The relevant facts in this appeal are as follows: Appellee-defendant Catoosa County (county) contracted with F&C Contractors, Inc. (F&CCI) to replace a bridge located in appellee-defendant City of Fort Oglethorpe (city). While engaged in this bridge replacement project as an employee of F&CCI, appellant-plaintiff’s husband was killed when a crane came in contact with overhead high-voltage electrical lines. As the result of her husband’s death, appellant received workers’ compensation benefits from F&CCI and she thereafter initiated this tort action against appellees. Appellees answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellees and appellant appeаls from that order.
1. With regard to appellant’s theory that the county could be held vicariously liable for the negligence of F&CCI, the trial court held that F&CCI was not a servant but an independent contractor. Appellant urges that, in so holding, the trial court erred because a genuine issue of material fact remains as to whether F&CCI was a servant for whose negligence the county could be held vicariously liable.
The evidence of record establishes the terms of the contract for the bridgе replacement project. Compare
Harrison & Ellis v. Nashville Milling Co.,
2. When machinery is to be operated within eight feet of a high-
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voltage line, OCGA § 46-3-33 (a) requires the “person or persons resрonsible for the work to be done” to give prompt notification to the owner or operator of the lines. The phrase “person responsible fоr the work to be done” is defined in OCGA § 46-3-30 (2) and, when read in conjunction with OCGA § 46-3-33 (a), requires the person or persons
immediately
responsible for the operation of machinery within еight feet of a high-voltage line to give notice. See generally
Malvarez v. Ga. Power Co.,
Moreover, the failure to give notice was certainly not a proximate cause of thе death of appellant’s deceased. The purpose of OCGA § 46-3-33 (a) is to place “a duty upon the owner and maintainer of high-voltage lines where notice is given of a ‘construction work risk’ although such owner would otherwise not be liable.”
Carden v. Ga. Power Co.,
3. Appellant urges that a genuine issue of material fact remаins as to the applicability of two exceptions to the general rule of non-liability for the negligence of an independent contractor.
Appellant first urges that the failure of the county to give notice pursuant to OCGA § 46-3-33 (a) “is the violation of a duty imposed by statute” and thus, is within the exception recognized in OCGA § 51-2-5 (4). This сontention is clearly without merit for the reasons set forth in Division 2.
Appellant further urges that, “according to the [county’s] previous knowledge and experienсe, the work to be done [was] in its nature dangerous to others however carefully performed. . . .” OCGA § 51-
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2-5 (2). However, appellant has not rebutted the county’s showing thаt the bridge could have been safely built if the crane had been placed in a different location. Moreover, such work near high-voltage lines is permitted by OCGA § 46-3-30 et seq. so long as certain safety precautions are taken. Therefore, the work was not “dangerous ‘however carefully performed.’ Where thе work is not inherently dangerous except as a result of the negligence of the contractor the employer is not liable. [Cit.]”
Mason v. Gracey,
supra at 153 (1b). “In
Georgia Power Co. v. Gillespie,
4. The trial court held that the county had no liability in its capacity as the owner or occupier of land because the evidence of record showed that possession and control of the work site had been relinquished to F&CCI at the time of the incident. See
Black v. City of Cordele,
5. Appellant urges that genuine issues of material fact remain as to her claim under 42 USC § 1983. In her complaint, she had alleged a violation of due process in that her husband’s death was a direct result of the failure of both thе city and the county to enact any safety methods or procedures for construction projects.
“[N]othing in the language of the Due Process Clause itsеlf requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act,
not as a guarantee of certain minimal levels of safety and security.
It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that thosе interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. . . . [The] purpose [of thе Due Process Clause of the Fourteenth Amendment] was to protect the people from the State, not to ensure that the State protected them
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from each other.” (Emphasis supplied.)
DeShaney v. Winnebago County Dept. of Social Svcs.,
Moreover, “ ‘[municipal [or county] liability under § 1983 attaches where — and only where — a
deliberate
сhoice to follow a course of action is made from among various alternatives’ by city [or county] policymakers. [Cit.]” (Emphasis supplied.)
City of Canton, Ohio v. Harris,
Judgment affirmed.