Kull v. Six Flags Over Georgia II, L.P.

Smith, Presiding Judge,

dissenting.

I respectfully dissent. It is certainly regrettable that Kull was injured, but his injury was not attributable to Six Flags. As Kull was changing a light bulb without turning off the power and without using a circuit tester or voltmeter, he used a pair of metal pliers to remove the base of a broken light bulb, inserting the pliers into an electrical socket to grasp the base while standing on a metal ladder. Kull’s actions not only violated Occupational Safety and Health Act regulations and general safety practices for electrical work, they violated basic safety rules that every adult is presumed to know. Kull’s conduct was contributorily negligent as a matter of law and amounted to a voluntary assumption of a known risk. Moreover, his knowledge of the hazard was equal or superior to that of Six Flags. Accordingly, the trial court did not err in granting summary judgment.

The contract between the Atlanta Coca-Cola Bottling Company and Kull’s employer, Mahalo Advertising, declares that Mahalo is an independent contractor and gives Mahalo sole control over the time, manner, and methods used in maintenance and repair of the scoreboard. As the majority recognizes, under Georgia law “[a]n [independent] contractor is expected to determine for himself *904whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.” (Citations and punctuation omitted.) Torrington Co. v. Hill, 219 Ga. App. 453, 455 (1) (465 SE2d 447) (1995). And, again as the majority recognizes, Kull had a higher duty of care as an independent contractor to ensure his own safety, since he had discretion as to the method and means of performing the work. Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 100 (4) (303 SE2d 284) (1983) (full concurrence in Division 4).

Kull’s brief characterizes him as “an unskilled maintenance worker” with a tenth grade education, but his resume shows substantial technical experience as well as courses at DeKalb Community College. Kull himself testified that he was an ASE certified automotive master technician, had over 20 years experience in electrical work, and considered himself an expert in automotive electronics, scoreboard electronics, and electrical theory. While he was not a licensed electrician, “[t]o qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status.” (Citations omitted.) Vasquez v. State, 241 Ga. App. 512, 513 (2) (527 SE2d 235) (1999).

Kull had received as part of his training with his employer a complete set of manuals for the scoreboards he was servicing. The manual cautioned him to turn off the power to the scoreboard when replacing lamps, fuses, or modules. A manager and engineer for the scoreboard manufacturer testified that “basic safety procedures” forbid any work on a scoreboard while the power is on and that it would be “extraordinarily foolish” to attempt to remove the base of a broken light bulb without first turning the power off, even if a fuse appeared to be blown. The manager further testified that insulated pliers are inadequate to protect from shock. Kull acknowledged that he did not know the rating of the pliers other than that they were not high voltage rated.

This court has recognized, in a product liability context, “the inherent and obvious danger” of electrical shock with “all electronic appliances.” Moore v. ECI Mgmt., 246 Ga. App. 601, 605 (1) (542 SE2d 115) (2000). Most importantly, common sense dictates that a metal object should not be inserted into an electrical socket without a positive indication that the wiring is not energized. By choosing to assume that a fuse had blown, choosing not to turn off the power even after breaking the bulb, choosing not to use a circuit tester or voltmeter, and choosing to insert an inadequately insulated metal tool into an electrical socket, Kull made a series of independent decisions that cumulatively placed him in great danger of electrical *905shock, even though other means existed for replacing the bulb without exposing himself to danger. “A person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk.” (Citation and punctuation omitted.) Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99, 101 (2) (432 SE2d 675) (1993) (truck driver climbing near electrical wires). Kull “tested a known danger,” id., which he could have avoided by switching off the power and using a circuit tester before inserting a metal tool into the socket. As a matter of law, “he could have avoided the consequences to himself of any negligence” on the part of Six Flags. Id. “It is likewise apparent that he was fully aware of the danger involved. He nevertheless proceeded, and was injured. Because he assumed the risk, the trial court properly entered summary judgment for defendants.” (Citations omitted.) Id.

Kull’s claim also fails because he has not demonstrated superior knowledge of the risk of electrical shock on the part of Six Flags. It is undisputed that Six Flags had no actual knowledge of the miswired transformer box. Kull argues that the existence of the defect from the time of installation, approximately 20 years before, in itself provides constructive notice to the landowner. He cites cases holding that constructive knowledge may arise if a dangerous condition has lasted so long that the landowner should have discovered it. Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 593 (466 SE2d 58) (1995); Collins v. East R. S., Inc., 228 Ga. App. 627 (1) (492 SE2d 351) (1997). But these cases, and others like them, require a second level of analysis: “whether in the exercise of ordinary care the defendants should have discovered the hidden defect.” Armenise, supra at 593. The landowner need not discover a defect that is concealed and not revealed by the exercise of ordinary care. Id.

Kull, his co-worker, and his expert all agreed that the scoreboard functioned and appeared to be operating properly. Kull’s co-worker testified that the only way to discover the miswiring was “to get up with a voltmeter” and test the circuit. And Kull’s expert witness acknowledged that a layman would not be able to detect the miswir-ing. While Kull claims in his brief that rust on the transformer box should have put Six Flags on notice of a defect (although rust on the box has no relation to miswiring), Kull also saw the rusty transformer box and did not believe that it put him on notice of any potential problems. He agreed that he “didn’t see anything based on his visual inspection that would cause any concern.”

While Kull was not a licensed electrician, the record reflects his extensive experience and training and the fact that he considered himself an expert in electronics in general and scoreboards in particular. Kull has failed to show superior knowledge of the condition of *906the scoreboard on the part of Six Flags, particularly in view of his acknowledged expertise and 20 years experience.

Decided March 29, 2002 Reconsideration denied April 12, 2002 Northcutt, Edwards, Gordon, Perrotta & Feingold, Joseph D. Per-mita, Louis R. Feingold, Joseph H. King, Jr., for appellant. Saveli & Williams, Robert E. Mulholland, Alston & Bird, Andrew M. Gibson, Heather R. Peoples, for appellee.

For these reasons, I respectfully dissent.

I am authorized to state that Judge Miller and Judge Phipps join in this dissent.