LAW et al.
Law and his wife, Kristin Law, appeal the trial court's
order granting a directed verdict to Chemtall, Inc.
("Chemtall"). The underlying facts of this case are
undisputed. Chemtall operates a chemical plant. In August
2011, Chemtall contracted with Daybreak Insulation, Inc.
("Daybreak"), to work on an insulation project in
an area of Chemtall known as the "tank farm."
Michael Law (hereinafter "Law") was an employee of
Daybreak and was assigned to work on the insulation project
in the tank farm. On August 30, 2011, while working on the
project, Law descended a scaffolding ladder and stepped in a
puddle of liquid that he thought was water. He slipped and
the liquid splashed onto his leg. Law testified that he had
walked through the puddle "all day" and for several
days before the incident. Law stated that he had
"encountered the puddle the whole time we was [sic] in
there." After the liquid splashed on him, Law walked to
a break room and began eating his lunch. About 10 to 15
minutes later, he began experiencing a burning sensation in
his leg. He went to a water spigot and began washing his leg.
Law told a supervisor what happened. The supervisor told Law
to wash off in the shower, and Law complied. He sought
medical treatment the next day.
chemical sodium hydroxide was present at the worksite, and
Chemtall had placed a sign advising workers that sodium
hydroxide was present and hazardous. The puddle in which Law
had slipped was sodium hydroxide, and as a result of his
contact with the chemical, Law suffered severe chemical burns
on his leg. Law testified that he knew that if a pipe at a
chemical plant leaked, a worker could be exposed to
chemicals. He also understood that if he was exposed to
chemicals, specifically if chemicals got on his skin, he
could be harmed. Law had also undergone safety training, and
had been instructed that if he was exposed to a chemical, he
"needed to go to the shower area and wash it off."
Laws filed suit alleging negligence on the part of Chemtall.
Chemtall filed a motion for summary judgment, but the trial
court did not rule on the motion. The case was called for
trial in November 2015. At the conclusion of the Laws'
case-in-chief, Chemtall made a motion for directed verdict,
asserting that Chemtall fulfilled its duty to warn the
independent contractor of the hazards. The trial court
granted the motion. In their sole enumeration of error, the
Laws contend that the trial court erred in granting
Chemtall's motion for directed verdict. The contention is
directed verdict is appropriate only if there is no conflict
in the evidence as to any material issue and the evidence
introduced, construed most favorably to the party opposing
the motion, demands a particular verdict." St. Paul
Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508
S.E.2d 646) (1998) (citations omitted). "In reviewing
the grant of a motion for a directed verdict, this Court
applies the 'any evidence' test and construes the
evidence in the light most favorable to the losing
party." Cottrell v. Smith, 299 Ga. 517, 518 (1)
(788 S.E.2d 772) (2016) (citation omitted).
[i]t is well settled that an owner or occupier of land is
liable in damages to invitees who come upon his land for
injuries occasioned by his failure to exercise ordinary care
in keeping the premises safe. . . . Under this principle is
found the duty of an owner of premises to an individual
contractor and his employees who lawfully come upon the
premises in the performance of a contract between the owner
and the contractor because the independent contractor and his
employees are invitees. Thus, an owner having work done on
his premises by an independent contractor, who has actual or
constructive knowledge of potential dangers on the
premises, owes a duty to the contractor to give warning of,
or use ordinary care to furnish protection against, such
dangers to the contractor and his employees who are without
actual or constructive notice of the dangers, and which could
not be discovered by them in the exercise of ordinary care.
West v. Briggs & Stratton Corp., 244 Ga.App.
840, 844 (536 S.E.2d 828) (2000) (footnote and citation
omitted, emphasis supplied). Further,
[a]lthough property owners owe a duty to their own invitees,
they owe no such duty to employees of or others invited upon
the premises by an independent contractor hired to do work on
the premises if two conditions exist: 1) the owner has
relinquished possession of the premises, in whole or in part
and 2) the owner does not have the right and does not
actually control or direct the work done.
McClure v. Equitable Real Estate Investment Mgmt.,
Inc., 195 Ga.App. 54, 55 (392 S.E.2d 272) (1990)
(citations omitted). Therefore, unless Chemtall met both
prongs of the McClure test, it owed a duty to the
independent contractor, Daybreak.
record contains some evidence that Chemtall did not
relinquish possession of the property. At the time of the
incident, Chemtall had a "Process Safety, Health and
Environmental Orientation Training Program Booklet" that
it required contractors, such as Daybreak, to follow. The
It is required that the SNF Operations Manager
jointly with the Contractor Working Supervisor
Representative and the SNFHC Mai ntenance/Engineer Manager if
involved, must be in the area where the working
activities are to be conducted; determine if acceptable
conditions exist to authorize and approve working activities
or terminate them.
(emphasis in original). "[P]ossession may be defined as
having personal charge of or exercising the rights of
management or control over the property in question."
West, supra at 845. The requirement in the training
program booklet that a Chemtall employee be in the area where
the Daybreak employees were working suggests that Chemtall
retained partial possession of the premises where Daybreak
was working. Because Chemtall possibly retained possession of
a portion of the premises, evidence exists that Chemtall did
not meet one of the two prongs of the McClure test.
"Only if both conditions [of the McClure test]
are satisfied is the owner relieved of any duty toward
invitees." West, supra at 846. As the evidence
was in conflict regarding whether Chemtall relinquished
possession of the property, the first prong of the
McClure test was not satisfied. Thus, we
need not consider the second prong of the McClure
Chemtall was not relieved of its duty to Law under the
McClure test, Chemtall was still entitled to a
directed verdict because the evidence was undisputed that it
discharged its duty. It is well settled that "[f]ull
knowledge by [an] independent contractor of the dangers
should and will be held to discharge the landowner's
alternative duty to warn the employees." McKinney v.
Regents of the Univ. Sys. of Ga., 284 Ga.App. 250, 252
(1) (643 S.E.2d 736) (2007) (footnote and citation omitted).
Evidence was indeed presented that Chemtall warned Daybreak
of the potential chemical dangers present in the tank farm,
such that Daybreak had full knowledge of the potential
hazards. This included posting a sign concerning the presence
and dangers of sodium hydroxide, and mandating that Daybreak
give its employees a safety training program that informed
employees of potential ...