Wooten v. Central Georgia Electric Membership Corp.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the majority invades the province of the jury by concluding, as a matter of law, that Central Georgia Electric Membership Corporation (“Central Georgia”) “could not reasonably have expected Wooten to come into contact with its [high voltage power] wire.”

“ ‘It is elementary that one maintaining high tension lines must do so in such a manner and at such a location as not to injure persons who might be reasonably expected to come in contact with such lines. . . .’ Carden v. Ga. Power Co., 231 Ga. 456 (202 SE2d 55) (1973).” Three Notch EMC v. Bush, 190 Ga. App. 858 (1) (380 SE2d 720). In the case sub judice, Wooten testified that he did not notice a power wire before his injury and that he moved his truck less than five feet in the delivery area of the grain bin before the vehicle’s grain auger contacted Central Georgia’s power wire. Wooten also testified that he visited the accident site after his injury and noticed that Central Georgia’s power wire was not conspicuous (i.e., it was as slim as a “pencil”); that the power line had no warning markers and that the wire remained near the loading area of the grain bin. It is my view that this testimony and evidence that Central Georgia had actual or constructive knowledge that large agricultural equipment frequently operated in the area of its power transmission wire raises genuine issues of material fact as to whether Central Georgia was negligent in suspending a power transmission wire over the delivery area of a grain bin at Sprayberry Dairy Farm. However, the majority ignores these facts and concludes, as a matter of law, that Central Georgia “could not reasonably have expected Wooten to come into contact with its *293high voltage power] wire.”

“On a defendant’s motion for summary judgment, the evidence is construed in the respondent’s favor; the respondent is given the benefit of all doubts and all reasonable inferences therefrom are indulged in [his] favor. The burden is on the movant to show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761, 762 (403 SE2d 65). Where the movant fails in that burden, the grant of summary judgment is error. 944, Inc. v. Ga. State Bank, 198 Ga. App. 893, 894 (403 SE2d 466). But where the movant carries this burden, the respondent may not rest on [his] pleadings but must put forth evidence showing actual issues for trial. (Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474)).” Moore v. Food Assoc., 210 Ga. App. 780, 781 (1) (437 SE2d 832).

In the case sub judice, Central Georgia did not produce a scrap of evidence that its power wire was properly suspended so that large agricultural machinery would not reasonably be expected to come into contact with it. Central Georgia did not even produce specific evidence regarding the location of its power wire at Sprayberry Dairy Farm. The only testimony offered by Central Georgia in this regard was from James Henderson, a Central Georgia serviceman, who testified that the grain bin at Sprayberry Dairy Farm was “way away from the [power] line.” The majority relies on this nebulous conclusion and the deposition testimony of Wooten’s expert witness, James B. Roberts, to support a finding that Central Georgia maintained its power wire within guidelines of the National Electrical Safety Code. This reliance is unfounded.

Neither Henderson nor Roberts offered testimony regarding specific distances or heights of Central Georgia’s power wire at Sprayberry Dairy Farm. Further, neither witness gave testimony as to industry clearance standards for installation and maintenance of a power transmission line, much less guidelines for maintaining a power transmission line near a large agricultural operation. Nonetheless, the majority insists that this Court’s recent holding in Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99 (432 SE2d 675), is “indistinguishable” with respect to proof of compliance with “industry clearance standards.” I do not agree with this statement and find that the only “indistinguishable” features in Brown and the case sub judice are plaintiffs who were electrocuted by EMC power transmission wires.

In Brown, the plaintiff “admitted, and his expert . . . testified, that the primary wire met industry clearance standards.” Id. at 100 (1). In the case sub judice, Wooten does not admit that Central Georgia maintained its power wire at Sprayberry Dairy Farm in compliance with “industry clearance standards” and his expert (Roberts) testified that he neither checked the “design” of power wire in ques*294tion, nor measured distances relevant to Central Georgia’s compliance with any electrical safety standards. Roberts merely testified that he “would not anticipate finding [any safety code violation].” This testimony reveals that Roberts had no first-hand knowledge of Georgia Central’s compliance, vel non, with “industry clearance standards.” Consequently, Roberts’ speculative testimony that Central Georgia maintained its power wire within guidelines prescribed by the National Electrical Safety Code is nonprobative hearsay. See Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2) (390 SE2d 257). However, assuming the contrary, it is my view that proof of compliance with a safety code clearance standard is insufficient to prove, as a matter of law, that one maintaining a power line has done so in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with the wire. I believe that this controlling issue is a question of foreseeability upon which reasonable minds might differ and that the case sub judice must therefore be resolved by the factfinder, not a court on summary adjudication. My conviction on this issue is supported “[i]n numerous cases involving injuries caused by electric shock from power lines, [where] this court has held that the foreseeability of the plaintiffs’ acts leading to injury was a jury question regarding which reasonable minds might differ. E.g., Three Notch EMC v. Bush, 190 Ga. App. 858, 859 (1) [, supra] (two employees of commercial grain operation electrocuted while moving grain auger when auger struck power line); Habersham EMC v. Dalton, 170 Ga. App. 483 (317 SE2d 312) (1984) (farmer used hoe attached to conduit pipe to clean chicken feed bin, causing injury when tool struck overhead power line); Collins v. Altamaha EMC, 151 Ga. App. 491 (260 SE2d 540) (1979) (workers driving farm equipment injured when they negligently struck guy wire securing utility pole); Gilbert v. Ocmulgee EMC, 100 Ga. App. 638 (112 SE2d 207) (1959) (farmer injured when long pipe used to clean electric pump in well struck power line).” Buckner v. Colquitt EMC, 206 Ga. App. 69, 70 (424 SE2d 299).

Finally, I observe that the record simply does not support the majority’s final tag that Wooten’s “injuries were the direct result of his failure to exercise ordinary care for his own safety. . . .” The majority bases this conclusion on the premise that Wooten observed a warning sign posted on the control panel of his grain delivery truck. However, this premise is refuted by Wooten’s deposition testimony that he never observed such a sign on the control panel of his truck and that if such a sign was present, “it could have been covered up with crud.” In fact, there is not any probative evidence supporting the majority’s assertion that a warning sign was posted on the delivery truck Wooten was operating at the time of the accident. James B. Roberts testified that he examined a grain delivery truck at Wooten’s *295place of employment sometime after Wooten’s accident; that he was informed by another that this was the truck Wooten operated on the day of the accident and that this truck displayed a sign with the following warning: “Do not operate near electrical lines.” However, there is no proof that Roberts had first-hand knowledge that this warning sign was attached to the truck when Wooten was injured or that the truck he examined was the vehicle Wooten operated on the day of the accident. Consequently, Roberts’ testimony that he observed a warning sign on a truck said to be operated by Wooten at the time Wooten was injured is hearsay, and hearsay, even when admitted without objection, lacks probative value to establish any fact. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169, 171 (2), supra.

Decided July 15, 1994 Reconsideration denied July 29, 1994 William R. McCracken, for appellant. Haygood, Lynch, Harris & Melton, C. Robert Melton, for appel-lee.

I am authorized to state that Chief Judge Pope and Judge Blackburn join in this dissent.