Court Grants Subcontractor’s Motion for Summary Judgment Pursuant to Georgia’s Acceptance Doctrine

Case Caption:  Darlene B. Leaks v. Jan Co. Central, Inc., Diversified Commercial Builders, Inc., and David Kelly Contracting, Inc., Civil Action File No. 2008EV004450E
Court:  Fulton State Court
Judge:  Brenda H. Cole
Plaintiff’s Attorneys: Scott G. Monge, Esq. and Ted W. Wooten, III, Esq., Monge & Associates
Defendant’s Attorneys: Susan J. Levy, Levy & Pruett, for David Kelly Contracting, Inc.
Alleged Damages: Arthroscopic knee surgery
Ruling: Court granted Defendant David Kelly Contracting’s Motion for Summary Judgment
Date:  May 16, 2011

Summary:
On March 27, 2007, Plaintiff allegedly injured herself when she fell while trying to get out of a defective chair at a Burger King restaurant located in downtown Atlanta.  Plaintiff sued three separate defendants: (1) Jan Co. Central, Inc., the owner and operator of the Broad Street Burger King; (2) Diversified Commercial Builders, Inc., the contractor hired by Jan Co. to renovate the Burger King and (3) David Kelly Contracting, the subcontractor hired by Diversified to perform the carpentry portions of the renovations of the Burger King, including the removal and replacement of tabletops and seating.

Defendant David Kelly Contracting, represented by Levy & Pruett, filed a Motion for Summary Judgment on the grounds that its work on the chair where Plaintiff allegedly fell was performed without negligence, was performed pursuant to specific instructions by its employer, Diversified, and was paid for and accepted by Diversified over seven months prior to Plaintiff’s alleged fall.

Georgia’s “Acceptance Doctrine” generally provides that where a contractor who does not hold itself out as an expert in the design work, performs its work without negligence, and the work is approved and accepted by the owner or the one who contracted for the work on the owner’s behalf, the contractor is not liable for injuries resulting from the defective design of the work.  Hollis & Spann, Inc. V. Hopkins, 301 Ga. App. 29, 31 (2009).  The exceptions for inherently or intrinsically dangerous work, for nuisances per se, and for work so negligently defective as to be imminently dangerous to third persons, only apply in cases where the contractor is guilty of negligence in the performance of its work.  David Allen Co. v. Benton, 260 GA. 557, 558 (1990).

The Court found that the evidence was undisputed that the work performed by Defendant David Kelly Contracting on the chair where Plaintiff allegedly fell was performed without negligence, was performed pursuant to specific instructions by its employer, Diversified, and was paid for and accepted by Diversified over seven months prior to Plaintiff’s alleged fall.  Consequently, the Court found that any recovery from Defendant David Kelly Contracting was barred by the Acceptance Doctrine.
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