KEVIN SINYARD v. PIEDMONT HOSPITAL, INC. ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
March 10, 2022
In the Court of Appeals of Georgia
A21A1424. SINYARD et al. v. GEORGIA POWER COMPANY.
A21A1425. SINYARD et al. v. FORD MOTOR COMPANY.
A21A1426. SINYARD et al. v. PIEDMONT HOSPITAL, INC.
PINSON, Judge.
Kevin Sinyard worked as a pipefitter for more than 25 years. From 1975 to
1989, he was employed by the local pipefitters union and worked for various
contractors as a pipefitter on projects at Georgia Power Company, Ford Motor
Company, and Piedmont Hospital. In 2014, Sinyard was diagnosed with malignant
pleural mesothelioma. He and his wife sued Georgia Power, Ford, and Piedmont,
claiming that his disease was caused by his exposure to asbestos while working at
facilities owned by these three companies. The trial court granted complete summary
judgment in favor of each defendant, and the Sinyards now appeal.
In A21A1424, Sinyard appeals from the trial court’s order granting summary
judgment in favor of Georgia Power. We affirm the trial court’s order in part: we
agree that Georgia Power is immune from tort liability related to Sinyard’s work on
the new Units at Plants Scherer and Vogtle because Georgia Power was acting as a
contractor and thus was a “statutory employer” entitled to such immunity under the
Workers’ Compensation Act. But we agree with Sinyard that genuine issues of
material fact preclude summary judgment as to the remaining issues: (1) whether
Sinyard had equal knowledge of the specific risks of exposure to asbestos at the time
he worked at the Georgia Power plants; (2) whether the narrow “hired worker”
exception relieves Georgia Power of its ordinary duty towards Sinyard as an invitee;
and (3) whether Georgia Power had relinquished control and possession of the
premises to Sinyard’s employers, which would have also relieved it of that duty.
In A21A1425, Sinyard appeals from the trial court’s order granting summary
judgment to Ford. Here, too, we conclude that genuine issues of material fact
preclude summary judgment, including (1) whether Sinyard had equal knowledge of
the specific hazards posed by asbestos at the Ford plant, and (2) whether Ford
relinquished possession and control over the relevant portion of the plant.
2
In A21A1426, Sinyard appeals from the trial court’s grant of summary
judgment to Piedmont. Here, we affirm the trial court’s order because the evidence
viewed in the proper light shows that McKenney’s—Sinyard’s employing contractor
for his work at Piedmont—had equal knowledge of the specific hazards of asbestos
and its presence at Piedmont.
Background
Viewed in the light most favorable to Sinyard, the nonmovant,1 the record
shows that Sinyard was a pipefitter for more than 25 years and worked for more than
41 contractors at various job sites across Georgia.2 From 1975 to 1989, Sinyard
1
Martin v. Herrington Mill, LP, 316 Ga. App. 696, 696, n. 1 (730 SE2d 164)
(2012).
2
At the outset, we note that the record before us consists of more than 24,000
pages contained in 75 volumes. It is not the function of this Court to “cull the record
on behalf of a party, particularly in a case such as this where the record is
voluminous.” Callaway v. Willard, 351 Ga. App. 1, 5 (1) (830 SE2d 464) (2019)
(citation omitted); see Harris v. State, 256 Ga. App. 120, 122 (2) (567 SE2d 394)
(2002) (“We have repeatedly held that it is not the function of this [C]ourt to cull the
record on behalf of a party. This is particularly true in a case such as this where the
transcript alone exceeds 1,500 pages.”) (footnote and punctuation omitted). So, while
it appears the parties’ briefs and our independent review of the record have identified
the portions of the record relevant to this appeal, we caution that “if we have missed
something in the record or misconstrued an argument, the responsibility rests with
[the parties’] counsel.” Cawthon v. State, 350 Ga. App. 741, 743 (830 SE2d 270)
(2019) (citation and punctuation omitted).
3
worked for contractors on projects at Piedmont, Georgia Power, and Ford. We will
first review Sinyard’s knowledge of the risks of asbestos at the relevant times, and
then we will describe Sinyard’s work for each of the three defendants.
(a) Sinyard’s Knowledge of the Risks of Asbestos
Sinyard was a member of Local Plumbers, Pipefitters & HVAC Technicians
Union 72 in Atlanta from 1978 until 1996. After Sinyard completed high school, he
did an apprenticeship program with the local union. The national union distributed
a monthly newsletter called the “UA Journal” that was delivered to its members’
homes. Beginning in 1971, these newsletters occasionally contained articles regarding
the dangers of asbestos exposure. Sinyard testified that he “never read” the
newsletters because they looked like “junk mail.”
Sinyard testified that he did not learn of the specific risks of developing cancer
or other diseases as a result of exposure to asbestos until the late 1980s. Sinyard
explained that, as part of his apprentice training in 1978, he was taught that if he
identified asbestos, he was supposed to wear an “Armstrong-style” paper mask and
“wet it down” to minimize the creation of dust while he worked. Sinyard testified that
he never wore a respirator mask or protective suits while working with asbestos. He
had never been given formal training by the union or his supervisors about how to
4
identify asbestos, but rather had learned in the late 1980s “through the ranks and
through the knowledge of the people that were on the job.” He also did not recall any
discussion of asbestos at local or national union meetings that he attended.
Sinyard’s union foreman, Eugene West, testified that the union pipefitters
lacked knowledge of the dangers posed by asbestos in the 1980s. He explained that,
because he was a supervisor, the pipefitters union would have informed him before
rank-and-file members about dangerous working conditions, but he did not learn
about the specific health risks posed by asbestos until the late 1980s. West testified
that although he knew asbestos was “bad for you” as early as the late 1970s, he
“didn’t realize it was so dangerous” or that it could cause mesothelioma until the late
1980s.
(b) Georgia Power
(i) Sinyard’s Work at Georgia Power Plants
Sinyard performed work as an independent contractor for four Georgia Power
plants—Scherer, Branch, McDonough and Vogtle—between 1979 and 1986. Sinyard
was never directly employed by Georgia Power, and his work was not continuous
during this time; instead, he would work for four to six weeks when needed, which
was approximately once a year.
5
Georgia Power was the majority owner of Plants Scherer and Vogtle. The
minority co-owners were Municipal Electric Authority of Georgia, the City of Dalton,
and Oglethorpe Power Company. Under the terms of its agreements with the co-
owners, Georgia Power assumed “sole . . . responsibility” for the construction and
planning of the new Units at Plant Scherer and Plant Vogtle. Sinyard worked at Plant
Scherer as an independent contractor with two companies, Power Piping and
Combustion Engineers, on and off between 1980 and 1983. He worked all over the
facility, but primarily in the boiler areas, main steam lines, and the turbine areas
during the construction of Units 1, 2, and 3 while each Unit was being built. Sinyard
worked at Plant Vogtle as a pipefitter during the new construction of Units 1 and 2
in 1985.
Sinyard worked at Plant McDonough on two occasions in 1983 for Combustion
Engineering and Cleveland Consolidated. Sinyard testified that, while doing
maintenance work at Plant McDonough during plant shutdowns, he worked next to
the boiler and had “to tear the insulation and stuff all around the boiler” and related
piping systems. He recalled installing valves manufactured by Crane and Honeywell,
pumps manufactured by Ingersoll Rand and Garlock, and gaskets manufactured by
Garlock. To install these new items, he had to break “apart the old system, scraping
6
all the old gaskets off and brushing them off and then putting in [the] new valve. . .
torque it up to spec [and] tighten up all [the] packings.” This work created dust that
he would breathe in. Sinyard testified that there were no warnings or labels regarding
the dangers of asbestos on these products or around the facilities.
Sinyard worked at Plant Branch in 1982 and 1983 as an independent contractor
with Cleveland Consolidated and in 1986 as an independent contractor with Atlanta
Steel. He performed maintenance during plant shutdowns, which included replacing
old Ingersoll Rand pumps with new pumps. West testified that he supervised Sinyard
while working at Plant Branch, and that they worked with Crane, Honeywell, and
Ingersoll Rand valves while working there.
(ii) Asbestos at Georgia Power Plants
A representative for Georgia Power testified that Georgia Power has used
asbestos gaskets, asbestos packing, and asbestos insulation in its plants since the
1930s and continued to stock asbestos products as late as 1992. The representative
agreed that asbestos-containing materials existed in all of Georgia Power’s plants
during the period of Sinyard’s employment. Georgia Power records confirm that
Crane and other asbestos gasket and packing material identified by Sinyard was
7
installed in Georgia Power facilities. West testified that Georgia Power’s plants
contained “miles” of pipe that was insulated with asbestos.
(iii) Georgia Power’s Knowledge of the Risks of Working with Asbestos
Georgia Power’s representative testified that Georgia Power knew that
asbestos-containing materials were present in its plants. She also testified that the
company knew—before Sinyard began work at the facilities—that a person who is
exposed to asbestos could contract mesothelioma. Georgia Power admitted that it was
aware of OSHA’s earliest regulations relating to asbestos as early as 1972, that the
National Institute for Occupational Safety and Health published standards in 1976
that informed Georgia Power that cases of mesothelioma had been associated with
exposures to asbestos “as brief as one day,” and that it was aware that scientific
literature from as early as 1973 showed that exposure to asbestos caused cancers such
as mesothelioma.
In response, Georgia Power enacted policies and procedures to protect its own
employees from asbestos exposure. In 1977, Georgia Power drafted an interim policy
concerning “Use of Asbestos and Asbestos Products” addressed to production
managers, operating managers, construction managers, and construction
superintendents that acknowledged asbestos as part of Georgia Power’s “hazardous
8
materials control program.” Georgia Power’s representative further admitted that in
1981, it received Material Safety Data Sheets relating to the Crane asbestos packing
used in its plants advising of safety precautions necessary when disposing of old
material to protect human health. In 1982, Georgia Power educated and trained its
own union employees about the dangers of asbestos, how to wear protective gear, and
how to properly handle and dispose of asbestos in Georgia Power facilities.
Further, in 1983, Georgia Power regulated the use of asbestos gaskets under
its Chemical Control Program and required its own employees to “pass Health Hazard
Data . . . and special precaution information along to GPC employees coming in
contact and/or working with [the] material.” The representative also testified that in
the 1980s, Georgia Power required any employees working with asbestos to “follow
procedures that included wetting the surface, using glove bag technique, and isolating
the asbestos fibers that were being released into the air from the breathing zone of the
worker.” Although Georgia Power provided respirators to its own employees certified
for use to protect against asbestos dust, it never provided respirators to pipefitters
working for outside contractors, such as Sinyard.
Georgia Power did not communicate this knowledge about the dangers of
asbestos exposure to Sinyard’s employing contractors. Further, Georgia Power never
9
provided pipefitters with asbestos hazard warnings and never posted such warnings
at the plant despite internal policies requiring it to do so. Instead, Georgia Power
relied upon the contractors “to make a determination as an employer if you’re
exposing your employees to asbestos or not.” Georgia Power’s representative testified
that when the company hired “contractors . . . it is included in their contract that they
adhere to the rules of OSHA, federal, state, local law.”
(c) Ford Motor Company
(i) Sinyard’s Work at Ford Motor Company
Between 1981 and 1995, Sinyard worked for various independent contractors
hired to do intermittent work at Ford’s vehicle assembly plant in Hapeville. Sinyard
worked at the Hapeville plant during various jobs from 1981 to 1985 for Cleveland
Consolidated and on a job for Mann Mechanical in 1986 during a plant shutdown.
Each time Sinyard was assigned to work at the Ford plant, his wages and benefits
came from Local Union 72.
(1) Cleveland Consolidated (1981-1985)
When working for Cleveland Consolidated, Sinyard recalled that he performed
“fill-in” maintenance work at the Hapeville plant on several occasions between
1981and 1985. Sinyard worked on the plant’s piping systems doing less desirable
10
weekend, overnight and holiday shifts when Ford employees did not want to work.
Ford’s representative testified that he was “surprised” that non-UAW union members
would perform fill-in maintenance at the Hapeville plant, but concedes that such a
practice might have been permitted if there was not a UAW union member willing to
work during those shifts.
Sinyard deposed that he worked “all over” the Hapeville plant. His job
involved replacing and adjusting gaskets and packing material. He explained that
when he performed this fill-in work, he would work with a “Ford crew or one of
[Ford’s] supervisors or one of their pipefitters on shift,” and that there were other
tradespeople working in the same area who were also overseen by Ford’s
maintenance supervisors.
(2) Mann Mechanical (1986)
Sinyard testified that he worked at the Hapeville plant during a shutdown while
employed by Mann Mechanical in 1986. His work at the plant involved “weld water,”
compressed air, and heating systems, and he worked in the ceiling, underbody and
paint areas of the plant. Sinyard testified that, during this period, Ford employees
would give directions regarding the job site to his supervisor with Mann Mechanical,
11
who would then give direction to him. He recalled that Ford provided the equipment
that he installed during this project.
(ii) Asbestos at the Hapeville Plant
Ford’s representative testified that there was asbestos present throughout the
Hapeville plant from the time it opened in 1947 until it was demolished. Ford used
asbestos gaskets and asbestos packing in the plant during the years that Sinyard was
employed there.
(iii) Ford’s Knowledge of the Hazards Posed by Asbestos
Ford’s representative admitted that the company was aware as early as 1972
that asbestos was a toxic substance that should not be disturbed in the workplace.
Ford implemented internal policies to protect its employees from being exposed to
asbestos in the plant. In the 1980s, Ford had an internal policy that employees should
not disturb asbestos if other workers were present, and that an employee was to
inform a supervisor if he saw “white powder” so that it could be abated by an outside
contractor. A bulletin created by Ford’s Employee Health Services Department in
1983 informed employees that “[m]ost boiler, furnace, steam, and condensate piping
insulation installed prior to 1975 contains asbestos,” and that disturbance of asbestos
fibers posed a danger to all workers in the area of the disturbance. However, there is
12
no evidence that Ford ever warned outside contractors of the location of asbestos in
the plant or the dangers of working around asbestos. Further, Ford never posted any
asbestos labels on any of the asbestos-containing materials at the Hapeville plant or
posted asbestos warnings on any equipment at the plant that had asbestos in its
component parts or insulation encasing it. Although the representative testified that
Ford “vetted” outside contractors before hiring them to work around asbestos, he
could not provide details about the vetting process.
(d) Piedmont Hospital
(i) Sinyard’s Work at Piedmont Hospital
Sinyard worked full-time as an outside contractor with McKenney’s doing
pipefitting at Piedmont from 1986 until 1989. Sinyard testified that while working at
Piedmont, he did two different kinds of work: (1) helping with the construction of a
new OR/ICU addition to the hospital under the supervision of a general contractor
and (2) doing “maintenance” work on existing piping systems under the direct
supervision of Piedmont’s director of maintenance.
Sinyard explained that his primary exposure to asbestos at Piedmont came from
his removal of existing asbestos insulation and asbestos cement that covered the pipes
he was instructed to repair, or tie-in to, that were connected to the hospital’s boiler
13
system. When he installed new valves or did maintenance work on existing
valves—which he did on a “daily or weekly” basis—he would tear “out any tie-ins
for the old systems” and “tear into the old insulation there in the hospital and make
all the tie-ins on that” to the new boiler system. He removed existing asbestos
insulation from the pipes and valves by cutting it away with a hacksaw. Sinyard
explained that he would “wet it down” in an effort to avoid creating “dust, but . . . you
could only stop so much. So we’d wet it down, cut it . . . then sweep it up” when they
were done. Sinyard believes he was also exposed to asbestos at Piedmont when he cut
penetration holes through existing asbestos transite wallboards using a handsaw to
create openings for new pipe.
(ii) McKenney’s Knowledge of Asbestos
The corporate representative for McKenney’s agreed that in the 1980s, the
company was aware “that there were asbestos pipe insulation, asbestos gaskets, or
asbestos containing products and materials [that] can be found at a hospital like
Piedmont.” McKenney’s further agreed that it was aware that asbestos was “used
commonly up until the ‘90s” in drywall compound, ceiling tile, floor tile, insulation
[and] heat blankets” and thus, it knew in the 1980s that its workers, including
Sinyard, were likely to encounter asbestos. McKenney’s confirmed that it did not
14
retain any written policies or procedures relating to asbestos it may have had at that
time. However, its representative testified that the company’s “awareness of asbestos
. . . evolved over many, many years, probably starting as early as the ‘70s. . . And how
to deal with it, how to recognize it, how to be safe with it was an evolution.” The
representative testified that in 1985, McKenney’s knew that if a worker encountered
asbestos at a workplace, it “need[ed] to be dealt with” by wearing a mask and wetting
the asbestos to eliminate dust, by informing the premises owner to abate the asbestos,
or by hiring a subcontractor to abate it.
(iii) Piedmont’s Knowledge of the Dangers of Asbestos
By 1976, Piedmont was aware that OSHA regulations and a NIOSH
publication pertaining to asbestos stated that exposures to asbestos as brief as one day
were recognized as a cause of mesothelioma. In 1985, an environmental specialist
with the Air Pollution Compliance Program at the Georgia Department of Natural
Resources sent a letter to Piedmont instructing the hospital that although
encapsulation of asbestos is an “acceptable . . . abatement method,” such a method
would not prevent future release of asbestos fibers if the material became “physically
disturbed” and thus, Piedmont should place caution signs on items containing
15
asbestos, initiate an inspection and maintenance program to monitor asbestos, and
maintain proper building records of its location.
Despite this instruction, Piedmont did not establish a system for maintaining
building records to identify asbestos or place asbestos warning signs on anything in
the hospital. Further, Piedmont never provided information about the presence or
location of asbestos in its facilities to its own employees or outside contractors
working on its premises. Instead, Piedmont relied upon the “training” that outside
contractors “provide[d] for their workers” to identify and safely handle asbestos.
(e) Procedural history
In 2014, Sinyard was diagnosed with malignant pleural mesothelioma. In 2016,
Sinyard and his wife filed a lawsuit against Georgia Power, Ford , and Piedmont
alleging premises liability, loss of consortium and punitive damages, claiming that
his disease was caused by exposure to asbestos while working at facilities owned by
these three companies. After a hearing, the trial court granted summary judgment in
favor of each defendant, and the Sinyards appeal from those orders.
16
Discussion
We review orders granting summary judgment de novo. Davis v. John Crane,
353 Ga. App. 243, 243 (836 SE2d 577) (2019). Summary judgment is proper when,
viewing the evidence and any inferences drawn from it in the light most favorable to
the non-moving party, there remains no genuine issue of material fact and so the
moving party is entitled to judgment as a matter of law. Id. Here, we apply that
standard to the trial court’s orders granting summary judgment to Georgia Power,
Ford, and Piedmont, in that order.
Case Number A21A1424. Sinyard et al. v. Georgia Power Company.
In Case No. A21A1424, Sinyard appeals from the trial court’s grant of
summary judgment to Georgia Power. Sinyard’s claims against Georgia Power are
based on the company’s alleged negligence in failing to properly maintain its
premises and in failing to provide sufficient warnings of the presence of asbestos and
the dangers posed by exposure to asbestos from 1979 to 1986, the period he worked
on its premises. He contends that the trial court erred in concluding that (1) Georgia
Power was immune from tort liability under the Workers’ Compensation Act for his
work on new Units at Plant Scherer and Plant Vogtle; (2) the company did not owe
a duty to Sinyard to keep its premises safe; (3) Sinyard failed to establish that he was
17
exposed to asbestos at Georgia Power plants; and (4) the statute of repose barred
Sinyard’s claims. We agree with the trial court that Georgia Power is immune from
tort liability for the work on the new Units, but we conclude that genuine issues of
material fact preclude summary judgment on the remaining issues.
1. “Statutory Employer” Immunity for Work at Plants Scherer and Vogtle
When employees are injured in the course of their employment, their remedy
against their employer is generally a workers’ compensation claim; with some
exceptions, the Workers’ Compensation Act immunizes the employer against tort
claims. OCGA § 34-9-11 (a) (“The rights and the remedies granted to an employee
by this chapter shall exclude and be in place of all other rights and remedies of such
employee, . . . and all other civil liabilities whatsoever at common law or otherwise,
on account of such injury . . . .”).
The Act’s liability for workers’ compensation and corresponding immunity
from tort liability obviously apply to the immediate employer. But they also apply to
what are known as “statutory employers”: the “principal, intermediate, or
subcontractors” who have contracted with the employee’s immediate employer for
the subject matter in which the employee was engaged. OCGA § 34-9-8 (a); see
Manning v. Georgia Power Co., 252 Ga. 404, 405 (314 SE2d 432) (1984) (explaining
18
the “statutory employer doctrine”); Holton v. Ga. Power, 228 Ga. App. 135, 136 (491
SE2d 207) (1997) (“The secondary liability and corresponding immunity [for
statutory employers] apply to those who contract to perform certain work then sublet
that work in whole or in part.”).
Whether someone is a statutory employer typically turns on whether they are
a “contractor.”Yoho v. Ringier of Am., Inc., 263 Ga. 338, 341 (434 SE2d 57) (1993)
(Under “Manning, only a ‘contractor’ can be a statutory employer.”). So, a company
is not a statutory employer if it merely owns (or is in possession and control of) the
premises where an employee is injured. Manning, 252 Ga. at 405. But if that owner
has also “undertake[n] to perform work for another” on the premises, Yoho, 263 Ga.
at 341, it can “attain ‘contractor’ status” and so qualify as a statutory employer.
Holton, 228 Ga. App. at 136. Put another way, “[a]n owner who owes a secondary
duty to another to perform a contractual duty is a ‘contractor’ within the meaning of
OCGA § 34-9-8 (a).” Id. (citation omitted).
Here, the trial court correctly concluded that Georgia Power was a statutory
employer with respect to Sinyard’s work completed during construction of the new
Units at Plant Scherer and Plant Vogtle. The record shows that Georgia Power is the
majority owner of both plants, with the balance owned by Municipal Electric
19
Authority of Georgia, the City of Dalton, and Oglethorpe Power Company. But under
the terms of the purchase and ownership-participation agreements with these co-
owners, Georgia Power assumed “sole . . . responsibility” for the “planning, licensing,
design, construction, operation . . .” of the new Units to be built at Plant Scherer and
Plant Vogtle. Thus, Georgia Power was by agreement obligated to the other owners
to build the plants’ new Units.3 By hiring Sinyard’s employing contractors for the
construction of new Units at Plants Scherer and Vogtle, Georgia Power was fulfilling
its obligations as principal contractor. See Yoho, 263 Ga. at 341. We have already
concluded that such a role qualifies Georgia Power as a statutory employer under
OCGA § 34-9-8. See Holton, 228 Ga. App. at 136 (holding that Georgia Power, as
majority owner of power plant and as principal contractor contractually obligated to
other co-owners for plant’s maintenance, was plaintiff’s statutory employer and was
entitled to workers’ compensation immunity from his tort claims); Yoho, 263 Ga. at
341. Compare Manning v. Ga. Power Co., 252 Ga. 404, 404 (314 SE2d 432) (1984)
(when plaintiff worked for painting company hired by Georgia Power to work on its
3
Sinyard contends that Georgia Power’s parent company, Southern Services
Company, was “actually responsible for overseeing construction and maintenance
activities” at Georgia Power plants during Sinyard’s employment there. But Sinyard
fails to cite anything in the record in support of this contention, so it fails. See Harris,
256 Ga. App. at 122 (2).
20
plant, Georgia Power was not a “principal contractor” under OCGA § 34-9-8 because
it did not contract with another to perform work for another’s benefit), with Ramcke
v. Ga. Power Co., 306 Ga. App. 736, 737–38 (1) (703 SE2d 13) (2010) (when there
was no evidence that Georgia Power undertook a contractual obligation to perform
work on the project for another, but merely hired another to perform the project work,
Georgia Power was not a statutory employer).
Because Georgia Power was Sinyard’s statutory employer for his work during
construction of the new Units at Plants Scherer and Vogtle, the trial court correctly
granted summary judgment to Georgia Power as to Sinyard’s claims to the extent they
seek recovery in connection with that specific work.
2. Duty Issues
By statute, property owners owe a duty to those invited onto their premises to
“exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-
1. The trial court concluded that Georgia Power did not owe this duty to Sinyard as
a matter of law for three separate reasons: (a) Sinyard had equal knowledge of the
risks of exposure to asbestos at the time; (b) the narrow “hired worker” exception
relieved it of that duty; and (c) Georgia Power had relinquished control and
possession of the premises to Sinyard’s employers. Sinyard contends that issues of
21
material fact preclude summary judgment on each of these grounds. We address each
in turn.
(a) Superior Knowledge
The “fundamental basis” for an owner or occupier’s liability in premises-
liability cases is the owner’s “superior knowledge of the hazard encountered by the
plaintiff.” Travis v. Quiktrip Corp., 339 Ga. App. 551, 553 (1) (794 SE2d 195) (2016)
(citation and punctuation omitted). So, to recover on a premises liability claim, a
plaintiff must show both that (1) the owner had “actual or constructive knowledge of
the hazard” and (2) the plaintiff “lacked knowledge of the hazard despite the exercise
of ordinary care due to actions or conditions within the control of the
owner/occupier.” Travis, 339 Ga. App. at 553 (1). See Robinson v. Kroger Co., 268
Ga. 735, 748 (493 SE2d 403) (1997) (ordinarily, findings concerning relative
negligence and knowledge of a hazard are the province of the jury). In assessing the
relative knowledge of the parties, the question is whether they were accurately
informed about the specific hazard or danger in question. See St. Joseph’s Hosp. of
Atlanta, Inc. v. Hall, 344 Ga. App. 1, 3 (806 SE2d 669) (2017) (concluding that
owner lacked superior knowledge where hospital knew generally about hazards of ice
but didn’t know about the “specific invisible ice hazard” that caused a slip and fall);
22
Fouch v. Bicknell Supply Co., 326 Ga. App. 863, 873 (2) (756 SE2d 682) (2014)
(holding that jury question remained whether sandblaster was aware of the “specific
risks” of using the defendant’s products where he admitted that he knew of the
“general risks” associated with sandblasting and that he was required to wear
respiratory protection, but expert testified that small employers did not fully
appreciate the risks of sandblasting and the potential for developing silicosis as a
result of sandblasting, and that the plaintiff’s supervisor wrongly believed that a
respirator and mask were sufficient protection).
Here, the record is clear that Georgia Power knew at the time that asbestos
material was present throughout its plants and that even brief exposure was harmful
to human health. Georgia Power was aware that scientific literature from as early as
1973 showed that exposure to asbestos caused cancers such as mesothelioma, and that
OSHA regulated asbestos usage as early as 1976. In 1981, Georgia Power also
received material safety data sheets from John Crane—a manufacturer of gaskets used
in Georgia Power’s plants—about safely handling asbestos packing. As a result,
Georgia Power trained its own union employees on the dangers of asbestos exposure
and how to properly handle and dispose of asbestos, established internal procedures
23
for its own employees about working with asbestos, and gave its own employees
respirators certified to protect against asbestos dust.
As for Sinyard’s knowledge, we agree with him that there remains a genuine
dispute of material fact whether he had actual or constructive knowledge of the
“specific risks” caused by exposure to asbestos when he worked at Georgia Power.
The evidence shows that Sinyard knew how to identify asbestos by the time he
worked at Georgia Power, but there is a question of fact as to whether he had accurate
knowledge of the specific risks of asbestos exposure. There is evidence that in 1978,
when he was an apprentice, Sinyard was taught how to recognize asbestos and that
he was supposed to wear an “Armstrong-style” paper mask—not a respirator—and
to “wet it down” to minimize dust while he worked. But Sinyard testified that he had
never worn a respirator mask or protective suits while working with asbestos. Nor had
he ever had formal training from the union or at his job sites about how to identify
and safely handle asbestos, or about the specific health hazards posed by even
minimal exposure to asbestos dust. What he did learn, he learned “through the ranks”
as he progressed later in his career.
There is further evidence from which a jury could conclude that neither
Sinyard nor West, his direct supervisor with the Union, had knowledge equal to
24
Georgia Power’s about the hidden dangers of asbestos during his tenure at Georgia
Power plants—in particular, that exposure to asbestos particles in even small amounts
is hazardous to human health and required specialized equipment and handling to
protect workers. West testified that the union pipefitters lacked knowledge of the
dangers posed by asbestos in the 1980s. West explained that although he knew
asbestos was “bad for you” as early as the late 1970s, he “didn’t realize it was so
dangerous” or that it was a carcinogen until the late 1980s. Although Georgia Power’s
employees were provided respirators, Sinyard and West testified that they were
instructed only to wear paper masks while working with asbestos. A jury could
conclude based on this evidence that Georgia Power’s knowledge of the specific risks
of asbestos exposure was superior to Sinyard’s. See Fouch, 326 Ga. App. at 872-73
(2). Compare Law v. Chemtall, Inc., 342 Ga. App. 374, 377 (802 SE2d 408) (2017)
(independent contractor deemed to have “full knowledge” of the potential chemical
dangers from a tank farm where premises owner specifically warned independent
contractor of such dangers by posting signs concerning the presence and dangers of
sodium hydroxide and mandating that independent contractor provide safety training
to its employees).
25
Georgia Power contends that Sinyard had actual or constructive knowledge of
the specific risks posed by asbestos exposure because the national organization of his
pipefitters union published occasional articles in a newsletter about the dangers of
asbestos as early as the 1970s. For a number of reasons, we are not persuaded that the
existence of those articles establishes actual or constructive knowledge as a matter
of law. First, Sinyard was directly employed by local Union 72 and various
contractors, not by the national union that published those articles. Second, there is
no evidence that Sinyard was provided with copies of the UA Journal that were
published prior to 1982; Georgia Power acknowledges that the articles they rely on
“were published before Sinyard started work as a pipefitter in 1978.” Third, a jury
could reasonably conclude that he did not read newsletters sent to his house after that
time, which he viewed as “junk mail.” See, e.g., Hoschar v. Appalachian Power Co.,
739 F.3d 163, 175 (IV) (4th Cir. 2014) (mere existence of a NIOSH publication that
was “disseminated through various means and . . . generally available” to defendant
was insufficient to give rise to a duty based upon constructive knowledge to warn of
bird manure and the risk of histoplasmosis). Fourth, there is some evidence that the
contractors that Sinyard performed work under did not know about the specific risks
of asbestos at the relevant time: West testified that the pipefitters were generally
26
unaware of such risks, and none of the contractors provided respirators or other
protections to those working in the presence of asbestos. And finally, Sinyard
testified that asbestos was not discussed at any of the local or national union meetings
he attended. Given this evidence, we cannot conclude as a matter of law that the
existence of a handful of articles in a national union newsletter gave Sinyard or his
direct employers sufficient notice of the specific dangers posed by asbestos.
In sum, viewing the evidence and inferences that can be drawn from it in the
light most favorable to Sinyard, there remains a genuine issue of material fact whether
Georgia Power had superior knowledge of the specific dangers here. A jury could
conclude that Sinyard had equal knowledge of those specific dangers, but we cannot
say that it would be compelled to reach that conclusion as a matter of law. Compare
Fouch, 326 Ga. App. at 873 (2), with Williams v. Johnson, 344 Ga. App. 311, 318 (1)
(809 SE2d 839) (2018) (no issue of material fact existed as to whether plaintiff had
equal knowledge of the hazards posed by mirror shards attached to a wooden board
when he knew that glass is sharp and was aware of the specific risk that glass could
cut him if handled improperly).
27
(b) “Hired Worker” Exception
Sinyard contends that the trial court also erred by concluding that Georgia
Power owed no duty to Sinyard under the so-called “hired worker” exception. We
agree. The hired worker exception is a narrow, specific “expression of the doctrine
of assumption of [the] risk.” Carter v. Country Club of Roswell, Inc., 307 Ga. App.
342, 346 (705 SE2d 170) (2010). It can apply when the property is an “inherently and
obviously unsafe area, such as a construction or demolition site, and the worker is
hired to assist in the repair, construction, or demolition of the site.” Garcia v. KRC
Alderwood Trails, LLC, 348 Ga. App. 84, 89 (819 SE2d 713) (2018). Accord Forest
Cove Apts., LLC v. Wilson, 333 Ga. App. 731, 735 (776 SE2d 664) (2015). But we
have said that when the exception applies, it is because such a worker has “actual
notice of the dangers associated with the work and has the opportunity to observe the
situation and assess the risks for himself.” Id. And we have stressed that the exception
applies as a matter of law “only in clear and palpable cases, where it appears that a
hired worker or independent contractor recklessly tests an observed and clearly
obvious peril, or voluntarily assumes a position of imminent danger.” Id. Here, as we
just concluded, a question of material fact remains as to Sinyard’s knowledge of the
28
specific dangers posed by asbestos exposure. That conclusion precludes summary
judgment on this issue, too. Garcia, 348 Ga. App. at 90.
(c) Relinquishment of Possession and Control
The duty of care that property owners owe to their invitees does not extend to
employees or invitees of an independent contractor hired to do work on the premises,
if two conditions exist: (1) the owner “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 Inv. Mgmt., Inc.,
195 Ga. App. 54, 54 (392 SE2d 272) (1990). Accord Campbell, 360 Ga. App. at 424
(1). “Possession means ‘having personal charge of or exercising the rights of
management or control over the property in question,’ and ‘custody and control are
the commonly accepted and generally understood incidents of possession.’” West v.
Briggs & Stratton Corp., 244 Ga. App. 840, 846 (536 S.E.2d 828) (2000).
Here, there is evidence from which a jury could conclude at least that Georgia
Power did not relinquish possession of the relevant premises. West testified that
“when you stepped on Georgia Power property, you were under their direction, what
they told you, where you could work, what areas you could work in and where and
what time you could do it.” West explained that Georgia Power was “in control there
29
the whole time. . . they didn’t turn it over to us, you know. They were there to make
sure that it was done right.” Georgia Power controlled when pipefitters and other
contractors could access its plants. Georgia Power supervisors and inspectors were
in charge of the areas where pipefitters worked, “watched us to make sure that we did
it right,” and inspected the final product. And every time the job specifications had
to be changed to meet the demands of the job, West had to consult with Georgia
Power supervisors and engineers before proceeding with the work. Finally, Georgia
Power set safety rules that had to be followed, supervised and directed cleanup for all
trades, provided and loaned tools to pipefitters, and had the authority to stop
pipefitters from doing work.
Given this evidence, a genuine dispute of fact remains as to whether Georgia
Power relinquished possession to the contractors that employed Sinyard. See Johnson
v. Kimberly Clark, 233 Ga. App. 508, 510-511 (504 SE2d 536) (1998) (fact issue
existed as to control of the premises because there was no evidence that the
independent contractor had full and complete control of the premises where the work
was being done). Compare Ramcke, 306 Ga. App. at 740 (3) (“The fact that the
contract provided that [the owner] could inspect the work to ensure compliance with
contract terms, or even stop the work if it was not in compliance, did not amount to
30
a right to control the time or manner of the work,” and thus summary judgment for
the owner was proper).
3. Causation
Causation is a necessary element of any premises-liability claim. Walker v.
Aderhold Props., Inc., 303 Ga. App. 710, 714 (2) (694 SE2d 119) (2010). For
asbestos-exposure cases, the “threshold” question is whether “an injured plaintiff was
exposed to asbestos-containing products for which the defendant is responsible.”
Hoffman v. AC&S, Inc., 248 Ga. App. 608, 611 (2) (548 SE2d 379) (2001)
(punctuation and footnote omitted). To survive summary judgment in such a case, a
plaintiff must present evidence from which a jury could conclude that he was exposed
to “defendant’s asbestos-containing product . . . at the job site and that the plaintiff
was in proximity to that product at the time it was being used.” Id. (footnote and
punctuation omitted). To meet this burden, a plaintiff may provide testimony
establishing these facts from personal knowledge or offer “testimony of co-workers
who can identify [the] plaintiff by name as having worked with or around a particular
defendant’s asbestos-containing products.” Id. (footnote and punctuation omitted).
But “[g]uesses or speculation which raise merely a conjecture or possibility are not
31
sufficient to create even an inference of fact for consideration on summary
judgment.” Id. (footnote and punctuation omitted).
Here, Sinyard’s own testimony creates an issue of material fact as to whether
he was exposed to asbestos-containing products while working at Georgia Power
facilities. Sinyard testified that while doing maintenance at Plant McDonough during
plant shutdowns, he worked next to the boiler and had “to tear the insulation and stuff
all around the boiler” and related piping systems. Sinyard testified that when doing
this work, he installed valves manufactured by Crane and Honeywell and pumps
manufactured by Ingersoll Rand, among others. Sinyard also specifically remembered
putting packings in Garlock brand pumps and removing Garlock brand gaskets while
at Plant McDonough. There is evidence that Georgia Power used asbestos-containing
valves, gaskets and pumps manufactured by these brands. Sinyard explained that the
installation of these new valves and pumps involved “cutting in factory gaskets . . .
to order, installing the valve” and “making sure all [the insulation] packings are
tight.” This work created dust that he would breathe in. Sinyard testified that he
believed these products contained asbestos because of his “years of experience going
back and looking at what I know and knowing what [asbestos] looks like.” Sinyard
also explained that he believes he was exposed to asbestos while breathing in dusty
32
air at the plant because it “was present at the time” and that he “believ[ed]” that the
dusty air present in the plant contained asbestos because it had a “fibrous material”
that he recognized as asbestos.
The testimony of Eugene West, one of Sinyard’s union supervisors at Plant
Branch and Scherer, adds to the evidence from which a jury could conclude that
Sinyard was exposed to asbestos while working at Georgia Power facilities. West
testified that he was a supervising general foreman at the Georgia Power projects. He
often directly supervised Sinyard during maintenance work done during plant shut-
downs. West testified that the primary brands of valves present at the Georgia Power
plants were Honeywell, Crane, and Ingersoll Rand. And he testified not only that
Sinyard “probably” worked on Honeywell brand valves during plant shutdowns
because there were so many Honeywell brand valves present at the worksite, but also
that Sinyard’s job duties would have been to install Honeywell brand valves.
Compare Hoffman, 248 Ga. App. at 611-12 (2) (testimony that a plaintiff’s former
coworker believed Armstrong-brand insulation was used “in the sixties” was too
speculative to prove that the product was used at the shipyard during the three-month
span of plaintiff’s employment there).
33
All told, the above evidence—from Sinyard’s identification of brands of
pumps, gaskets, valves, and insulation that he worked with while at Georgia Power
facilities and his identification of asbestos based on his later knowledge of what it
looks like, to West’s testimony about Sinyard’s work—is enough to create an issue
of material fact as to whether Sinyard was exposed to asbestos while working at
Georgia Power facilities. See Ga. Power Co. v. Campbell, 360 Ga. App. 422, 427-28
(2) (a) (861 SE2d 255) (2021) (plaintiff met his burden to show asbestos products
were used in a workplace by his own testimony that he worked “with boxes of
insulation [that] were marked as containing asbestos”); John Crane, Inc. v.
Wommack, 227 Ga. App. 538, 541-42 (3) (489 SE2d 527) (1997) (plaintiff’s
testimony that “I feel sure that I did” when asked if he removed Crane asbestos
packing was not speculative opinion testimony when combined with other testimony
that he knew he was using Crane’s packing because Crane’s name was on the
packaging). Compare Adamson v. Gen. Elec. Co., 303 Ga. App. 741, 744-45 (3) (a)
(694 SE2d 363) (2010) (although there was evidence that asbestos-containing
materials were present at a worksite while decedent worked there, summary judgment
for defendant was proper because there was no evidence showing that the decedent
“was ever in proximity to any asbestos-containing gaskets or packing material
34
manufactured” by defendant); Williams v. Flintkote Co., 256 Ga. App. 205, 207 (2)
(a) (568 SE2d 106) (2002) (summary judgment to defendant was appropriate when
testimony established only that its asbestos-containing products were used
somewhere within two plants but not that plaintiffs were in proximity to those
products).
4. Statute of Repose
OCGA § 9-3-51 provides that any action to recover for damages arising out of
a deficiency in the construction of an improvement to real property must be brought
against a person performing the construction within eight years after “substantial
completion of such an improvement.” But even assuming this statute of repose
applies to Sinyard’s work as a pipefitter for Georgia Power, see Ga. Power Co. v.
Campbell, 360 Ga. App. 422, 427-28 (2) (a) (861 SE2d 255) (2021) (noting “no
dispute that the [asbestos] insulation work at issue ... constituted ‘an improvement to
real property’”), this defense may not be asserted by someone in “actual possession
or control” of the improvement at the time of the injury. OCGA § 9-3-52; see also
OCGA § 9-3-50 (1) (“person” includes corporations and partnerships). For this
reason, the same issue of material fact identified in Division 3 (c)—whether Georgia
35
Power relinquished possession and control of the premises where Sinyard
worked—also precludes summary judgment on the statute of repose.
Case No. A21A1425. Sinyard et al. v. Ford Motor Company.
In Case No. A21A1425, Sinyard appeals from the trial court’s grant of
summary judgment to Ford Motor Company. Sinyard’s claims against Ford are based
on Ford’s alleged negligence in failing to properly maintain its premises and in failing
to provide sufficient warnings about the presence of asbestos in its facilities and the
dangers posed by exposure to asbestos during his employment at its plant between
1981 to 1995. He contends that the trial court erred in concluding that Ford did not
owe a duty of care as the premises owner to Sinyard because (1) Sinyard had equal
knowledge of the hazards posed by asbestos, and (2) Ford had relinquished
possession and control over the portion of the plant where Sinyard worked. We
conclude that material issues of fact preclude summary judgment on each of these
grounds.
5. Superior Knowledge
As we explained in Division 2 (a), an owner or occupier’s liability in premises-
liability cases is grounded in the owner’s superior knowledge of the specific hazard
at issue. Travis 339 Ga. App. at 553 (1) (citation and punctuation omitted); Fouch
36
Supply Co., 326 Ga. App. at 873 (2). Again, establishing the owner’s superior
knowledge requires proof that (1) the owner had actual or constructive knowledge of
the specific hazard and (2) the plaintiff lacked such knowledge despite exercising
ordinary care. Travis, 339 Ga. App. at 553 (1); Fouch, 326 Ga. App. at 873. A
genuine dispute of material fact on both of these issues precludes summary judgment.
See Brownlee v. Winn-Dixie Atlanta, Inc., 240 Ga. App. 368, 369 (2) (523 SE2d 596)
(1999) (whether a premises owner had “superior knowledge [of a hazard] is generally
an issue for the jury”).
As with Georgia Power, the record is clear that Ford knew about the specific
dangers of asbestos exposure at the relevant times. It is undisputed that Ford knew as
early as 1972 that its plant was built with asbestos materials and that asbestos posed
a hazard to human health. Ford was aware that there was medical research showing
that even a single day’s exposure to asbestos could cause a person to develop cancer.
By 1973, Ford developed its own formal policies and procedures for its employees
relating to the safe handling of asbestos. In 1980, Ford sent a communication to all
of its assembly plant Engineering Managers which stated that asbestos was a known
human carcinogen and that “[a] potential hazard exists whenever asbestos is cut,
37
ripped, drilled, ground, or handled in any way that causes dust to become airborne.”
.
As for Sinyard, there is enough evidence here to create a genuine dispute of
material fact as to whether Sinyard was aware of the specific health hazards posed by
working with asbestos and the presence and location of asbestos in Ford’s Hapeville
plant. As we explained in detail in Division 2 (a) with respect to Sinyard’s work at
Georgia Power—also in the 1980s—the evidence shows that Sinyard knew how to
identify asbestos at the relevant times, but there is a question of fact as to whether he
had accurate knowledge of the specific risks of asbestos exposure. The same evidence
that we recounted there—Sinyard’s gaps in knowledge of the specific dangers of
inhaling even small amount of asbestos and how to properly protect himself; his
employers’ and supervisors’ similar deficiencies; and the likelihood that neither he
nor his employers acquired sufficient knowledge through a handful of newsletters by
the National Union—could allow a jury to conclude that Sinyard had equal
knowledge of the specific dangers posed by exposure to asbestos. And Ford points
to no evidence that it posted any labels identifying asbestos materials or warning of
the dangers of asbestos in its plant, or that it directly warned Sinyard or his employers
of these dangers. See Bagley, 219 Ga. App. at 545 (to prove that railroad negligently
38
failed to warn plaintiff of dangers of asbestos, plaintiff was “required to prove that
[the railroad] knew or should have known that his exposure to asbestos dust placed
him at risk for contracting asbestosis, yet failed to inform and protect him”).
In sum, viewing the evidence and inferences that can be drawn from it in the
light most favorable to Sinyard, there remains a genuine issue of material fact whether
Ford had superior knowledge of the specific dangers here. As with his work at
Georgia Power plants, a jury could conclude that Sinyard did not have equal
knowledge of those specific dangers when he worked at Ford plants.
6. Relinquishment of Possession and Control
We also explained in Division 2 (b) that the duty of care that property owners
owe to their invitees does not extend to employees or invitees of an independent
contractor hired to do work on the premises, if two conditions exist: (1) the owner
“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, 195 Ga. App. at 54. Accord Campbell, 360 Ga. App. at 424 (1). “Possession
means ‘having personal charge of or exercising the rights of management or control
over the property in question,’ and ‘custody and control are the commonly accepted
and generally understood incidents of possession.’” West, 244 Ga. App. at 846.
39
There is at least an issue of fact as to whether Ford relinquished possession or
control of the portion of the plant where Sinyard was working for Cleveland
Consolidated in 1981 through 1985 and for Mann Mechanical in 1986. Possession
“implies the ability to control access to the premises and to exclude others therefrom.”
Mullinax v. Pilgrim’s Pride Corp., 354 Ga. App. 186, 198 (3) (b) (840 SE2d 666)
(2020) (citation and punctuation omitted). Neither party has identified a contract for
the work Sinyard performed at the Hapeville plant during these times. However,
Sinyard testified that when he performed fill-in maintenance work at the Hapeville
plant between 1981 and 1985, he worked under the direct supervision of Ford
employees, he worked with a Ford crew or one of its pipefitters on shift, and he used
tools and maintenance materials provided by Ford. Sinyard further testified that other
tradespeople had access to the areas of the plant when he performed this work.
Ford points to the testimony of its representative about the process by which
Ford typically hired outside contractors to work at the plant. The representative
testified that although he did not have exact knowledge of Sinyard’s working
conditions during this period, it was unlikely that Sinyard would have worked at the
direction of Ford employees or used Ford-provided materials because Ford had its
own union maintenance personnel and would only bring in outside contractors for
40
regular maintenance if no UAW-union pipefitters were available to perform the work.
The representative agreed, however, that it was not outside the realm of possibility
that Sinyard and his employers operated differently. Ford also points to Sinyard’s
testimony that he was, on certain occasions, supervised by his employer while
working at the Ford plant.
Given this evidence, a genuine dispute of fact remains as to whether Georgia
Power relinquished possession of the premises to Cleveland Consolidated or Mann
Mechanical and as to whether Georgia Power directed the work done by Sinyard. See
Campbell, 360 Ga. App. at 425-26 (1) (issue of material fact existed as to whether
nuclear power plant relinquished possession of the premises and control of the
insulation work to independent contractor); Mullinax, 354 Ga. App. at 198 (3) (b)
(issue of fact precluded summary judgment where premises owner identified no
evidence showing that he surrendered the ability to exclude others from portion of the
premises in which decedent was injured). Compare Ramcke, 306 Ga. App. at 739-40
(3) (property owners had no duty to keep work premises safe for construction
company’s invitees when property owners surrendered possession and control of
41
project premises to construction company to perform work as independent
contractor).
A21A1426. Sinyard et al. v. Piedmont Hospital, Inc.
In Case No. A21A1426, Sinyard appeals from the trial court’s grant of
summary judgment to Piedmont Hospital. Sinyard’s claims against Piedmont are
based on Piedmont’s alleged negligence in failing to properly maintain its premises
and in failing to provide sufficient warnings as to the presence of asbestos on its
premises as well as the dangers it posed to those exposed to it during Sinyard’s
employment at its premises from 1986 to 1989. He contends that the trial court erred
in concluding that Piedmont did not owe a duty of care as the premises owner to
Sinyard because (1) Sinyard had equal knowledge of the hazards posed by asbestos,
and (2) Piedmont had relinquished possession and control over the portion of the
plant where Sinyard worked. We conclude that the trial court properly granted
summary judgment on the ground that McKenney’s—Sinyard’s employing
contractor—had equal knowledge of the specific hazards of asbestos and its presence
at Piedmont.
7. Superior Knowledge
42
As we explained in Division 2 (a), an owner or occupier’s liability in premises-
liability cases is grounded in the owner’s superior knowledge of the specific hazard
at issue. Travis, 339 Ga. App. at 553 (1) (citation and punctuation omitted); Fouch,
326 Ga. App. at 873 (2). Again, establishing the owner’s superior knowledge requires
proof that (1) the owner had actual or constructive knowledge of the specific hazard
and (2) the plaintiff lacked such knowledge despite exercising ordinary care. Travis,
339 Ga. App. at 553 (1); Fouch, 326 Ga. App. at 873. A genuine dispute of material
fact on both of these issues precludes summary judgment. Travis, 339 Ga. App. at app
556 (1).
With respect to Piedmont’s knowledge when Sinyard worked there, the
evidence shows that Piedmont did have knowledge that its hospital contained
asbestos, and that OSHA regulated asbestos and had identified it as a carcinogen, and
that it had been directed by the Georgia Department of Natural Resources to post
warning signs and maintain proper building records to note the presence of asbestos
in its facility. However, unlike Georgia Power or Ford, there is no evidence that
Piedmont had internal policies addressing the handling of and exposure to asbestos
43
or that Piedmont trained its employees about safe handling of asbestos.4 Further,
Sinyard has pointed to no evidence that Piedmont was aware of the procedures––such
as the use of respirators and safe disposal—that should be used to safely work with
asbestos.
As for Sinyard’s knowledge, the undisputed evidence shows that McKenney’s,
Sinyard’s contracting employer, had knowledge equal to that of Piedmont regarding
the presence of asbestos and its dangers at the time of Sinyard’s employment at
Piedmont. In the 1980s, McKenney’s knew that hospitals, such as Piedmont,
contained asbestos materials. McKenney’s representative testified that McKenney’s
was “part of the industry and the industry is aware of asbestos and its presence. And
that’s why you have procedure to handle it.” McKenney’s representative testified that,
in the 1980s, it was aware that its workers would encounter asbestos when they
worked in Piedmont’s building. He further testified that the company’s “awareness
4
Sinyard argues that Piedmont should be deemed to have constructive
knowledge of the health hazards posed by exposure to asbestos because it had access
to medical doctors and scientific literature available in its own medical library and
through the Atlanta Health Science Libraries Consortium. However, Sinyard fails to
identify specific articles that the hospital should have been aware of. See Houschar,
739 F.3d at 175 (IV) (power company that owned and operated site where it knew
birds congregated could not be deemed to have constructive knowledge of articles on
government website related to the connection between exposure to bird manure and
histoplasmosis).
44
[that] asbestos has been a problem [has] evolved over many, many, many years,
probably starting as early as the ‘70s and all the way through when OSHA wrote a
procedure in 1994.” Although the representative could not identify written procedures
the company created for dealing with asbestos in the 1980s, he believed that the
company provided its employees with paper masks to wear while working with
asbestos and that, as early as the 1970s, it would have trained its workers on how to
detect asbestos. He explained that in the 1980s and 1990s, McKenney’s had several
“solutions” available to it when a worker detected asbestos: it could direct its workers
to wear masks and reduce exposure to dust while working with it, it could tell the
premises owner to handle it, or it could hire a subcontractor to abate it. See
McKinney, 284 Ga. App. at 253 (1) (summary judgment for premises owner was
appropriate because any duty the premises owner had to warn independent
contractor’s employee of a buried electrical line was satisfied by notice to his
supervisor).
Based on the above, Sinyard’s employing contractor had at least equal
knowledge of the specific hazard posed by exposure to asbestos at Piedmont. And
“[f]ull knowledge by the independent contractor of the dangers” is sufficient to
discharge the landowner’s duty to its invitees. Douberly v. Okefenokee Rural Elec.
45
Membership Corp., 146 Ga. App. 568, 570 (246 SE2d 708) (1978) (because there was
evidence that logger’s employer had knowledge of the location and existence of
power line that injured him, the landowner had no duty to warn the logger). Thus, the
trial court did not err in granting summary judgment in favor of Piedmont on this
ground. See Odister v. Leach, 257 Ga. App. 106, 108 (570 SE2d 391) (2002)
(summary judgment correctly granted to premises owner when evidence did not show
that premises owner had superior knowledge of dangers associated with task);
Douberly, 146 Ga. App. at 569 (2) (although injured employee denied that the
warning provided by the premises owner to his employer was relayed to him, “this
issue is neither relevant nor material to the issue of” the premises owner’s duty to the
employee).5
Judgment affirmed in part and reversed in part in Case No. A21A1424,
judgment reversed in Case No. A21A1425, and judgment affirmed in Case No.
A21A1426. Dillard, P. J., and Mercier, J., concur.
5
As a result of our holding in Division 7, we need not address Sinyard’s
remaining enumerations of error in this case.
46