Hayes v. Century 21 Shows, Inc.
Hayes v. Century 21 Shows, Inc.
Opinion of the Court
Under Code § 105-106 the plaintiff cannot base her action on a tort resulting from the violation of a duty arising only by reason of the defendant’s contract with Coosa Valley Fair Association, Inc., unless she “would have had a right of action for the injury done independently of the contract.” See Stuart v. Berry, 107 Ga. App. 531 (130 SE2d 838). The negligence alleged was that there was a malfunction in the Sky-liner, a device owned and operated by an independent contractor brought in by the defendant under a profit sharing arrangement and subject in certain general aspects of its operation to the latter’s control. Under Code § 105-501 the defendant is not responsible for torts of an independent contractor unless the situation comes within the statutory exceptions, one of which is that where the operation is dangerous in itself or is in the performance of a duty imposed by statute it is nondelegable. Of course one of the statutory requirements (Code § 105-401) is that where the occupier of land induces others to come upon his premises he must exercise ordinary care to keep the premises safe. “It is generally held that an 'operator’ actually engaged in the
The record before us contains, among other things, interrogatories of the plaintiff, objections thereto, two sets of answers, motions to compel -further answer and for other relief,
The trial court erred in sustaining the motion for summary judgment.
Judgment reversed.
Concurring Opinion
concurring specially as to Division 1 of the opinion. The defendant contends that Jack Cook, d/b/a H. & J. Rides, was an independent contractor and therefore it was not responsible for the torts of H. & J. Rides. While the contract, between the defendant and H. & J. Rides, for the operation of the “Skyliner” designated H. & J. Rides as an independent contractor it contained the following provision: “Party of the Second Part [H. & J. Rides] agrees to accept passes on his rides issued by the Party of the First Part [Century 21 Shows, Inc.] and to be governed by the rules and regulations set forth by management of the Party of the First Part. Party of the Second Part is an independent contractor and pays rent to
It will be noted under the contract that H. & J. Rides was subject to the rules and regulations established by the defendant. There was no limitation as to when these rules could be made nor was there any limitation as to the subject matter they would encompass. Clearly the contract gave the defendant the right to control the time and manner of the operation of the “Skyliner.” Whether the defendant -may have exercised this right of control is not material in determining if an independent contractor status existed. Yearwood v. Peabody, 45 Ga. App. 451 (2) (164 SE 901); Joiner v. Sinclair Refining Co., 48 Ga. App. 365 (172 SE 754).
Under the terms of the contract, H. & J. Rides was not an independent contractor and the defendant’s contention is without merit.
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