Kull v. Six Flags Over Georgia II, L.P.

592 S.E.2d 143, 264 Ga. App. 715, 2003 Fulton County D. Rep. 3695, 20 OSHC (BNA) 1467, 2003 Ga. App. LEXIS 1481
CourtCourt of Appeals of Georgia
DecidedNovember 26, 2003
DocketA01A2315
StatusPublished
Cited by12 cases

This text of 592 S.E.2d 143 (Kull v. Six Flags Over Georgia II, L.P.) 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
Kull v. Six Flags Over Georgia II, L.P., 592 S.E.2d 143, 264 Ga. App. 715, 2003 Fulton County D. Rep. 3695, 20 OSHC (BNA) 1467, 2003 Ga. App. LEXIS 1481 (Ga. Ct. App. 2003).

Opinions

Smith, Chief Judge.

This is the second appearance of this case before this court. In Kull v. Six Flags Over Ga., 254 Ga. App. 897 (564 SE2d 747) (2002), this court reversed the grant of summary judgment to Six Flags on Kull’s personal injury claim. The Supreme Court of Georgia reversed in Six Flags Over Ga. v. Kull, 276 Ga. 210 (576 SE2d 880) (2003), and remanded for us to address “the question of whether OSHA regulations apply to this litigation, and if so whether the evidence compels a finding that Kull was contributorily negligent per se. This issue must be decided in order to determine whether the grant of summary judgment was appropriate.” Id. at 212. After a review of the record, we conclude that OSHA regulations do apply here and that the evidence indeed compels a finding of per se contributory negligence on the part of Kull. We therefore affirm the judgment of the trial court.

A detailed account of the relevant facts may be found in the ear[716]*716lier appearance of this case. Kull, supra, 254 Ga. App. 897. In brief, Kull’s employer, Mahalo Advertising, was under contract to maintain an electronic scoreboard on the Six Flags property. In the course of maintaining this scoreboard, Kull did not turn off the power to the board and did not check the circuit because he believed that a fuse had blown. But, due to a wiring defect in the nearby transformer box, the circuit remained energized. Kull was in the process of replacing a light bulb when he broke the glass globe and used a pair of metal pliers in an attempt to grasp the metal base of the bulb and remove it. The still-energized circuit shocked Kull and threw him from the ladder, causing his injuries. Id. at 899.

“As the trial court recognized, generally, negligence per se arises when a statute or ordinance is violated. The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty.” (Citations omitted.) Hubbard v. Dept. of Transp., 256 Ga. App. 342, 349-350 (3) (568 SE2d 559) (2002).

[B]efore negligence per se can be determined, a trial court must consider (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm the statute was intended to guard against. Finally, if the court finds negligence per se, the plaintiffs must then demonstrate a causal connection between the negligence per se and the injury. And it is generally a jury question as to whether or not such negligence proximately caused the injury.

(Citations and punctuation omitted.) Hubbard, supra at 350. Here, Kull was required by 29 USC § 654 (b) to “comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”

OSHA regulations governing electrical safety-related work practices apply both to qualified and unqualified persons “working on, near, or with” premises wiring in or on buildings “and on other premises such as yards, carnival, parking, and other lots.” 29 CFR § 1910.331 (a), (a) (1). In addition, the Standard for Electrical Safety Requirements for Employee Workplaces promulgated by the National Fire Protection Association (NFPA 70E) has been incorporated by reference into the OSHA standards. 29 CFR § 1910.6 (q) (16). The Introduction to NFPA 70E, § 1-2.1 provides definitions that “apply wherever the terms are used throughout this standard.” This section contains the following definition: “Exposed. (As applied to live parts.) Capable of being inadvertently touched or approached nearer [717]*717than a safe distance by a person. It is applied to parts not suitably guarded, isolated, or insulated.” Part II, NFPA 70E, Chapter 1, § 1-5 defines <£[e]nergized” as “[electrically connected to a source of potential difference, or electrically charged to have a potential significantly different from that of earth in the vicinity.” The socket containing the remains of the broken bulb was both energized and exposed within the meaning of these definitions. OSHA regulations, including the NFPA standards, therefore apply to Null’s unsuccessful attempt to remove the broken bulb from the socket.

Kull violated OSHA regulations and NFPA standards governing electrical safety in numerous respects. Most importantly, he failed to “deenergize” (shut off power to) the scoreboard, in violation of 29 CFR § 1910.333 (a) (1). In connection with this failure, he also failed to lock out or tag the circuit energizing the part as required by 29 CFR § 1910.333 (b) (2) or to confirm that the circuit was deenergized as required by 29 CFR § 1910.333 (b) (2) (iv). Part II, NFPA 70E, Chapter 2, § 2-3.1.3 likewise requires deenergizing circuits, lockout or tagout, and the use of an adequately rated voltage detector to verify that each circuit part is deenergized.

Kull also failed to use a ladder with nonconductive siderails1 as required by 29 CFR § 1910.333 (c) (7) and Part II, NFPA 70E, Chapter 2, § 3-4.3.1. In addition, Kull, while working on an energized circuit or a circuit that he did not know to be deenergized, 29 CFR § 1910.333 (b) (1), failed to use insulated tools, 29 CFR § 1910.335 (a) (2) (i), or personal protective equipment properly rated for the voltage, 29 CFR § 1910.335 (a) (1) (i); 29 CFR § 1910.137. Kull acknowledged that he did not know the rating of his pliers other than that they were not high voltage rated.

Kull’s injury was caused directly by his insertion of a metal tool of unknown insulating capacity into an energized and exposed electrical component while standing on a conductive ladder, without shutting off the power or employing a circuit tester or voltmeter to verify that the circuit was not energized. The concurrence of all these violations of OSHA regulations and NFPA standards created a path to ground for the electrical current through Kull’s body, shocking him and causing him to fall from the ladder.

“A plaintiff’s contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the defendant.” (Citation and footnote omitted.) North Ga. Elec. Membership Corp. v. Webb, 246 Ga. App. 316, [718]*718319 (2) (540 SE2d 271) (2000). The facts of this case are strikingly similar to those in Beamon v. Ga. Power Co., 199 Ga. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

U.S. Foods, Inc. v. Carlees Restaurant, LLC
Court of Appeals of South Carolina, 2023
Coates v. Lyft, Inc.
N.D. Georgia, 2023
Ronald Miller v. Turner Broadcasting System, Inc.
794 S.E.2d 208 (Court of Appeals of Georgia, 2016)
St. Paul Mercury Insurance v. Capitol Sprinkler Inspection, Inc.
627 F. Supp. 2d 1 (District of Columbia, 2009)
McLain v. Mariner Health Care, Inc.
631 S.E.2d 435 (Court of Appeals of Georgia, 2006)
Chamblin v. K-Mart Corp.
612 S.E.2d 25 (Court of Appeals of Georgia, 2005)
Camden Oil Co., LLC v. Jackson
609 S.E.2d 356 (Court of Appeals of Georgia, 2004)
Kull v. Six Flags Over Georgia II, L.P.
592 S.E.2d 143 (Court of Appeals of Georgia, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
592 S.E.2d 143, 264 Ga. App. 715, 2003 Fulton County D. Rep. 3695, 20 OSHC (BNA) 1467, 2003 Ga. App. LEXIS 1481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kull-v-six-flags-over-georgia-ii-lp-gactapp-2003.