dissenting:
Although I agree with the panel decision in all matters that affirm the trial court, I respectfully dissent from the result finally reached.
*323As I understand it, the Court reverses the district court on this reasoning: C. L. Osborn Contracting Company incorporated in its contract the OSHA and CWHSSA regulations as a convenient set of construction guidelines for this work; the failure to follow these guidelines caused the ¿ccident; although an employer is generally not responsible for the torts committed by an independent contractor [Ga.Code Ann. § 105-501], the employer is liable “if the wrongful act is the violation of a duty imposed by express contract upon the employer” [Ga.Code Ann. § 105-502(3)]; since the failure to follow the guidelines was a “wrongful act” and violated the duty imposed by contract, the employer is liable. I disagree that the beneficiary of this contractually grounded liability can be the employee of the subcontractor who undertook to perform the work under the contract.
In this case, the entire section of the construction project was subcontracted to Horn’s employer, Bama Utility Contractors, Inc. Bama Utility undertook all facets of the work, including the digging of the trenches which allegedly caused its employee’s injuries. To permit an employee of a subcontractor to recover against the general contractor because the subcontractor improperly performed its contract with the general contractor seems to me to fly in the face of settled jurisprudence in this field of law. This is not a case where Osborn has been called upon to respond in damages for negligence to either the owner, with which it contracted, or any third party injured by the work. The claimant, rather, is one who was at all times subject to the immediate and exclusive supervision and control of the party whose dereliction of duty caused his injury. Osborn’s own employees, if they had been doing the work, would be limited to workmen’s compensation benefits. Why should the employees of a subcontractor who has undertaken all of the work on this section be in any better position?
The fallacy of the result here reached would be starkly presented if Horn were the subcontractor, a sole proprietor, doing all the work himself. If he did not perform according to the contract’s safety requirements and was injured thereby, his suit against the general contractor would be based on the theory that his own failure to properly do the work was a breach of contract between the general contractor and the owner.
None of the cases cited even remotely suggests that an employee of an independent contractor is a person within the scope and protection of the statute’s protection contained in Ga.Code Ann. § 105-502(3) and I am unwilling to interpret that provision to reach such an anomalous result. I would affirm the district court across the board.