In this lawsuit, Javier Basillio Fuentes, a construction worker, alleges that KBC Constructors, LLC d/b/a Highland Custom Homes “Highland” and its owner, officer, and project manager, Bill Creeden collectively, the “defendants”, are liable for injuries Fuentes suffered when he fell through an elevator shaft at a construction site. The defendants filed motions for summary judgment. The trial court denied the motions and issued a certificate of immediate review. We granted the defendants’ application for interlocutory appeal and reverse, finding that the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11, bars Fuentes’s claim. In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.1 So viewed, the record shows that Highland is a Georgia corporation that was formed in 2000 to build residential homes. On March 22, 2004, Highland purchased several lots in the Lynwood Park subdivision of Dekalb County, including 3220 Lynwood Drive. The next day, Highland entered into a design contract with Jacques DeGaule to build a home to his specifications at 3220 Lynwood Drive. The design fee was $2,000. On August 31, 2004, Highland and DeGaule signed a purchase and sale agreement for the property providing for transfer of title from Highland to DeGaule when the house was substantially completed. DeGaule paid $33,171 in earnest money to Highland when the agreement was signed. The agreement also provided for the specific design of the house, which included a swimming pool and an elevator that stopped at each floor, including the basement. After construction was underway on the house, Highland contracted with Rich Drywall, Inc. “Rich Drywall”, in November 2004 to perform drywall installation in the house. Rich Drywall in turn hired different subcontractors to do each of the three phases of the drywall work, including hanging, finishing or taping, and sanding. Rich Drywall subcontracted with Daniel Rodriguez to perform the final sanding phase, and Rodriguez hired Fuentes as part of the sanding crew. On November 24, 2004, his first day on the job, Fuentes noted that there was an elevator shaft in the house and that it went from the basement up to the third floor. Fuentes was able to see inside the elevator shaft to know that the drywall was not taped and could not be sanded that day. According to Fuentes, there were no barricades blocking the elevator shaft. Fuentes deposed that he knew that he would get hurt if he went into the elevator shaft, but explained that he would not necessarily know if a closed door was an elevator or a closet since he was not familiar with the layout of the home. Fuentes completed his work on November 24, 2004, without incident and then returned to the site two days later to complete sanding. As he was sanding the ceiling on the second floor, he noticed an area in the elevator shaft on the third floor that needed sanding. Fuentes went up to the third floor and opened what he thought was a closet door. When he entered, he fell down the elevator shaft and was seriously injured.
Fuentes received workers’ compensation benefits from Rich Drywall, his employer, but subsequently sued Highland and Creeden, alleging that their negligence contributed to his injury. Defendants moved for summary judgment alleging, inter alia , that as Fuentes’ statutory employer, they were entitled to tort immunity under OCGA § 34-9-8, so that Fuentes’s exclusive remedy was under the Workers’ Compensation Act, OCGA § 34-9-11. The trial court noted that an owner who is in possession or control of the premises is generally not a statutory employer under OCGA § 34-9-8, and that the isolated situation where an owner can attain the status of statutory employer is where it is serving as contractor for another entity. The court denied defendants’ motions, ruling that although Highland had a contract with DeGaule for the construction of the home, it retained sole ownership of the property and the work was being done for Highland’s own benefit.
