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Click here for the full text of this decision FACTS:James Petersen, owner of the property at 110 Milam (“the Petersen property”), hired RKL to perform a preliminary evaluation in connection with the possible conversion of an existing four-story commercial building to residential use. Petersen requested that RKL prepare a set of architectural plans and obtain construction bids from commercial contractors to determine if such a conversion would be cost-effective. RKL requested construction bids from G.T. Leach Construction, Braselton Construction Co., and Tribble & Stephens General Contractors (T&S). In order to complete their bids, GTL, Braselton and T&S requested keys to the property. After obtaining Petersen’s permission, RKL provided the keys. T&S requested that Mathis provide a bid for wrought-iron work to be completed at the Petersen property. On Oct. 30, 2001, a representative from T&S accompanied Mathis onto the Petersen property. While walking the perimeter of the building, Mathis fell into a hole that was 12 feet deep and covered by a thin piece of wood. Mathis sustained injuries to his head, neck and torso as a result of the fall. Before the date of Mathis’ injury, Restoration Builders Inc. had been the primary contractor involved in the stabilization phase, which included demolition activity and removal of debris from the Petersen property. Mathis sued RKL, Restoration, Petersen, GTL, T&S and W. Paul Wottring & Associates Inc. for negligence and negligence per se. RKL filed a no-evidence motion for summary judgment, pursuant to Rule of Civil Procedure 166a(i), and, alternatively, a traditional motion for summary judgment, pursuant to Rule of Civil Procedure 166a(c). On Aug. 31, 2004, the trial court granted interlocutory summary judgment in favor of RKL. On Oct. 1, 2004, the trial court signed an order severing Mathis’s suit against RKL from the underlying litigation, thereby making the interlocutory summary judgment order final. HOLDING:Affirmed. There was no evidence that, by RKL’s conduct or under provisions in its contract with Petersen, RKL had assumed the usual duties and responsibilities of a general contractor. Mathis submitted the following summary judgment evidence: Mathis’s affidavit, expert Don M. Kerr’s affidavit and Petersen’s deposition testimony. Neither Mathis’s nor Kerr’s affidavit mentioned RKL. On appeal, Mathis relies on Petersen’s deposition testimony to demonstrate that RKL had control of the Petersen property. Petersen stated that, during the stabilization phase, Restoration and the architect would have been in charge of safety at the Petersen property. However, Petersen acknowledged that, after the stabilization phase, he hired a new architect, RKL. Petersen’s testimony stating that the architect would have been responsible for safety during the stabilization phase is not evidence of who was responsible for safety when Mathis fell, which was after the stabilization phase. The evidence does not show that RKL had actual control. RKL was not an owner and did not occupy the Petersen property where Mathis was injured. Petersen owned the property and hired RKL to prepare a set of architectural plans and to obtain construction bids from general contractors. RKL conclusively proved that it did not create or cover the hole into which Mathis fell. To establish a claim by res ipsa loquitur, a plaintiff must prove 1. an accident of this character does not ordinarily occur in the absence of negligence, and 2. the instrument that caused the accident was under the exclusive management and control of the defendant. The first factor is satisfied in this case, but the second is not. The doctrine of res ipsa loquitur is not available to fix responsibility when any one of multiple defendants, wholly independent of each other, might have been responsible for the injury.. In contrast, the doctrine can be used to fix responsibility against multiple defendants when they had joint control of the instrumentality causing the injury. RKL did not have joint control with the other defendants over the hole. OPINION:Taft, J.; Taft, Keyes and Hanks, JJ.

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