Cieplinski v. Caldwell Electrical Contractors, Inc.

Barnes, Judge,

concurring in part and dissenting in part.

Although a jury might consider the evidence in this case as the majority has and reach the same conclusion, it is not the function of this court to weigh the evidence and decide whether it was sufficient to prove the plaintiffs case. That role is reserved for the jury. Roberts v. Dove, 234 Ga. App. 853, 854 (1) (508 SE2d 213) (1998). Thus, because I believe that the majority and the trial court have intruded on the role of factfinder by concluding that Henning Construction’s negligence was not the proximate cause of Cieplinski’s injury, I must respectfully dissent from the affirmance of the trial court’s grant of summary judgment to Henning Construction. As I find that the trial court properly granted summary judgment to Caldwell Electrical Contractors and Fred Fairchild for other reasons that will be discussed below, however, I concur in the judgment affirming those grants of summary judgment.

*2771. We must start from the time-honored principles that the routine issues of negligence cases are generally not susceptible of summary adjudication, Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997), and that summary judgment should not be granted in these cases unless the nonexistence of liability is plain, palpable, and indisputable. Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976). If reasonable minds can differ on the cause of the injury, the case is not plain, palpable, and indisputable and it should go to the jury. See Bazemore v. MacDougald Constr. Co., 85 Ga. App. 107, 110 (1) (68 SE2d 163) (1951). Considering the conflicting evidence on the point in issue, this is not a plain, palpable, and indisputable case.

The evidence in this case shows that Cieplinski’s expert witness is a professional engineer who specialized in conveyor safety and is the author of the only book on this subject. He testified that the conveyor was improperly designed and installed in such a fashion that the materials transported on the conveyor would build up and blockages would result. Although he had difficulty in determining how frequently this had happened, it was his opinion that this could happen very often. He also testified that the lights in the tunnel were improperly installed, that an emergency cord should have been installed, and that if an emergency cord had been available, Cieplinski’s injuries could have been diminished.

This evidence, coupled with Cieplinski’s testimony relating how this incident happened, is sufficient to create a jury issue on whether the combined negligence of Henning and Grove River Mills (GRM) was the proximate cause of Cieplinski’s injury. Although the majority identifies several reasons why the expert’s opinion should not be credited, judging the credibility of witnesses is a role for the jury, not this court. Bowen Builders Group v. Reed, 252 Ga. App. 54, 56 (555 SE2d 745) (2001). Also, the evidence about Cieplinski’s possible negligence merely raises issues concerning contributory or comparative negligence. These are affirmative defenses on which Henning, not Cieplinski, would have the burden of proof, Hodge v. Sada Enterprises, 217 Ga. App. 688, 691 (2) (458 SE2d 876) (1995), and, nevertheless, under the disputed facts in this appeal, are not capable of resolution by summary judgment. Ellington v. Tolar Constr. Co., supra, 237 Ga. at 238.

Ultimately, the burden will be on Cieplinski to prove his case by a preponderance of the evidence, but that is not his burden at this point. When responding to this motion for summary judgment, Cieplinski’s burden is only to “point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Given the testimony of Cieplinski’s *278expert, which we are not authorized to reject, I am satisfied that Cieplinski met his burden regarding the issue of proximate cause.

As for the issue of whether the negligence of GRM was an intervening cause,

the general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act. The rule that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant, would not apply if the defendant had reasonable grounds for apprehending that such wrongful act would be committed.

(Citation and punctuation omitted.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002). “Moreover, it is axiomatic that questions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.” (Citation and punctuation omitted.) Id. at 687. Here, given the expert’s testimony that because of the improper design and installation, it was likely that the materials would build up and block the conveyor and that the tunnel was improperly lighted, a jury issue is created on whether it was foreseeable that as a result of the blockage, Henning could reasonably have anticipated, apprehended, or foreseen that GRM would take the actions that it did. Accordingly, this is not one of those plain and undisputed cases in which the issue of proximate cause may be resolved as a matter of law, and I must respectfully dissent from the affirmance of the grant of summary judgment to Henning Construction Company.

2. Although the majority affirms the grant of summary judgment to Caldwell Electrical Contractors because Cieplinski could not establish that its actions were the proximate cause of his injury, the trial court granted summary judgment to Caldwell based upon the acceptance doctrine. This doctrine provides that when

*279the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection.

(Citations and punctuation omitted.) Peachtree North Apts. Co. v. Huffman-Wolfe Co., 126 Ga. App. 594 (191 SE2d 485) (1972). The record shows that Caldwell was hired by GRM to install lights in the tunnel consistent with OSHA standards, and after Caldwell completed the work, GRM accepted it. Therefore, even assuming that Caldwell was negligent in not installing another light switch in the tunnel, the absence of the light switch was readily observable on reasonable inspection and was not a hidden defect. Accordingly, the trial court did not err by granting summary judgment to Caldwell Electrical Contractors.

3. I would also affirm the grant of summary judgment to Fred Fairchild because, as a construction design professional, Fairchild cannot be liable as a matter of law. OCGA§ 34-9-11 (a). Our Supreme Court has construed this section as creating

three express exceptions to the employee’s right to sue a third party, granting immunity from tort liability to employees of the same employer, persons who provide workers’ compensation benefits under a contract with the employer, and “construction design professionals.”

(Footnotes omitted.) Warden v. Hoar Constr. Co., 269 Ga. 715, 716 (1) (507 SE2d 428) (1998); Cotton v. Bowen, 241 Ga. App. 543, 545 (2) (524 SE2d 737) (1999). As defined in OCGA § 34-9-11 (b), a “construction design professional” is

any person who is an architect, professional engineer, landscape architect, geologist, or land surveyor who has been issued a license pursuant to Chapter 4, 15, 19, or 23 of Title 43 or any corporation organized to render professional services in Georgia through the practice of one or more such technical professions as architecture, professional engineering, landscape architecture, geology, or land surveying.

Cowart v. Crown American Properties, 258 Ga. App. 21, 23 (1) (572 SE2d 706) (2002).

*280Decided July 5, 2006. Matthews & Steel, John D. Steel, Douglas P. McManamy, for appellant. Stewart, Melvin & Frost, J. Douglas Stewart, Carlock, Copeland, Sender & Stair, David F. Root, Hall, Booth, Smith & Slover, Mark W. Wortham, John C. Cheshire, for appellees.

This record shows that Fairchild, a professional engineer and university professor of grain science and industry, was retained as an advisor by GRM, Cieplinski’s employer, to review Henning’s plans for the mill and determine whether the feed mill would function as planned. He had no role in the design of the mill. Therefore, as Fairchild was a construction design professional within the meaning of OCGA § 34-9-11 (a) and (b), he is immune from suit, and the trial court’s grant of summary judgment to him, even if on different grounds, is not reversible error. 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 (5) (431 SE2d 746) (1993).

Therefore, although I concur in the majority’s affirmance of the grants of summary judgment to Caldwell Electrical Contractors and Fred Fairchild, albeit upon other grounds, I must respectfully dissent from the grant of summary judgment to Henning Construction Company.