dissenting.
Plaintiff Deborah Carey Allen’s brief attacking the grant of summary judgment in favor of defendant King Plow Company states a single two-part theory. Plaintiff maintains that Hartley is strictly liable for her husband’s death under the High-voltage Safety Act, OCGA § 46-3-30 et seq., and that.defendant King Plow is liable for Hartley’s tort under the provisions of OCGA § 51-2-5 (5).
Since there is no support for the second part of this hypothesis that defendant King Plow is liable for any tort of Hartley’s, I would affirm. OCGA § 51-2-5 provides that: “An employer is liable for the negligence of a contractor: ... (5) [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference. . . .” This statutory language has been construed to identify two alternative sets of circumstances to which it may be applied. Intl. Agricultural Corp. v. Suber, 24 Ga. App. 445, 451 (101 SE 300). The first alternative is where the employer’s interference and assumption of control create the relation of master and servant. Yet, this first alternative is clearly not applicable in the case sub judice since it was resolved in a workers’ compensation proceeding and becomes established as a matter of collateral estoppel that Hartley was an independent contractor and was not a servant of defendant King Plow Company. McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (341 SE2d 294).
I believe that the majority has erred in holding that King Plow did not assert the affirmative defense of collateral estoppel, also known as estoppel by judgment. The original answer of King Plow states as its thirteenth defense that: “This defendant hereby pleads the doctrine of res judicata, collateral estoppel and estoppel by judgment with respect to all matters which have previously been resolved in the worker’s compensation claim which has been filed as a result of the incident forming the subject matter of this litigation. . . .” The judgment in the workers’ compensation case is included in the evidence in the case and shows that the determination by the ALJ that Hartley was an independent contractor was necessary to the conclusion that King Plow was not liable for workers’ compensation benefits and thus was not dicta as asserted by the majority.
When King Plow moved for summary judgment, one of its four contentions was that it owed no duty to plaintiff’s decedent to protect *801against the negligence of Hartley. This position was predicated on the supposition that Hartley was an independent contractor, a matter which had been resolved in the workers’ compensation claim, and upon the rule that one who contracts with an independent contractor is not responsible for torts committed by the independent contractor. King Plow’s position in this regard was reiterated in its motion for reconsideration of the denial of summary judgment. Thus, the majority is mistaken in concluding that the judgment in the workers’ compensation proceeding was neither raised nor ruled on by the superior court. There was no waiver of the affirmative defense of collateral estoppel.
Decided July 16, 1997 Reconsideration denied July 31, 1997 James B. Pilcher, Christopher J. McFadden, for appellants. Long, Weinberg, Ansley & Wheeler, Alan L. Newman, Michele L. Davis, KariA. Mercer, Frederick N. Sager, Jr., for appellees.The remaining alternative in which an employer is liable for the negligence of a contractor is where an injury results which is traceable to the employer’s interference. In the case sub judice there is no such causal connection, between any conduct of defendant King Plow and the death of plaintiff’s husband. Therefore, this second alternative is inapplicable, and any attempt to hold defendant King Plow liable for a tort of the independent contractor Hartley should be unsuccessful. For the preceding reasons, I respectfully dissent.