The fact that the contract applies to work done on property owned by someone else does not make RHA1 a party to the contract. See Jai Ganesh Lodging, Inc. v. David M. Smith, Inc. , 328 Ga. App. 713, 718-719 (2), 760 S.E.2d 718 (2014). As such, RHA1 can only seek to enforce the terms of the TCA if it was a third-party beneficiary.
Even if we were inclined to treat Thomaston like the original owner, we question whether an owner who was a party to the construction contract would have a viable negligent construction claim on these facts. (In posing its first question, the district court cited Jai Ganesh Lodging, Inc. v. David M. Smith, Inc. , 328 Ga. App. 713, 760 S.E.2d 718 (2014), a case in which the Court of Appeals "assume[d] that the acceptance doctrine applies both to owners and to third parties," and then held that the doctrine did not apply on summary judgment because there was a fact question about whether the defect at issue was hidden. Id. at 724, 760 S.E.2d 718.
"[A]nd appellate courts have consistently refused to interfere with the exercise of a trial court’s discretion except in cases of clear abuse." Jai Ganesh Lodging, Inc. v. David M. Smith, Inc. , 328 Ga. App. 713, 716-717 (1), 760 S.E.2d 718 (2014) (citation and punctuation omitted). Such an abuse of discretion occurs only "where the trial court’s ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law."
Emphasis supplied. See Wansor v. George Hantscho Co., 243 Ga. 91, 91-92, 252 S.E.2d 623 (1979) (quoting the principle of law set forth in OCGA § 51-1-11 (a) ); Ellis v. Rich's, Inc., 233 Ga. 573, 577, 212 S.E.2d 373 (1975) (same); Jai Ganesh Lodging, Inc. v. David M. Smith, Inc., 328 Ga. App. 713, 719 (3) (a), 760 S.E.2d 718 (2014) ("While privity of contract is generally not necessary to support an action in tort, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract." (punctuation omitted)); Dominic, 310 Ga. App. at 830 (2), 714 S.E.2d 388 ("[W]here privity of contract between the parties does not exist, to constitute a tort, the duty must arise independent of the contract."
The Court agrees with the Vogtle Defendants because negligent construction and negligent design claims are "not from a breach of contract claim but from a breach of duty-implied by law to perform the work in accordance with industry standards." Jai Ganesh Lodging, Inc. v. David M. Smith, Inc., 760 S.E.2d 718, 724 (Ga.Ct.App. 2014).
Here, Defendant had the "duty implied by law to perform the work in accordance with industry standards." Schofield Interior Contractors, Inc. v. Standard Bldg. Co., Inc., 293 Ga. App. 812, 814 (2008); see also Jai Ganesh Lodging, Inc. v. David M. Smith, Inc., 328 Ga. App. 713, 720 (2014). This duty requires "building contractors and others performing skilled services" to "exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession."