On November 13, 2009, Gallagher Electric and Engineering Company, Inc. (“Gallagher”) performed electrical work at a building on Techwood Drive owned by Turner Broadcasting System, Inc. (“TBS”). That morning, a Gallagher foreman assigned the electrical work to Paul Nipper and Plaintiff, Justin Miller. Nipper and Miller were tasked with installing wall mounted light fixtures that required electrical wires to be re-routed from the junction box to the fixtures. Before beginning the work, Miller climbed a ladder to inspect and cut the power to the junction box. Miller then went to the electrical room containing the circuit panel. Evidence was not presented as to what Miller did in the electrical room; however, regulations mandate that electrical workers must follow a “lockout/tagout” procedure to prevent the breaker from turning back on. Additionally, workers are required to test circuits with a “tic tracer” before they are deemed “de-energized,” and to verify that the correct circuit has been “locked out.” Nipper did not perform either of these procedures and was unsure whether Miller had done so. Nevertheless, Nipper proceeded to attempt to re-route the wires.
Nipper climbed a ladder to the junction box, removed a wire nut to separate wires, and was immediately “hit hard” by electricity. Nipper descended the ladder and told Miller that the circuit had not been turned off. Miller, in disbelief, quickly climbed the ladder to inspect the junction box. After about 20-30 seconds, Miller told Nipper that he had been hit by a neutral wire. Nipper then witnessed Miller’s knees buckle due to electric shock. Nipper instructed two nearby men to kick over the ladder while he attempted to catch Miller. Unfortunately, Nipper could not catch Miller and he suffered severe head injuries. Miller then brought this action to recover damages from his near-fatal electrocution on TBS property. Miller v. Turner Broadcasting System, Inc., 2016 WL 6820773 (Ga. Ct. App. 2016).
Miller claims that negligent mislabeling and maintenance in the junction box and the circuit panel led to his injuries. Following discovery, the Defendants moved for summary judgment on the grounds that Miller (1) failed to exercise due care as a matter of law; (2) assumed the risk of his injuries; and (3) had superior or equal knowledge of the hazard. The trial court granted the motion for summary judgment, holding that Miller's “actions in disregarding Mr. Nipper's warning and proceeding to work on a line that he had reason to believe was live were the sole proximate cause of his injuries.” Further, Miller’s contention that the circuit panel was mislabeled is immaterial due to the fact that Miller did not perform any tests to confirm that the wires were de-energized. The Court of Appeals of Georgia reversed, finding that a jury could conclude that Miller's injuries were proximately caused by Appellee’s negligence in mislabeling the circuit.
The Court found that Miller presented sufficient evidence to create questions of fact as to whether the junction box and circuit panel were mislabeled. Notably, a Turner Properties electrician inspected the scene and determined that the circuit that should have been cut was mislabeled as a “Spare,” while the circuit that Miller cut was labeled as the “Break/Conference Room.” Additionally, the Court did not view Nipper’s warning as a clear indication that the circuit had not actually been turned off. Rather, the Court viewed the warning as an indication that there was some sort of electricity in the junction box and it was reasonable to investigate the junction box to determine its source.
The Court also denied Appellee’s defense of assumption of risk and contributory negligence. Assumption of risk and contributory negligence are ordinarily not susceptible to summary adjudication and “must be resolved by a trial in the ordinary manner.” Bass Custom Landscapes, Inc. v. Cunard, 575 S.E.2d 17 (Ga. Ct. App. 2002). Moreover, the defendant has the burden of proof and may not simply rest on the absence of evidence in the record. As noted above, it is unclear what Miller did while on the ladder or in the electrical room. Without evidence that Miller did not act with due care, the Court held that the Appellees did not carry their burden to prove a defense of contributory negligence or assumption of risk.
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