dissenting.
I respectfully dissent as to Division 2 of the majority opinion *458because, in my view, a fair and sensible reading of the Supreme Court’s order transferring the cases sub judice to the Court of Appeals precludes this Court’s review of any issue concerning application of the 1992 amendment to Georgia’s High-voltage Safety Act, OCGA § 46-3-39 (a). I believe the unique procedural circumstances in these cases (both in the trial court and on appeal) take the trial court’s summary judgment order outside the “right for any reason” rule and focuses this Court on the sole basis of the trial court’s order granting summary judgment to Georgia Power Company, i.e., proximate cause. And as to this issue, I would vacate that part of the trial court’s judgment granting summary judgment to Georgia Power and remand the case to the trial court, because Roy Preston’s attorneys were unfairly blind-sided by the proximate cause issue while defending the sole basis of Georgia Power’s motion for summary judgment, “whether the action against [Georgia Power] is barred by the provisions of Georgia’s High-voltage Safety Act (OCGA § 46-3-30), which was amended in 1992.”
Although the trial court rejected Roy Preston’s constitutional challenge to OCGA § 46-3-39 (a) in an earlier interlocutory order, the trial court concluded on summary judgment that this 1992 amendment to Georgia’s High-voltage Safety Act does not preclude Preston’s claims against Georgia Power. The trial court, nonetheless, granted summary judgment based on a finding that Georgia Power’s noncompliance with the National Electric Safety Code was not a proximate cause of Roy Preston’s injuries. This procedural posture is the basis for the following transfer order entered by the Supreme Court of Georgia: “Because the issue on which the trial court granted summary judgment in these cases does not fall within the jurisdiction of this Court, the appeals are hereby transferred to the Court of Appeals. All the Justices concur, except Sears, J., who dissents.”
I believe the Supreme Court of Georgia’s transfer order removes this Court’s authority to apply OCGA § 46-3-39 (a) based on the “right for any reason” rule and focuses this Court’s review to the sole basis of the trial court’s order granting summary judgment to Georgia Power, i.e., proximate cause. Saying otherwise precludes Roy Preston’s right to challenge the constitutional validity of the very Code subsection which is the basis of the majority’s opinion, OCGA § 46-3-39 (a).5 I, therefore, believe it appropriate to zero-in on the *459trial court’s ruling that Georgia Power’s noncompliance with the National Electric Safety Code was not a proximate cause of Roy Preston’s injuries.
“ ‘Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. (Cit.) “This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment. (Cits.)” (Cit.)’ Hodge v. Sada Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). ‘ “The crucial point is to insure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” . . . (Cit.)’ (Emphasis supplied.) Famble v. State Farm Ins. Co., 204 Ga. App. 332, 336 (4) (419 SE2d 143) (1992).” Aycock v. Calk, 222 Ga. App. 763 (476 SE2d 274).
Georgia Power narrowed the scope of its motion for summary judgment with the following statement in its supporting brief: “The sole issue raised by Georgia Power’s Motion for Summary Judgment is whether the action against it is barred by the provisions of Georgia’s High-voltage Safety Act (OCGA § 46-3-30), which was amended in 1992. It is believed that this is the first occasion for the new Act to be construed.” Although the trial court rejected this assertion, Roy Preston was blind-sided by the proximate cause issue in the trial court’s summary judgment order. That is to say, Roy Preston’s attorneys were simply not given a fair opportunity to address the fact-intensive proximate cause issue in the trial court because they were concentrating on Georgia Power’s sole request for the trial court to resolve “whether the action against it is barred by the provisions of Georgia’s High-voltage Safety Act (OCGA § 46-3-30), which was amended in 1992.” Since proximate cause is a matter which should be resolved only in plain,, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810), I believe Roy Preston’s attorneys should be provided an opportunity to refine the *460evidentiary record and do whatever else is necessary to defend the proximate cause issue in the trial court. I stand firm in this view because, even though the evidentiary record in- the case sub judice appears well developed, I believe it unfair to hit a person from the left (so to speak) when that person is defending a blow from the right.
Decided July 16, 1997 Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Gary C. Christy, David A. Forehand, Jr., Preyesh K. Maniklal, Hyatt & Hyatt, John M. Hyatt, for appellant (case no. A97A0776). Drew, Eckl & Farnham, James M. Poe, Suzanne V. Sanders, James K. Creasy III, for appellant (case no. A97A0777). Troutman Sanders, Robert L. Pennington, Scott A. Farrow, for appellees.I would vacate that part of the trial court’s judgment granting summary judgment in favor of Georgia Power and remand the case to the trial court.
Even so, I cannot go along with the majority’s view that OCGA § 46-3-39 (a) nullifies the Supreme Court’s holding in Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145),. “that lack of... notification [under OCGA § 46-3-34] is a bar to recovery only where the lines are ‘otherwise properly located and maintained.’ Carden v. Ga. Power [Co., 231 Ga. 456, 457 (202 SE2d 55)].” Malvarez v. Ga. Power Co., 250 Ga. 568, 569, supra. As Judge Beasley accurately pointed out in a special concurrence in Callaway v. Crown Crafts, 223 Ga. App. 297, 300 (2) (477 SE2d 435), the Malvarez rule recognizes the distinct duty imposed upon one *459maintaining high-tension lines to “ ‘maintain them in such a manner and at such a location as not to injure persons who might reasonably be expected to come in contact with them.’ (Emphasis omitted.) [Buckner v. Colquitt EMC, 206 Ga. App. 69, 70 (424 SE2d 299)].” Callaway v. Crown Crafts, 223 Ga. App. 297, 300 (2), supra. Since there is evidence in the cases sub judice that Georgia Power did not comply with this duty by failing to maintain its power line within standards prescribed by the National Electric Safety Code, I believe genuine issues of material fact remain as to Georgia Power’s liability (breach of duty) for any such noncompliance.