Court of Appeals of Georgia, Fourth Division, March 10, 2022
In this asbestos action, plaintiff Kevin Sinyard developed malignant pleural mesothelioma following a 25-plus year career as a pipefitter. Sinyard commenced an asbestos-related action against several defendants. Three of the defendants include premises defendants (Georgia Power, Ford Motor Company, and Piedmont Hospital), where Sinyard worked from 1975 until 1989. The trial court granted summary judgment to all three defendants. Following the plaintiff’s appeal, the Court of Appeals affirmed in part and reversed in part the trial court’s judgment.
Pertinent to all motions, Sinyard first learned of the hazards of asbestos exposure in the late 1980s. When he encountered asbestos-related material, he was to wear a paper mask and met the material down to minimize dust while he worked. His union foreman, Eugene West, testified that he did not know of the health risks of asbestos until the late 1980s. Further, West would have learned of the hazards before the “rank-and-file” union members such as Sinyard.
With regard to Georgia Power, the Court of Appeals affirmed the decision that Georgia Power was immune under the Workers’ Compensation Act (O.C.G.A. § 34-9-11) since they constituted a “statutory employer.” Namely, a company is a statutory employer if they “owe a secondary duty to another to perform a contractual duty.” Here, Georgia Power was obligated to other owners of two specific plants to build new Units, and Georgia Power hired Sinyard’s employer to build those Units. As such, Georgia Power “fulfill[ed] its obligations as principal contractor” when they hired Sinyard’s employer.
However, the Court of Appeals reversed the decision on three grounds. First, there was a genuine issue of material fact regarding “whether Sinyard had equal knowledge of the specific risks of exposure to asbestos at the time he worked at the Georgia Power plants.” The Court of Appeals noted that Georgia Power knew of the hazards of asbestos as early as 1973. Georgia Power trained its union employees, set forth asbestos-related policies, and provided respirators to them. In contrast, Sinyard did not have formal training as to identify asbestos-related materials. Further, he was provided a paper mask for protection and was not provided with a respirator. The Court of Appeals also rejected Georgia Power’s contention that Sinyard had knowledge of the risks of asbestos since the national organization of his union published articles on the subject for several reasons. Notably, there was no evidence that Sinyard received and read the articles. Second, there was a genuine issue of material fact regarding “whether the ‘hired worker’ exception relieves Georgia Power of its ordinary duty towards Sinyard as an invitee.” This exception applies only if one has “actual notice of the dangers associated with the work and has the opportunity to observe the situation and assess the risks for himself.” Since a genuine issue of material fact remained as to whether Sinyard had knowledge of the hazards of asbestos exposure, the Court of Appeals determined that there was a genuine issue of material fact as to whether the hired worker exception applied to this matter. Third, there was a genuine issue of material fact regarding “whether Georgia Power had relinquished control and possession of the premises to Sinyard’s employers.” The Court of Appeals noted West’s testimony that Georgia Power’s supervisors and inspectors were on-site to allow the contractors to access its plants, as well as to “set safety rules . . . supervise and direct cleanup for all trades, provide and loan tools to pipefitters, and had the authority to stop pipefitters from doing work.”
With regard to Ford, the Court of Appeals found that genuine issues of material fact existed, including the equal knowledge of risk and relinquishing possession and control questions. The Court of Appeals determined that Ford knew of the hazards of asbestos exposure as early as 1972, and knew of the presence of asbestos in its plant. Sinyard testified that he worked with and under the direction of Ford employees, and also used tools and materials from Ford. While Ford’s representative testified that Sinyard’s claims were “unlikely,” this conflicting testimony evidenced a genuine issue of material fact.
With regard to Piedmont, the Court of Appeals affirmed the trial court’s decision that Sinyard’s contractor had equal knowledge of the hazards of asbestos. The Court of Appeals noted the absence of evidence showing whether Piedmont had any policies to safely handle asbestos, nor did Piedmont provide any training to its employees on that subject. However, Sinyard’s employer did have knowledge of procedures to safely handle asbestos and provided that training to its employees. Sinyard’s employer also provided masks to its employees. As such, the Court of Appeals determined that Sinyard’s employer having “at least equal knowledge” to Piedmont was “sufficient to discharge the landowner’s duty to its invitees.” Thus, the Court of Appeals affirmed the judgment in part and reversed the judgment in part.