Court of Appeals of Georgia, First Division, June 30, 2021
The plaintiff, Colen Campbell, alleged asbestos exposure from his work removing and installing insulation at a nuclear power plant owned by Georgia Power in the 1970s. The plaintiff was employed as an independent contractor by North Brothers. The defendant, Georgia Power, filed a motion for summary judgment arguing that (1) there was no duty owed to the plaintiff because it had ceded possession and control of the plant to North Brothers, (2) the testimony of the plaintiff’s expert witnesses should be excluded, and in the absence of such testimony, the plaintiff failed to establish causation, and (3) the plaintiff’s claims are barred under the statue of repose. The trial court limited the plaintiff’s claims to the period of time between 1973 and 1974, and denied the rest of Georgia Power’s motion. The court of appeals granted Georgia Power’s request for interlocutory review.
With regards to the issue of possession and control, the court noted that it is well settled that a property owner owes a duty of care to both a contractor and the contractor’s employees who lawfully enter the premises in performance of a contract. The exception to this is when (1) the property owner has relinquished control of the premises, in whole or part, and (2) the property owner does not have the right to control the work performed. Here, the contract between Georgia Power and North Brothers stated that North Brothers would provide the workers and materials, train the workers, and maintain safe conditions. It also stated that Georgia Power had the right to have inspectors review the work, supervise the space, and fire workers if the work done was deemed substandard. The court found that the language of the contract demonstrated a question of fact regarding whether Georgia Power relinquished possession and control of the work space. On this issue, the court held that the motion for summary judgment was properly denied.
Furthermore, Georgia Power argued that the testimony given by the plaintiff’s two expert witnesses should be excluded. First, Georgia Power argued that the testimony was duplicative and cumulative, as both experts testified to the same matter–the fact that asbestos causes mesothelioma–which was not in dispute. Second, Georgia Power argued that one of the experts was unqualified to give an opinion as to Georgia Power’s knowledge of the risks, duty of care, and compliance with safety regulations. The lower court denied Georgia Powder’s motion to exclude the testimony, stating that the testimony was not duplicative and that Georgia Power failed to challenge the expert’s qualifications. On review, the court found that the trial court did not abuse its discretion in finding that the testimony was not duplicative. However, the court did find that Georgia Power did, in fact, challenge the expert’s qualifications. For this reason, the court remanded the issue.
Finally, under the statute of repose, there is no recovery for injuries resulting from deficiencies in specifications or construction of an improvement to real property that occurred more than ten years after substantial completion of construction. This defense is precluded, however, when an entity that would otherwise be entitled to its benefits is in actual possession or control of the improvement when the deficiency causes the injury. The court noted that the trial court failed to address this argument and as such, remanded the issue for consideration.