Callaway v. Crown Crafts, Inc.

Birdsong, Presiding Judge.

Gordon L. Callaway, Sr., and Jessie Elaine Callaway appeal the grant of summary judgment to Crown Crafts, Inc., Calhoun Awning and Wrought Iron Company, Sam Momon, and the City of Calhoun in the Callaways’ action against appellees arising from an incident in which Gordon Callaway was injured by electrical shock. Gordon Cal*298laway was an employee of Calhoun Awning and Wrought Iron Company, which is owned by Sam Momon, when a rain gutter which Callaway was removing from a building owned by Crown Crafts came into contact with a high power line owned by the City of Calhoun, the electric power provider. Jessie Elaine Callaway’s cause of action is based on loss of consortium.

The record shows that Callaway and a co-worker were in the process of lowering the gutter to the ground when the 30-foot-long gutter collapsed in the middle. When this happened, the gutter tilted up and struck the overhead power line. Callaway was severely injured from the electric shock.

The Callaways filed suit contending that the defendants were strictly liable under OCGA § 46-3-30 et seq., the High-voltage Safety Act, because they failed to turn off the power source even though Callaway and his fellow workman would be working within the danger area of the high voltage wires. Subsequently, the defendants moved for summary judgment contending that Callaway had assumed the risk of working near the wires and that the High-voltage Safety Act applied equally to Calláway because, as the person actually performing the work, he was also required to call the power company. Thus, he assumed the risk of working without calling the power company to turn off the power. The trial court agreed and granted summary judgment. The Callaways now appeal. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

2. As to Calhoun Awning and Wrought Iron Company, Sam Momon, and Crown Craft, this appeal is controlled by our recent decision in Southern Orchard Supply v. Boyer, 221 Ga. App. 626 (472 SE2d 157), and our earlier decision in Leonardson v. Ga. Power Co., 210 Ga. App. 574 (436 SE2d 690). “In an action by a servant against a master for alleged failure of duty on the part of the latter in not giving to the servant warning of a danger incident to his employment, it ■must appear that the master knew or ought to have known of the danger, and that the servant injured did not know and had not equal means with the master of knowing such fact, and by the exercise of ordinary care could not have known it.” (Citation and punctuation omitted.) Southern Orchard Supply, supra at 627. In this case, the record shows that Callaway had worked around and was keenly aware of the dangers of working around high voltage wires, his boss had discussed with him and his co-workers the dangers of working around this particular wire, and Callaway and his co-worker also had discussed this problem before undertaking the removal and lowering *299of the gutter. Under the circumstances it cannot be reasonably said that Callaway was not aware of the dangers associated with these wires. Moreover, the record demonstrates that Callaway and his coworker independently decided to lower the gutter near the power line when several other means existed for removing the gutter without working near the power line. Therefore, Callaway “failed to exercise ordinary care for his own safety, and it was his own negligence that proximately caused his injury. This failure to exercise ordinary care is fatal to his claim.” Id. at 628. Further, by deciding to work near the power line, Callaway assumed the risk of the injury. Leonardson v. Ga. Power Co., supra at 576-577. Although assumption is ordinarily a jury question, we find this to be a plain, palpable and undisputed case in which the grant of summary judgment is authorized. Tennison v. Lowndes-Echols Assn. &c., 209 Ga. App. 343, 344 (433 SE2d 344). Accordingly, the trial court did not err by granting summary judgment to Calhoun Awning and Wrought Iron, Sam Momon, and Crown Craft.

3. As to the City of Calhoun, the record shows that the notice required by OCGA § 46-3-34 was not given. Therefore, the City cannot be liable. OCGA § 46-3-39. Moreover, we note that Mrs. Callaway’s consortium claim against the City would fail in any event because she did not give notice of her claim to the City. OCGA § 36-33-5; Campbell v. City of Atlanta, 117 Ga. App. 824 (162 SE2d 213).

4. Because Mrs. Callaway’s loss of consortium claim is derivative of her husband’s cause of action, for the above-stated reasons, the trial court also did not err by granting summary judgment on her claims. Hall v. Gardens Svcs., 174 Ga. App. 856, 858 (332 SE2d 3).

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J, concurs specially.