Dennis v. Malt

395 S.E.2d 894, 196 Ga. App. 263, 1990 Ga. App. LEXIS 886
CourtCourt of Appeals of Georgia
DecidedJuly 9, 1990
DocketA90A0227
StatusPublished
Cited by13 cases

This text of 395 S.E.2d 894 (Dennis v. Malt) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis v. Malt, 395 S.E.2d 894, 196 Ga. App. 263, 1990 Ga. App. LEXIS 886 (Ga. Ct. App. 1990).

Opinions

Pope, Judge.

Plaintiff Dennis appeals the grant of summary judgment to contractor Excalibur Store Fixtures, Inc., and its vice-president and employee, Malt, in this suit for on-the-job injuries sustained by Dennis while a stockroom employee at Macy’s (formerly Davison’s). Dennis [264]*264was in the stockroom stacking dish sets when a second story wood deck under him collapsed, causing him to fall to the floor below. He sued Excalibur and Malt alleging that their negligent construction, modification, renovation, refurbishing or supplying of defective materials as to the stockroom floor proximately caused his injuries.

Malt’s affidavit, in support of defendants’ motion for summary judgment, was uncontroverted below and established the following. In June 1984, Excalibur contracted with Davison’s for the manufacture of stockroom shelving and other on-site stockroom construction work at one store site. The terms identified and established the specifications for the shelving and other construction work, including materials, workmanship, dimensions and layout.

The contract provided that Excalibur would manufacture the free-standing stockroom shelving at its New Hampshire plant and install it at the store. The on-site construction was to be performed in two stages. For the first phase, which included installation, Excalibur was authorized to subcontract the work to a local company, T & J Installers, Inc. The second phase was to be performed by Davison’s or another company of its choosing.

Excalibur did not perform any on-site construction, install any shelving, or construct the wood deck or floor. T & J did. No employees of Excalibur were at the store during the on-site construction or participated in it. Excalibur did not direct, control, supervise and/or inspect any on-site construction, including the flooring. To the best of Malt’s knowledge, no Excalibur employee had ever been to the store site.

When T & J was finished, the work was inspected and accepted by the store. Excalibur did not inspect or approve T & J’s work or work performed by any other subcontractor. No Excalibur employee participated in the final inspection or approval of the final construction work. Excalibur did not control or direct the time, manner or method in which T & J or any other subcontractor performed the on-site construction work beyond informing T & J of the starting and completion dates set by Davison’s. T & J was and performed as an independent contractor, free of any control and/or direction by Excalibur in the actual performance of the work. T & J employees were not under Excalibur’s supervision, control, or direction.

Malt did not perform, direct, control, supervise or inspect any on-site construction work including that of the wood deck. He did not direct or control the time, manner or method of any such work including that performed by T & J or any other involved subcontractor beyond informing T & J of the starting and completion dates as set by Davison’s. Malt had never been to the store nor seen or touched the subject wood deck. Malt’s only involvement was in his capacity as an Excalibur employee, and he did not personally or independent of [265]*265his employment contract agree regarding any work done at the store, including construction of the wood deck.

The entire sum paid by Davison’s to Excalibur for phase one of the on-site construction work was then paid in full by Excalibur to T & J. Malt did not receive any portion of the sum paid by Davison’s to Excalibur for on-site construction work.

1. In his sole enumeration of error, appellant Dennis contends that the trial court erred in concluding that T & J was an independent contractor so that defendants were not responsible for T & J’s conduct.

“In determining whether an employer-employee or independent contractor relationship existed, ‘the test to be applied . < . lies in whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.’ Zurich Gen. Accident &c. Ins. Co. v. Lee, 36 Ga. App. 248 (1) (136 SE 173) [1926]. OCGA §§ 51-2-4 and 5.

“If one is employed generally to perform certain services it may be inferable that the employer retained the right to control the manner, method and means for performance of the contract. Swift & Co. v. Alston, 48 Ga. App. 649, 651 (173 SE 741) (1933). However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed. Smith v. Poteet, 127 Ga. App. 735, 737 (195 SE2d 213) (1972).” Dietrich v. Trust Co. Bank of Augusta, 179 Ga. App. 330 (346 SE2d 107) (1986) (non-precedential).

The record on appeal contains no evidence of the contract between Excalibur and T & J, so their relationship must be ascertained from the circumstances of the on-site construction and the contract between Davison’s and Excalibur. See Farmer v. Ryder Truck Lines, 245 Ga. 734, 738 (266 SE2d 922) (1980).

The undisputed evidence showed that Excalibur did not assume the right to control the time and manner of T & J’s work. Nor did the contractual provisions give Excalibur any express and specific right of control. The contract was for certain and limited work according to specifications, which raised an inference that the subcontractor did not become an employee of the general contractor but was an independent contractor. Dietrich, supra. This inference stood unrebutted.

2. Although not enumerated as error, appellant in his brief argues that defendants were liable for the subcontractor’s negligence under OCGA § 51-2-5 (3), which imposes liability if the alleged wrongful act violates a duty imposed by express contract upon the employer. An appellant may not expand an enumeration of error by argument in brief. Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989); Ailion [266]*266v. Wade, 190 Ga. App. 151, 154 (3) (378 SE2d 507) (1989); Central Nat. Ins. Co. of Omaha v. Dixon, 188 Ga. App. 680, 681 (2) (373 SE2d 849) (1988). See also MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980), for an explanation of the enumerations of error rule.

We note, however, that appellant has failed to point out a contract provision which would cast such potential liability on defendants. He focuses on the general provision that consent or approval of the subcontracting would not release or relieve the general contractor from the obligations and liabilities it assumed. Appellant has failed to demonstrate an alleged violation of an express contractual obligation which would fall within the statutory exception. See Fields v. B & B Pipeline Co., 147 Ga. App. 875, 876-877 (250 SE2d 582) (1978).

3. Likewise, in argument in brief, appellant asserts that OCGA § 51-2-5

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Dennis v. Malt
395 S.E.2d 894 (Court of Appeals of Georgia, 1990)

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Bluebook (online)
395 S.E.2d 894, 196 Ga. App. 263, 1990 Ga. App. LEXIS 886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-malt-gactapp-1990.