Opinion
Case No.: 3:05-cv-82 (CAR).
April 9, 2007
ORDER ON PLAINTIFF'S MOTION TO AMEND
Plaintiff Wesley Whitley ("Whitley") brings this action against Defendant Comcast of Georgia ("Comcast") to recover damages relating to injuries he suffered as a result of an accident involving a Comcast cable line. Whitley alleges that he was injured when a concrete truck hit a utility pole, causing the Comcast cable line attached thereto to become severed and hit the raised hood of his truck, on which he was performing repair work. The hood then slammed down on the back of his head and neck, causing his injuries. In his complaint, Whitley alleges that Comcast was negligent in installing and maintaining the cable line at a height lower than required by law. Comcast, in turn, has impleaded FICOA Communications, Inc. ("FICOA"), a sub-contractor which it believes installed the cable line.
Before the Court is Whitley's Motion to Amend. [Doc. 43]. Through this motion, Whitley seeks to include allegations, which, if proven, may render Comcast liable to him for FICOA's alleged negligent installation of the cable line. Whitley has attached a proposed "First Amendment to Complaint" to his motion. [Doc. 45-2]. For the reasons explained below, Whitley's motion is GRANTED in part and DENIED in part.
The Federal Rules of Civil Procedure govern the amendment of pleadings. In particular, Rule 15(a) provides that after an answer has been filed, a party may amend his pleading by leave of court and "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The purpose of the rule is "to enable a party to assert matters that were overlooked or were unknown at the time [s]he interposed the original complaint." 6 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1473. Thus, "unless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Fla. Evergreen Foliage v. E.I. DuPont De Nemours Co., 470 F.3d 1036, 1041 (11th Cir. 2006).
Yet, "[w]hile leave to amend should be freely granted when justice so requires . . . the liberal amendment policy prescribed by Rule 15(a) does not mean that leave will be granted in all cases." Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d 57, 71 (1st Cir. 2001) (cite omitted); see also 6 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1487. "[A] district court may properly deny leave to amend the complaint under Rule 15(a) when such amendment would be futile." Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004). An amendment is futile when "the complaint as amended is still subject to dismissal." Id. However, "[i]f a proposed amendment is not clearly futile, then denial of leave to amend is improper." Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1487 (emphasis added).
In this case, Whitley seeks to amend his complaint to add allegations that Comcast is vicariously liable for FICOA's negligent installation of the cable line. (Pl.'s Mot. to Am. 3.) Under Georgia law, an employer generally is not vicariously liable for torts committed by an independent contractor over which the employer retains no direction or control. See O.C.G.A. § 51-2-4 (West 2007); Sorrow v. Hadaway, 269 Ga. App. 446, 448, 604 S.E.2d 197-98 (Ct.App. 2004). However, there are several exceptions to this general rule, some of which are codified at O.C.G.A. § 51-2-5. See Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93-94 (1985) (noting that the list of exceptions enumerated in O.C.G.A. § 51-2-5 is non-exclusive). Specifically, O.C.G.A. § 51-2-5 provides that an employer may be liable for the negligence of a contractor:
(1) When the work is wrongful in itself or, if done in the ordinary manner, would result in a nuisance;
(2) If, according to the employer's previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed;
(3) If the wrongful act is the violation of a duty imposed by express contract upon the employer;
(4) If the wrongful act is the violation of a duty imposed by statute;
(5) If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference; or
(6) If the employer ratifies the unauthorized wrong of the independent contractor.
In his Motion to Amend, Whitley focuses primarily on the first exception outlined in O.C.G.A. § 51-2-5: "when the work . . ., if done in the ordinary manner, would result in a nuisance." (Pl.'s Mot. to Am. 3). In an attempt to advance this theory, Whitley's proposed "First Amendment to Complaint" [Doc. 45-2] alleges that the Comcast cable line, as installed at its lower-than-acceptable height, amounted to a nuisance.
Whitley's nuisance allegations are misplaced, as they do not fit within the exception explained in O.C.G.A. § 51-2-5(1). In particular, the exception requires that "the work . . ., if done in the ordinary manner, would result in a nuisance." O.C.G.A. § 51-2-5(1) (emphasis added). Whitley's nuisance allegations, as they appear in his proposed amendment, focus on the improper installation of the cable line, rather than on whether the cable line, if installed correctly, would pose a nuisance. Thus, the allegations do not support the theory under which, according to his Motion to Amend, Whitley seeks to proceed.
Notwithstanding the foregoing, however, Whitley's proposed amendment is not entirely futile. As Comcast concedes, "[d]evelopments in the factual background of th[e] case may support a colorable claim that Comcast can be vicariously liable for FICOA's negligence." (Def.'s Resp. Br. 4). Therefore, to the extent that Whitley, though his Motion to Amend, seeks to add allegations of Comcast's vicarious liability, his motion is GRANTED. Accordingly, Whitley is ORDERED AND DIRECTED to file a more definite statement of such claims with the Court within ten (10) days of the date of this order.