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Bath v. International Paper Co.

Court of Appeals of Georgia, First Division

October 24, 2017

BATH
v.
INTERNATIONAL PAPER COMPANY et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          McMillian, Judge.

         Plaintiff/appellant Stephen Christopher Bath was severely injured when he was electrocuted while working at defendant International Paper Company's ("IP") Savannah, Georgia plant ("plant or mill"). He brought a premises liability and negligence action against IP and IP employee William Brown ("defendants") seeking to recover damages for his injuries.[1] Defendants moved for summary judgment, which the trial court granted after a hearing. Bath now appeals from that ruling.

         At the time of his injury in February 2013, [2] Bath was a third-year electrical apprentice employed by White Electrical Construction Company ("White Electrical"). White Electrical had contracted with IP to perform electrical maintenance and repairs during a regularly scheduled "field day" at the mill. During field days, which IP schedules at regular intervals throughout the year, the paper mill is essentially shut down and independent contractors and mill workers make repairs and perform maintenance that cannot be performed while the mill is operational. One of the primary jobs of White Electrical that day was to repair and replace lights that were not functioning, including lights that were located in the dryer press basement area of the Number 8 paper machine.[3]

         Bath arrived at the plant that morning without his tic tracer, which is a device used to detect "live" electrical current, and was given one by his supervisor Jerry Grubbs.[4] Grubbs, Bath, Michael Baxter, who at that time was a five-year electrical apprentice, and another worker then went inside the plant. They were met by defendant Brown, and he, Grubbs and IP journeyman electrician Lee Linton discussed the lights they would be working on that day. Grubbs was also provided a copy of a partial lighting plan or diagram which showed the inoperable lights in the dryer press basement area of the Number 8 machine on which they would be working. The circuit that powered the lights and the panel box where it was contained were written on either side of the drawing of the light, and these notations indicated that all the inoperative lights were energized by Circuit 23 contained in Panel Box 8, or "LP8-23." The workers then had a discussion about the plans with the IP employees testifying that they had warned the White Electrical employees that the plans might not be accurate. The White Electrical workers denied that they heard Brown or Linton warn them about the plans or the voltage.

         The IP employees then left the area, and the White Electrical employees tripped, tagged, and locked out Circuit 23 in Panel Box 8. They then went back to the dryer basement press area and tested the wires to the lights they would be working on to make sure they had been de-energized when they tripped the circuit. Bath was specifically observed using his tic tracer to make this check along with the other workers.

         After working on repairing the lights for several hours, the White Electrical workers took a break and then came back and re-energized the lights to see if their repairs had been successful. However, "the last three lights" were still not working, and Grubbs testified that he told the other workers that probably meant there was a broken wire in a higher conduit that had not yet been checked. He instructed Bath and Baxter to trouble shoot the non-working lights, and they all went back to the panel box where Bath and Baxter again tagged and locked out Circuit 23 in Panel Box 8. Grubbs and the other White Electrical employee then went to another area of the plant to make repairs, and Bath and Baxter returned to trouble shoot the non-working lights.

         Baxter and Bath had to use a scissors lift to reach the conduits they believed contained the wires to the inoperable lights. Baxter then exited the lift and climbed up on the condulet to reach the conduit containing the wires.[5] Baxter and Bath began to pull on the wires from different ends, discovering through trial and error that one of the wires was broken. Bath remained on top of the condulet while Baxter handed him new wires and other tools to replace the broken wire. Because he was on top of the condulet reaching down into the conduit to access the wire, Bath remained mostly hidden from Baxter's view, and Baxter testified he could not see if Bath used his tic tracer before he began connecting the new wire. However, he said that he suddenly realized that Bath had gone quiet and his legs had become rigid. Baxter surmised that Bath was receiving an electrical shock, and he grabbed Bath by the non-conductive part of his safety vest, and pulled him down, breaking the connection. Medical help was summoned, and Bath was resuscitated and then transported to the hospital, where he remained for several months.

         IP immediately took control of the area where the accident occurred and began investigating the cause of the accident. During the course of their investigation, IP learned that there were 110 and 277 voltage wires going to the light where Bath had been working, which were powered by a different circuit located in a different panel box. Because this circuit had not been de-energized, Bath cut into an energized or "live" wire when he was attempting to replace the broken wire. IP had the broken wire repaired, and the light fixture and wire that had been in place on the day of the accident were placed in a box and stored. However, that box later went missing, and the light fixture and wire have never been located. Although Bath's tic tracer was observed in the scissors lift following accident, it was not returned with the other tools left in the dryer press basement area following the accident and has never been located.

         Based on these events, Bath alleged that defendants negligently provided them with an out-of-date, inaccurate, and misleading lighting plan and negligently represented to White Electrical which circuit and lighting panel provided the source of electric power to the lights on which they were performing repairs.[6] Defendants filed separate motions urging four independent grounds why they should be granted summary judgment: (1) IP had surrendered the relevant portion of the premises to White Electrical and thus had no liability to White Electrical's employees who were injured while working under the terms of the Purchase Contract; (2) White Electrical's failure to properly de-energize the wire was an intervening and proximate cause of Bath's injury; (3) IP lacked superior knowledge of the alleged hazard that resulted in Bath's injury; and (4) Bath assumed the risk of his injuries when he touched a live wire without testing it.

         Prior to the trial court's ruling on defendants' summary judgment motions, Bath filed a motion for sanctions based on the alleged spoliation of evidence, including the tic tracer he had been using that day and the wires and lights that were replaced. Bath argued that, as to the tic tracer, the lost evidence prevented him from testing the tracer to determine if it was working properly at the time he was injured, which would negate defendants' defenses based on his failure to use the tic tracer to determine if the wire was energized before he started working on it. As to the light fixture, Bath argued that, by tracing the serial number, it would be possible to determine when the light fixture was last replaced, which was relevant to determining whether IP had knowledge of the 277-volt circuit in that part of Machine Number 8, and whether it knew about the volt and should have updated its plans accordingly. Defendants responded, [7] arguing in part that the allegedly spoliated evidence was relevant to only one asserted ground for summary judgment - assumption of the risk - and that, therefore, under well established appellate case law the trial court could enter summary judgment in their favor based on any of the other grounds asserted in their motion without first ruling on the motion for sanctions.

         Without specifying which grounds, the trial court agreed with defendants that Bath's motion for sanctions was unrelated to three of the grounds for summary judgment, and thus those grounds could be considered, and summary judgment granted if warranted, even if spoliation had occurred. The court then went on to rule against defendants on the issue of contractual surrender, deemed summary judgment improper on the assumption of the risk defense because of the spoliated tic tracer, but granted summary judgment to defendants on the grounds of lack of reasonable reliance on the trial court's sua sponte re-framed claim for "negligent misrepresentation, " intervening cause or failure to prove proximate cause, and lack of superior knowledge. This appeal followed.

         1. Bath contends that the trial court erred in granting summary judgment because IP spoliated key pieces of evidence.

Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Such conduct creates the presumption that the evidence would have been harmful to the spoliator. Proof of spoliation raises a rebuttable presumption against the spoliator that the evidence favored ...

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