[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-8074
________________________
D. C. Docket No. 1:94-CV-2193-CC
RUST INTERNATIONAL CORPORATION,
Plaintiff-Third Party Defendant,
FARID HABEISHI,
Plaintiff-Third Party Defendant, Appellee,
versus
GREYSTONE POWER CORPORATION, an
Electric Membership Corporation,
Defendant-Third Party Plaintiff, Appellant,
JAMES CURTIS TERRY,
Third Party Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 26, 1998)
Before ANDERSON and BLACK, Circuit Judges, and MOORE*, Senior
District Judge.
PER CURIAM:
*
Honorable John H. Moore, II, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
This case arises from a motor vehicle accident in which a vehicle driven by
Appellee James Curtis Terry (Terry) and a vehicle driven by Appellee Farid
Habeishi (Habeishi) collided in an intersection where the traffic signal was
inoperative. Terry and Habeishi each suffered personal injuries, and Terry’s spouse
and Habeishi’s spouse both died as a result of the collision. Appellant Greystone
Power Corporation (Greystone) had contracted with Fulton County, Georgia, to
provide power to the traffic signals at the intersection. The jury returned a verdict
finding Greystone 75% liable for the accident. We address two issues raised by
Greystone on appeal: (1) whether Greystone had a duty of care to Terry, Habeishi,
and their respective spouses under Georgia law, and therefore can be held liable in
tort; and (2) whether the district court erred in apportioning liability for the
wrongful death actions based on Greystone’s percentage of fault rather than holding
each of the joint tortfeasors jointly and severally liable in equal proportions.1
I. FACTUAL AND PROCEDURAL BACKGROUND2
1
Greystone also raised the following issues on appeal: (1) whether the district court erred
in prohibiting Greystone from cross-examining Terry and Habeishi regarding the claims against each
other they previously had settled; and (2) whether the district court erred in not admitting testimony
from a law enforcement officer that the intersection had been navigated safely by vehicles passing
through it for several hours prior to the accident. After considering the briefs and record, we hold
that the district court did not err in either of these evidentiary rulings.
2
Because we are reviewing the denial of a renewed motion for judgment as a matter of law,
we consider the evidence, and state the facts in this part of the opinion, in the light most favorable
to Appellees Terry and Habeishi.
2
The traffic signals that controlled the intersection failed in the early morning
hours of August 23, 1992. Fulton County was informed of the power outage and
sent a technician to examine the intersection. Fulton County’s technician
determined that the problem was a lack of power flowing to the signals from
Greystone’s side of the power line. Fulton County notified Greystone of the
problem at 9:00 a.m. and Greystone immediately dispatched its own technicians.
Greystone’s technicians arrived at the scene between 9:05 and 9:10 a.m. and
inspected the connection between Greystone’s power wires and Fulton County’s
wires, which carried the power directly to the signals. Greystone’s technicians
erroneously concluded that the power failure occurred on Fulton County’s side of
the line and notified Greystone’s dispatcher at 9:30-9:35 a.m. that Fulton County
needed to make the repair.
The collision between Terry’s vehicle and Habeishi’s vehicle occurred at
10:00 a.m. After witnessing the collision, the Greystone technicians again
examined the connections and concluded that the problem was with the connector,
which Greystone had exclusive authority to repair. The Greystone technicians
repaired the connector, thereby restoring power to the signals. The repair effort
took 5-10 minutes to complete.
3
The procedural history of this case is fairly complex. Several claims were
settled. Four claims against Greystone were tried to the jury: (1) the claim of Terry
for Terry’s personal injuries; (2) the claim of Terry for the wrongful death of his
spouse; (3) the claim of Habeishi for Habeishi’s personal injuries; and (4) the claim
of Habeishi for the wrongful death of his spouse. The jury concluded that
Greystone was negligent and that Greystone’s negligence was a contributing
proximate cause of the collision. The jury found Greystone 75% at fault, Terry
15% at fault, and Habeishi 10% at fault.3 The district court denied Greystone’s
motion for judgment as a matter of law and Greystone’s renewed motions for
judgment as a matter of law.
II. GREYSTONE’S DUTY OF CARE
The parties dispute whether Greystone owed any duty of care to Terry and
Habeishi. For a plaintiff to recover in tort, the defendant must owe a duty of care
to the plaintiff.
Ga. Code Ann. §§ 51-1-1, 51-1-8; Robinson v. J. Smith Lanier &
Co.,
470 S.E.2d 272, 274 (Ga. 1996). Terry and Habeishi argue that Greystone
owes the same duty of care to the general public that tort law imposes on all
individuals in conducting their affairs, specifically that “a person owes to others a
3
The jury made the following valuations of the injuries suffered as a result of the accident:
$2,181,000 for Terry’s personal injuries; $2,050,000 for the life of Terry’s wife; $1,517,000 for
Habeishi’s personal injuries; and $3,000,000 for the life of Habeishi’s wife. Pursuant to the pretrial
stipulation, the district court entered judgment against Greystone for 75% of each of these amounts.
4
duty not to subject them to an unreasonable risk of harm.” Sutter v. Hutchings,
327
S.E.2d 716, 718 (Ga. 1985).4 Greystone responds that a utility company does not
owe a general duty of care to persons traveling through an intersection where the
signals are powered by the utility company.5 Greystone cites Tollison v. Georgia
Power Co.,
187 S.E. 181 (Ga. Ct. App. 1936), and Quinn v. Georgia Power Co.,
180
S.E. 246 (Ga. Ct. App. 1935), which stand for the proposition that a utility company
owes no duty to the general public where an accident occurs due to the company’s
failure to have a street lamp burning at the point of the accident. Quinn provides
two rationales for its holding: (1) the absence of contractual privity between the
power company and the general public; and (2) the absence of any duty upon the
city to provide lighting at the point of the accident. 180 S.E. at 248. Tollison arose
from the same accident as Quinn, and the Tollison court relied on both of Quinn’s
rationales. 187 S.E. at 182.
Terry and Habeishi argue in response that even if Greystone did not have a
general duty to maintain power to the intersection, Greystone assumed a specific
4
Sutter has been abrogated on other grounds as recognized in Riley v. H&H Operations,
Inc.,
436 S.E.2d 659, 660-61 (Ga. 1993).
5
Greystone also asserts that its actions were not the proximate cause of the accident.
Assuming that Greystone owed a duty of care to Terry and Habeishi, we hold that sufficient
evidence was presented for the jury to determine that Greystone’s conduct was one of the proximate
causes of the accident.
5
duty to travelers passing through this particular intersection by voluntarily
undertaking to repair the connector. Georgia has adopted § 324A of the Restatement
(Second) of Torts entitled “Liability to Third Person for Negligent Performance of
Undertaking,” which establishes that:
One who undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the protection of
a third person or his things, is subject to liability to the third person for
physical harm resulting from his failure to exercise reasonable care to
protect his undertaking, if (a) his failure to exercise reasonable care
increases the risk of such harm, or (b) he has undertaken to perform a
duty owed by the other to the third person, or (c) the harm is suffered
because of reliance of the other or the third person upon the undertaking.
Huggins v. Aetna Cas. & Sur. Co.,
264 S.E.2d 191, 192 (Ga. 1980). The parties
contest whether any of the three alternative criteria for imposing liability has been
satisfied. The evidence presented at trial supports the conclusion that Greystone
undertook to perform Fulton County’s duty to maintain the operability of the traffic
signals,6 or that Fulton County relied on Greystone to restore power to the intersection
because Fulton County was contractually prohibited from repairing the connector
itself.7 Accordingly, Greystone’s negligence occurred at the moment that its
6
Ga. Code Ann. § 32-6-50 (c) provides that “counties and municipalities shall place and
maintain upon the public roads of their respective public road systems such traffic-control devices
as are necessary to regulate, warn, or guide traffic . . . .”
7
At oral argument, Appellees’ counsel conceded that Greystone would have no liability had
it not undertaken the repair effort.
6
technician misdiagnosed the problem with the connector and therefore failed to
exercise reasonable care in making the repair.
The conclusion that Greystone voluntarily assumed a duty of care to Terry
and Habeishi is not affected by the holdings in Tollison and Quinn.8 The
Restatement, which was adopted after Tollison and Quinn, provides three methods
by which a party such as Greystone may assume a specific duty towards third
persons to whom it would not otherwise owe any duty. Tollison and Quinn do not
foreclose the possibility that a power company might assume a specific duty
towards third persons and then perform that duty in a negligent manner.
Accordingly, we hold that under Georgia law, Greystone assumed a duty of care
towards Terry and Habeishi to restore power to the intersection.
III. APPORTIONMENT OF LIABILITY
Greystone argues that the district court erred by apportioning the judgment
for the wrongful death claims among the three liable parties (Greystone, Terry, and
Habeishi). Under Georgia law, liability may be apportioned among joint tortfeasors
only if the plaintiff was negligent and was therefore partly responsible for the injury.
8
Although Appellees’ counsel have responded to the argument that Tollison and Quinn
provide blanket immunity from a duty of care voluntarily assumed by a power company,
Greystone has not made any argument in its briefs or at oral argument explaining why the
rationales of Tollison and Quinn would override the standards for voluntarily assuming a duty of
care pursuant to the Restatement.
7
Ga. Code Ann. § 51-12-33. If the plaintiff is not partly responsible for the injury,
joint tortfeasors are equally liable for the judgment, regardless of their relative
degree of responsibility. Gamble v. Reeves Transp. Co.,
190 S.E.2d 95, 97 (Ga. Ct.
App. 1972). After the jury determined that Greystone was 75% responsible and that
Terry and Habeishi were collectively 25% responsible, the district court apportioned
liability for damages by entering a judgment against Greystone for 75% of the
damages on all four claims.
Greystone does not dispute the district court’s apportionment for the personal
injuries suffered by Terry and Habeishi. Greystone argues that in a wrongful death
action, the relevant “plaintiff” is the deceased victim of the injury and not the
beneficiary bringing the suit, i.e., the deceased spouses of Terry and Habeishi and
not Terry and Habeishi themselves.9 Therefore, Greystone argues that the trial court
erred in apportioning liability based on each party’s percentage of fault because the
deceased spouses were not negligent.
9
Greystone’s theory is based on the derivative nature of a wrongful death action—it is not
an independent tort, but a method of allowing survivors to recover for the injuries suffered by the
decedent. Greystone contends that the plaintiff of each wrongful death claim is the deceased spouse
(Mrs. Terry and Mrs. Habeishi, respectively) and that each claim has two tortfeasors, each of whom
should be 50% liable: (1) Greystone; and (2) the non-spouse driver (i.e., Mr. Terry is the second
defendant of Mrs. Habeishi’s action, and Mr. Habeishi is the second defendant of Mrs. Terry’s
claim). Greystone suggests that Terry and Habeishi cannot be liable for the death of their own wives
because of spousal immunity, meaning that only two defendants are liable in each action.
8
Greystone is correct that Georgia law does look to the behavior of the
decedent in determining the relative liability of the defendant in a wrongful death
action. Southland Butane Gas Co. v. Blackwell,
88 S.E.2d 6, 9 (Ga. 1955);10 Rainey
v. City of East Point,
328 S.E.2d 567, 568-69 (Ga. Ct. App. 1985). However,
Georgia law also looks to the negligence of the beneficiary of the action and applies
the same principles of contributory and comparative negligence to the beneficiary
as it applies to the decedent. Happy Valley Farms v. Wilson,
16 S.E.2d 720, 725
(Ga. 1941) (establishing that when two beneficiaries bring a wrongful death action
and one beneficiary is partly responsible for the death, contributory negligence
principles are applied to the one-half of the judgment recovered by the negligent
beneficiary); Matthews v. Douberly,
428 S.E.2d 588, 590-91 (Ga Ct. App. 1993)
(finding that husband’s contributory negligence bars husband’s recovery in action for
wrongful death of wife, but does not bar child’s recovery). We hold that Georgia law
treats both the beneficiary and the decedent as plaintiffs when determining whether
to apportion liability in a wrongful death action.
IV. CONCLUSION
The district court properly determined that under the facts of this case,
Greystone owed a duty of care to Terry, Habeishi, and their respective spouses.
10
Blackwell was modified on other grounds by statute as recognized in Fountain v.
Thompson,
312 S.E.2d 788, 789 (Ga. 1984).
9
Furthermore, the district court did not err in apportioning the judgment among the
liable parties.
AFFIRMED.
10
