properly found that there were questions of fact that precluded summary judgment.

In Georgia

[i]t is well settled that an owner or occupier of land is liable in damages to invitees who come upon his land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe.... Under this principle is found the duty of an owner of premises to an individual contractor and his employees who lawfully come upon the premises in the performance of a contract between the owner and the contractor because the independent contractor and his employees are invitees. Thus, an owner having work done on his premises by an independent contractor, who has actual or constructive knowledge of potential dangers on the premises, owes a duty to the contractor to give warning of, or use ordinary care to furnish protection against, such dangers to the contractor and his employees who are without actual or constructive notice of the dangers, and which could not be discovered by them in the exercise of ordinary care.

(Citation and punctuation omitted.) West v. Briggs & Stratton Corp. , 244 Ga. App. 840, 844, 536 S.E.2d 828 (2000).

In the context of an invitee who is an independent contractor, we have set out a two-prong test under McClure , 195 Ga. App. at 55, 392 S.E.2d 272, to establish the property owner's liability. As we explained,

[a]lthough property owners owe a duty to their own invitees, they owe no such duty to employees of or others invited upon the premises by an independent contractor hired to do work on the premises if two conditions exist: 1) the owner has relinquished possession of the premises, in whole or in part and 2) the owner does not have the right and does not actually control or direct the work done.

(Citation omitted.) Law v. Chemtall , 342 Ga. App. 374, 376, 802 S.E.2d 408 (2017) ; see also McClure , 195 Ga. App. at 55, 392 S.E.2d 272. Therefore, Georgia Power owed a duty to Campbell, as an employee of the independent contractor, only if Campbell could show that Georgia Power met both prongs of the McClure test. Notably, although there is some overlap in the relevant facts, retaining control over the work and relinquishing possession of the premises are two distinct questions. West , 244 Ga. App. at 846, 536 S.E.2d 828.

In deciding this question, we are mindful that "[t]he ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff's lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and summary judgment is granted only when the evidence is plain, palpable, and undisputed." (Citation omitted.) Mullinax v. Pilgrim's Pride Corp. , 354 Ga. App. 186, 196 (3) (a), 840 S.E.2d 666 (2020). With these standards in mind, we turn to the merits of the McClure test.

"Possession" is defined as "having personal charge of or exercising the rights of management or control over the property in question." (Citation omitted.) Law , 342 Ga. App. at 376, 802 S.E.2d 408. In other words, the focus is on custody and control, and generally includes the "ability to control access to the premises and exclude others therefrom." West , 244 Ga. App. at 846, 536 S.E.2d 828. And, under our case law, the owner does not have to relinquish control over the entire property; it is sufficient if the owner surrenders possession and control over some portion of the property. See Hess v. Textron Automotive Exteriors , 245 Ga. App. 264, 265 (2), 536 S.E.2d 291 (2000) ; see also Mullinax , 354 Ga. App. at 198 (3) (b), 840 S.E.2d 666.

Here, the contract between Georgia Power and North Brothers specified that: North Brothers (a) provided all supervision, workers, and materials to install the insulation; (b) maintained safe conditions and adhered to all applicable safety laws and any of Georgia Power's other regulations; (c) indemnified Georgia Power from any claims, including injury or wrongful death, arising from the work; (d) was required to have a foreman or supervisor on site to handle any issues that arose and to use skilled and qualified workers; and (e) gave the workers their assignments, trained them, provided materials for the job, supervised them, paid them, and controlled the work. As to Georgia Power, the contract provided that it would (a) determine the type of materials to be used, and modifications were not permitted without its approval; (b) retain the right to have its inspectors review the work and to establish rules and regulations for performance and safety; (c) have the right to "designate the space to be occupied by the several Contractors, and to supervise the use of all space at all times during the progress of the work;" (d) retain the right to have workers dismissed if the work was substandard; and (e) have its employees oversee the insulators and control their access to the work site. In addition, the contract between Georgia Power and North Brothers required Georgia Power to keep a copy of all purchase orders,...