text:
    A94A1616.
    MACY’S SOUTH, INC. v. CLARK. CLARK v. MATADOR SECURITY CONSULTANTS & DETECTIVE AGENCY, INC. et al.
    A94A1617.
    (452 SE2d 530)
   Pope, Chief Judge.

Plaintiff Jean Susan Clark and defendant Macy’s South, Inc. (Macys) both appeal from the trial court’s denial of their cross-motions for partial summary judgment. The sole issue on appeal is whether the exclusivity provision in the Georgia Workers’ Compensation Act (OCGA § 34-9-1 et seq.) acts as a bar to plaintiff’s recovery against Macys in this tort action.

Plaintiff worked as an assistant buyer for Macys in its downtown Atlanta store. It is undisputed that at all times relevant to this case, Macys owned and maintained a parking garage (Garage) that was directly across the street from the downtown store. The Garage was operated for the convenience of Macys’ employees and its customers. It also was open to the public. The record shows that, at least in part, security for the Garage was provided by defendant Matador Security Consultants & Detective Agency, Inc. (Matador). Although everyone using the Garage was charged a fee, Macys’ employees were given the option of parking in the Garage at a substantially discounted rate, and in fact this is what plaintiff chose to do.

The record shows that as an assistant buyer, plaintiff was a managerial, salaried employee. Although she had no specific working hours, plaintiff normally worked from 9:00 a.m. to 6:00 p.m. each day. It is undisputed that on April 12, 1988, although not required to do so, plaintiff worked past her normal hours so that she could get ahead on some paperwork. Plaintiff’s deposition testimony shows that on this date she in fact worked until approximately 7:45 p.m. and the record further shows that plaintiff signed out of the store at 7:50 p.m. It is undisputed that upon leaving the store, plaintiff went directly to her car, which was parked on the fifth floor of the Garage. When she reached her car a man was sitting in the front seat. The man told her he was with security and that her car had been broken into but he had scared the thieves away. It is undisputed that this man subsequently took plaintiff by force to the top floor of the Garage and assaulted and raped her.

On April 11, 1990, plaintiff filed an amended complaint wherein she alleged that Macys and Matador negligently failed to provide reasonable and adequate security on the date in question, in violation of their duty to plaintiff to exercise ordinary care in maintaining the Garage in a reasonably safe condition. Macys and Matador answered separately, denying liability. On April 15, 1993, plaintiff filed a motion for partial summary judgment as to the issue of the applicability of the workers’ compensation bar to her lawsuit. On May 28, 1993, Macys filed its response to plaintiff’s motion as well as its own motion for partial summary judgment, arguing that plaintiff’s claim against Macys was barred by the exclusivity provision of the Georgia Workers’ Compensation Act. On July 1, 1993, Matador filed a memorandum of law in support of plaintiff’s motion for summary judgment regarding the workers’ compensation issue. The trial court, by order dated December 2, 1993, denied both cross-motions for partial summary judgment. Both Macys and plaintiff appeal the trial court’s decision, Macys’ appeal being docketed in this court as Case No. A94A1616, and plaintiff’s appeal being docketed as Case No. A94A1617.

Case Nos. A94A1616 and A94A1617

In order to determine whether plaintiff’s claim against Macys is barred by the exclusivity provision of the Workers’ Compensation Act, we must first determine whether plaintiff’s injuries are covered by the Act. In making this determination we must consider whether the injuries plaintiff complains of arose out of and in the course of her employment with Macys. See Maxwell v. Hosp. Auth. of Dade, Walker &c. Counties, 202 Ga. App. 92, 93-94 (413 SE2d 205) (1991); see Garrett v. K-Mart Corp., 197 Ga. App. 374, 375 (398 SE2d 302) (1990).

1. “The words ‘arising out of’ mean that there must be some causal connection between the conditions under which the employee worked and the injury which [s]he received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. . . . The injuries, however, need not arise from something peculiar to the employment but the injury is compensable if after the event it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury.” (Citations and punctuation omitted.) Maxwell, 202 Ga. App. at 94.

When we apply the test set forth above to the facts of this case, we conclude that plaintiff’s injuries arose out of her employment with Macys. It is undisputed that plaintiff’s employment required her to work in a downtown metropolitan area. It also is undisputed that on the date plaintiff was attacked, the reason she was leaving work as night fell was because she had chosen to stay late and get ahead on some paperwork. Although plaintiff was not required to work late, she did in fact do so. Therefore, we reject her contention that the time she spent from 6:00 p.m. to approximately 7:45 p.m. was time spent outside the scope of her employment. See McElreath v. McElreath, 155 Ga. App. 826, 828 (273 SE2d 205) (1980). This is especially true in light of the fact that plaintiff was a junior executive and a salaried employee. Moreover, the record shows that it was not unusual for assistant buyers, such as plaintiff, to leave the store as late as 7:00 p.m. to 8:00 p.m.

The facts of this case show that Macys maintained the Garage where plaintiff was attacked for the benefit and convenience of its customers and employees. The reason that plaintiff was in the Garage at the time of the attack was because she had taken advantage of the discount parking rate Macys offered to its employees. The fact that there was only one security guard on duty at the time plaintiff entered the multi-level Garage and that the Garage was open to the public created a risk to plaintiff’s safety. Therefore, we conclude that this risk was incident to and causally connected to plaintiff’s employment, and the injuries plaintiff suffered arose out of her employment. See Maxwell, 202 Ga. App. at 94-95; Helton v. Interstate Brands Corp., 155 Ga. App. 607, 608-609 (271 SE2d 739) (1980).

2. The next issue we must address is whether plaintiff’s injury occurred in the course of her employment. “In the course of” refers to the time, place and circumstances under which the accident took place as opposed to the causal connection between the employment and the injury. State Dept. of Labor v. Yates, 131 Ga. App. 71, 72 (205 SE2d 36) (1974). In this state it is well settled that “the period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises.” (Citations and punctuation omitted.) United States Cas. Co. v. Russell, 98 Ga. App. 181, 182 (105 SE2d 378) (1958). Here, the facts clearly demonstrate that on the date in question plaintiff was working for Macys until 7:45 p.m. It is undisputed that plaintiff’s assault commenced within ten to fifteen minutes after she left the store at 7:50 p.m. In fact, according to plaintiff, the entire incident occurred only forty-five minutes to an hour after she left the store. Therefore, we conclude that the events that gave rise to the present cause of action occurred well within the reasonable period for egress. See Labelle v. Lister, 192 Ga. App. 464, 465 (385 SE2d 118) (1989).

Decided December 2, 1994

Reconsiderations denied December 16, 1994

Long, Weinberg, Ansley & Wheeler, Alan L. Newman, Carol P. Michel, for Macy’s South.

Foy R. Devine, for Clark.

Cozen & O’Connor, Timothy A. Bumann, McKenzie, Martin, Taylor & McConnaughey, Michael A. McKenzie, for Matador Security Consultants.

We also conclude that plaintiff’s assault occurred on Macys’ premises. Plaintiff’s contention that because the Garage was open to the public, it cannot be considered part of Macys’ premises, is without merit. “[W]hen an employee is injured in, or going to and from, a parking lot which is owned or maintained by the employer, the incident is compensable under workers’ compensation since the injury arose during the employee’s ingress or egress from employment.” (Citations omitted.) Tate v. Bruno’s/Food Max, 200 Ga. App. 395, 396-397 (408 SE2d 456) (1991). “For purposes of the ingress and egress rule, an employer’s premises is real property owned, maintained, or controlled by the employer.” Peoples v. Emory Univ., 206 Ga. App. 213, 214 (424 SE2d 874) (1992). In this case the uncontroverted evidence shows that the Garage was owned and maintained by Macys and was not merely a public parking lot. Consequently, plaintiff was injured on her employer’s premises.

In light of the above, we hold that the assault and rape of plaintiff arose out of and in the course of her employment. Accordingly, her exclusive remedy against Macys is provided by the Workers’ Compensation Act, and she may not maintain the present tort action against Macys. The trial court therefore erred in denying Macys’ motion for partial summary judgment but was correct in denying plaintiff’s motion for partial summary judgment.

Judgment in Case No. A94A1616 is reversed. Judgment in Case No. A94A1617 is affirmed.

McMurray, P. J., and Smith, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Pope, Chief Judge,

license: Public Domain

text:
    A94A1665.
    MIMS et al. v. CLANTON.
    (452 SE2d 169)
   McMurray, Presiding Judge.

Cynthia Parker Clanton (plaintiff) sued Thorsten William Mims, Gwinnett County, Georgia (Mims’ employer), the Gwinnett County Board of Commissioners, and five unnamed “superiors of Defendant Mims in the Gwinnett County Fire Department[,]” seeking to recover for personal injuries she received on March 20, 1990, when her Jeep collided with a Gwinnett County fire engine operated by Mims. Defendants answered and denied liability for the collision. After discovery, all defendants jointly moved for partial summary judgment on the ground that “defendants are constitutionally provided immunity from suit. . . .” They argued that governmental and sovereign immunity had been waived by Gwinnett County’s purchase of insurance only to the extent of liability coverage, which would not include a $250,000 deductible amount. Defendants requested “that their Motion for Partial Summary Judgment be granted to the extent of the full amount of the $250,000.00 deductible and for any amount above $750,000.00[,]” the limit of liability coverage provided under the policy.

The following material facts are undisputed. In support of their motion, defendants introduced the affidavit of Nancy Schick, a claims manager with the Gwinnett County Department of Financial Services, Risk Management Division, who authenticated a copy of the defendant Gwinnett County, Georgia’s, liability insurance policy and who deposed that “the attached policy is the only source of insurance coverage that was in effect to cover the incident in question.” The policy provided “[$] 750,000 . . . Per Occurrence: Automobile Liability” coverage subject to the following: “LIMITS OF LIABILITY . . . THE LIMITS OF LIABILITY PROVIDED UNDER THIS INSURANCE SHALL BE PER THE LIMITS SCHEDULED, BUT ONLY [IN] EXCESS OF: ... $250,000. ULTIMATE NET LOSS EACH CLAIM, BUT NOT EXCEEDING . . . $250,000. ULTIMATE NET LOSS EACH OCCURRENCE.” The term “Ultimate Net Loss” was defined as: “The sum of the amounts the Insured becomes obligated to pay, either through adjudication or compromise, ... as a consequence of any occurrence covered hereunder[.]”

The trial court denied defendants’ motion for partial summary judgment but certified its order for immediate review. Defendants’ application for interlocutory review was granted and this appeal followed. Held:

Defendants contend the denial of their motion for partial summary judgment is erroneous because there is no waiver of immunity to the extent of an uninsured deductible amount. Plaintiff replies that this issue is controlled adversely to the defendants by the Georgia Supreme Court’s decision in Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718), because the defendant Gwinnett County has “effectively elected to self-insure for the first $250,000.” The parties agree that the applicable law is the former constitutional provision for sovereign immunity in effect prior to amendment. Compare Curtis v. Bd. of Regents of the Univ. System of Ga., 262 Ga. 226 (416 SE2d 510).

Former Art. I, Sec. II, Par. IX, of the Georgia Constitution of 1983, provided in pertinent part that “the defense of sovereign immunity [was] waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided.” Sovereign immunity, like “official immunity[,] is waived [only] to the extent to which [the policy affording] coverage will pay for the claims asserted. DeKalb County School Dist. v. Bowden, 177 Ga. App. 296, 300 (339 SE2d 356) (1985) [.]” Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (2), 303 (357 SE2d 569). See also Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (2) (434 SE2d 488). “[T]o the extent and if, for any reason, such payment is not required under the contract [of insurance], there is no [waiver].” Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (2), 303, fn. 2, supra. In the case sub judice, the policy affording liability insurance coverage for personal injury claims does not begin to pay unless and until the amounts any insured defendants are obliged to pay exceed the floor of $250,000 ultimate net loss. Similarly, the policy provides a ceiling in the amount of “[$]750,000 . . . Per Occurrence.” Accordingly, the limited and conditional coverage afforded under the terms of this policy provides only a partial waiver of immunity from liability. Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (2), 303, fn. 2, supra. “[S]ince [sovereign or] governmental immunity is waived only to the extent of [defendant Gwinnett County, Georgia’s] insurance coverage and there is no coverage [under this policy] for the first [$250,000] of liability [due to the deductible amount], there is no waiver of [sovereign or] governmental immunity as to that first [$250,000] per occurrence.” DeKalb County School Dist. v. Bowden, 177 Ga. App. 296, 298, supra. Accord McLemore v. City Council of Augusta, 212 Ga. App. 862 (2c), 864 (443 SE2d 505). Consequently, the trial court erred insofar as it reasoned that under “the applicable and controlling law,” sovereign or governmental immunity was waived as to a deductible amount, for which no liability insurance coverage is provided.

In the case sub judice, there is a partial waiver of immunity, to the extent of available insurance coverage for damages in excess of the $250,000 uninsured deductible amount. This uninsured deductible amount may or may not exceed the amount of a verdict against the defendants. There is no waiver of immunity for liability exceeding $1,000,000, i.e., the sum of the $250,000 uninsured deductible amount and the $750,000 available liability coverage per occurrence. The grant of partial summary judgment is an appropriate remedy to the extent that immunity is not waived by the purchase of limited and conditional insurance coverage. Accordingly, “we [vacate the judgment of] the trial court as to its denial of summary judgment to [defendants . . . and hold that any available] immunity was waived [by the purchase of liability insurance] only to the extent of insurance coverage. We [remand and] direct the trial court to [exclude] any reference to the defense of [sovereign or] governmental immunity [before the jury . . .] and, should [plaintiff] prevail at trial, to enter judgment for [plaintiff] only for the amount of the coverage [under] the insurance policy, i.e., for the amount greater than the [uninsured deductible] limit and less than the policy’s upper limit.” DeKalb County School Dist. v. Bowden, 177 Ga. App. 296, 300, supra.

Nevertheless, plaintiff contends that defendant Gwinnett County, Georgia, is self-insured as to that first $250,000 such that immunity is completely waived as to that initial amount, relying on Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34, supra. In Litterilla, the Georgia Supreme Court held that the defendant Hospital Authority’s “election] to self-insure up to a $2,000,000 limit does not frustrate [an existing] waiver . . . [where it was] apparent that the Hospital decided that a self-insurance trust was more economical than commercial liability insurance for claims under the $2,000,000 amount [because] the record reflected] that the money to fund the trust ha[d] been set aside and invested in the same manner that commercial insurance companies invest assets [, and t]he trust document directed] the trustee to make such investments because the ‘fund assets are basically a substitute for commercial insurance.’ ” 262 Ga. 34, 36.

“[A] waiver of sovereign immunity, [owing to] the existence of coverage under an insurance policy [or a conscious decision to self-insure], must be established by the party seeking to benefit from that waiver. . . .” Bd. of Regents of the Univ. System of Ga. v. Daniels, 264 Ga. 328, 329 (446 SE2d 735). In the case sub judice, the trial court denied plaintiff’s motion to compel discovery on “whether Gwinnett County maintains a self-insurance plan, or other fund from which claims are paid, to cover the first $250,000 of its exposure.” Consequently, there is no direct evidence whether the defendant Gwinnett County, Georgia, has funded a liability trust or other spending account in lieu of commercial insurance for claims in amounts of $250,000 or less. The record does contain the unrefuted affidavit of Nancy Schick that this insurance policy is the only source of insurance coverage for the collision at issue. However, this affidavit does not contain her specific negative averment that no such funded liability trust, spending account, or self-insurance set-aside exists or is maintained for the County. Compare Bd. of Regents of the Univ. System of Ga. v. Daniels, 264 Ga. 328, supra, where the defendant Board of Regents “acknowledge[d] waiver of sovereign immunity in the amount of $250,000, the coverage afforded under its policy of self-insurance.” (Emphasis omitted.) As this case must be remanded for further proceedings, we further direct the trial court to reconsider plaintiff’s motion to compel discovery, on the factual issue of whether defendant Gwinnett County, Georgia, has set aside funds to pay claims not covered by its liability insurance policy.

Judgment vacated and remanded with direction.

Pope, C. J., and Smith, J., concur specially.

Pope, Chief Judge,

concurring specially.

I agree with the majority but write separately to clarify its holding: If a governmental entity waives immunity by purchasing insurance but the insurance policy has a deductible, the amount of the deductible is excluded from the waiver unless the government has set aside funds for the purpose of paying claims up to the amount of the deductible. See McLemore v. City Council of Augusta, 212 Ga. App. 862 (2c) (443 SE2d 505) (1994).

In this case, it is not clear whether the County set aside funds to pay claims up to $250,000, as the County refused to provide information regarding such a set-aside in discovery. Plaintiff filed a motion to compel which was denied at the same time as defendants’ motion for partial summary judgment, presumably because the information was not necessary given the trial court’s ruling that the County’s waiver of immunity included the deductible regardless of whether there was a set-aside of funds. Since we conclude the trial court’s ruling was wrong and the set-aside of funds is determinative, we are remanding to allow the trial court to reconsider its ruling on the motion to compel. If further discovery reveals the existence of a set-aside of funds, the motion for partial summary judgment with respect to the deductible was properly denied; if it does not, partial summary judgment with respect to the deductible should be granted.

I am authorized to state that Judge Smith joins in this special concurrence.

Decided December 1, 1994

Reconsideration denied December 16, 1994

Chandler & Britt, Walter M. Britt, Gregory D. Jay, for appellants.

Van Gerpen, Hoffman & Harris, Frank P. Harris, Terry L. Strawser, for appellee.

       Similarly, the partial defense of limited sovereign or governmental immunity can be vindicated by molding any judgment to accommodate the insurance floor and ceiling under the policy.


author: Smith, Judge.

text:
    A94A1851.
    AMERISPEC FRANCHISE v. CROSS et al.
    (452 SE2d 188)
   Smith, Judge.

This is an appeal from an order vacating an arbitration award under the somewhat novel provisions of the Georgia Arbitration Code, OCGA § 9-9-1 et seq. Paradoxically, appellant is the party that sought to have the award vacated and, conversely, appellees are the parties who defended the award as rendered. Moreover, the court’s judgment is deemed final for appeal purposes even though it is undisputed the case must be returned to the arbitrator for rehearing. OCGA § 9-9-13 (e).

Appellees Brad and Rita Cross sought arbitration against appellant Amerispec Franchise (Amerispec) for consequential damages resulting from the negligent inspection of a home ultimately purchased by the Crosses. The inspection agreement drafted by Amerispec provides, in pertinent part, that claims based on it or the resulting inspection report “shall be resolved exclusively by arbitration in compliance with the rules of the American Arbitration Association. . . . The arbitration decision shall be binding on all parties.” The agreement also contains a “limit of liability” clause essentially providing that “our liability to you is limited to the fee paid for our inspection services and you release us from any additional liability.” The fee paid was $150.

The arbitrator, however, awarded the Crosses $25,888, with interest after thirty days to accrue at eight percent annually until paid. Amerispec then applied to the superior court to vacate the award. OCGA § 9-9-13. The superior court vacated the award and ordered a rehearing, but only on the issue of the rate of interest established by the arbitrator. Because its order vacating the arbitrator’s award did not grant the entire relief requested, Amerispec appeals from the judgment of the superior court. See OCGA §§ 9-9-16; 9-9-13 (e). See also Walton Acoustics v. Currahee Constr. Co., 197 Ga. App. 659, 660 (399 SE2d 265) (1990), overruled on other grounds, Hope & Assoc. v. Marvin M. Black Co., 205 Ga. App. 561, 562 (1) (422 SE2d 918) (1992) (court may vacate arbitration award only in its entirety); Mid-American Elevator Co. v. Gemco Elevator Co., 189 Ga. App. 143, 145 (1) (375 SE2d 275) (1988) (although statute mandates that entire award must be vacated, court may limit rehearing to specific issues necessitating that action).

“The function of the trial court in proceedings to confirm or vacate an arbitration award should be severely limited in order not to frustrate the purpose of avoiding litigation by resorting to arbitration.” Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236-237 (4) (335 SE2d 708) (1985). OCGA § 9-9-13 (b) reflects this policy, providing that an arbitration award may be vacated due to such fundamental procedural defects as corruption, fraud, misconduct, partiality, overstepping of the arbitrator’s authority (addressing issues not properly before the arbitrator), or imperfect execution of that authority (significant failure to fully and clearly address the issues presented). As for questions purely of substance, OCGA § 9-9-13 (d) makes clear “[t]he fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”

1. In two enumerations of error, Amerispec argues that to justify an award in excess of the amount of the fee originally paid by the Crosses, the arbitrator either erred in his interpretation of the agreement or in allowing the Crosses to rescind the inspection agreement and sue for fraud in the inducement. The superior court found the award reflects that the limitation of liability clause was deemed void by the arbitrator. The superior court also found no evidence that the arbitrator “overstepped his authority” within the meaning of OCGA § 9-9-13 (b) (3).

“The dispute between the parties involved the meaning, interpretation and application of certain terms of the contract and these were matters for the [arbitrator] to determine. The [arbitrator] having resolved the dispute in favor of appellee [s], the trial court considered the record of the arbitration proceedings and determined that neither the contract terms nor the applicable law had been ignored by the [arbitrator]. Our review of the record reveals no error in the trial court’s ruling.” (Citations omitted.) City of College Park v. Batson-Cook Co., 196 Ga. App. 138, 140 (395 SE2d 385) (1990).

Specifically, the parties indicate the arbitrator most likely applied OCGA § 13-8-2 (b) to their agreement, which renders unenforceable exculpatory clauses in agreements “relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances.” The case now before us does not present squarely the question of whether exculpatory clauses in home inspection agreements are enforceable in light of OCGA § 13-8-2 (b); instead, the question in this case is whether the arbitrator’s determination on the matter is not only in error, but so clearly erroneous that it implicates the very integrity of the arbitrator in the exercise of his authority. OCGA § 9-9-13 (b).

Decided December 2, 1994

Reconsideration denied December 16, 1994

Awtrey & Parker, M. David Harrison, J. Ben Moore, for appellant.

Farnham & Wheeler, David J. Farnham, for appellees.

This limitation on our inquiry follows from the general rule that “an arbitrator’s decision must be upheld unless it is completely irrational or it constitutes a manifest disregard of the law.” Bartlett v. Dimension Designs, 195 Ga. App. 845, 848 (395 SE2d 64) (1990), overruled on other grounds, Pace Constr. Corp. v. Northpark Assoc., 215 Ga. App. 439 (450 SE2d 828) (1994). The applicability of OCGA § 13-8-2 (b) to limitation of liability clauses in home inspection agreements had not been addressed in a reported decision at the time the award was made. Moreover, OCGA § 13-8-2 (b) does not represent a model of legislative clarity. Consequently, we agree with the superior court that voiding the limitation of liability clause does not compel an inference that the arbitrator overstepped his authority. We therefore find no error in the superior court’s order vacating the arbitration award but limiting rehearing to the question of the proper interest rate to be applied after 30 days if the award remains unpaid. Mid-American Elevator Co. v. Gemco Elevator Co., 183 Ga. App. 88, 89 (357 SE2d 838) (1987).

2. Amerispec’s remaining enumerations, to the extent not addressed in Division 1, are without merit.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur.


author: Ruffin, Judge.

text:
    A94A1852.
    OGLETHORPE POWER CORPORATION v. LEWIS et al.
    (452 SE2d 167)
   Ruffin, Judge.

Oglethorpe Power Corporation (“Oglethorpe”) condemned an easement on 3.1 acres of land owned by B. R. Lewis pursuant to its power of eminent domain. At trial, over Oglethorpe’s objection, the court allowed Lewis’s valuation expert to testify the highest and best use of the property was for assemblage with two other parcels belonging to different owners. The expert based his appraisal of Lewis’s damages on a potential assemblage as a golf course and acknowledged this was the only use he considered. The jury returned a verdict in favor of Lewis, and Oglethorpe appeals from the judgment entered upon the verdict.

1. Oglethorpe asserts the trial court erred in admitting the testimony concerning assemblage because it was too remote and speculative as a matter of law. We agree.

In Dept. of Transp. v. Arnold, 154 Ga. App. 502 (268 SE2d 775) (1980), this court considered whether a parcel of land, other than that on which the condemned tract is situated, may be considered a part of the condemned tract in determining the value of the condemned tract. In Arnold, the Department of Transportation condemned a portion of a 25-acre tract of land owned by Arnold. Arnold introduced testimony that the condemned land is generally considered a part of both the 25-acre tract in which it is situated, and a contiguous 44-acre tract. The 25-acre tract was owned by three business partners, two of whom also owned the 44-acre tract. There was evidence all three partners treated the two tracts as a single 69-acre parcel of land and that the value of the condemned property should be based on the per acre value of the overall 69-acre parcel. The Department of Transportation objected to the evidence as improper and lacking probative value. While this court found the evidence proper, we did so because Arnold laid a foundation for the evidence, showing “unity of use and substantial, though not perfect, unity of ownership with respect to the [two tracts].” Id. at 503.

“ ‘(T)he fact that the property is merely adaptable to [an assemblage] is not in itself a sufficient showing in law to consider such different use as a basis for compensation. It must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. (Cit.)’ . . . [Cit.]” Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992). In other jurisdictions “it is well settled that unity of ownership [and either contiguity or adaptability for integrated use] must exist for there to be ‘assemblage value. . . .’” Annotation, Gulbis, Assemblage or Plottage as Factor Affecting Value in Eminent Domain Proceedings, 8 ALR4th 1202, 1205. See also 29A CJS, Eminent Domain, § 128. The purpose of the unity requirements in Arnold, and other jurisdictions, is to establish that an integrated use of the various parcels is “reasonably probable.” Without at least substantial unity of ownership and some indication of unity of use, the proposed assemblage is entirely speculative. Accordingly, we hold that before Lewis would have been entitled to present evidence of assemblage, he was required to show at least substantial unity of ownership and either contiguity or adaptability of the parcels for an integrated use.

While Lewis did present evidence the other parcels, in combination with the condemned tract, would be adaptable as a golf course, the record shows there was no unity of ownership because the two other parcels were owned by someone other than Lewis. Accordingly, “[w]e conclude that the trial court erred in admitting the challenged testimony, and a new trial is required.” Colonial Pipeline, 206 Ga. App. at 305.

Decided December 1, 1994

Reconsideration denied December 16, 1994

Roach, Hasty & Geiger, William G. Hasty, Jr., Eugene B. Chambers, Jr., Thomas A. Anderson, Phillips & Reid, Charles T. Autry, for appellant.

Bray & Johnson, H. Michael Bray, for appellees.

2. Since we determined in Division 1 that a new trial is required, it is unnecessary to address Oglethorpe’s second enumeration of error concerning juror conduct.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A2042.
    SMITH v. THE STATE.
    (452 SE2d 526)
   McMurray, Presiding Judge.

Defendant Smith was charged by indictment with the offenses of armed robbery and kidnapping. The jury returned a verdict, on the armed robbery charge of guilty of the lesser included offense of robbery by intimidation, and of guilty of kidnapping. Defendant appeals his conviction of the offenses of robbery by intimidation and kidnapping. Held:

1. Defendant contends the trial court erred in allowing the testimony of a witness, whose name was not provided to defendant in response to his demand for a list of witnesses until one day before trial and after voir dire of the jury, to be presented by the State at trial. In Bentley v. State, 210 Ga. App. 862, 863 (2) (438 SE2d 110), this court reiterated the rule that in order for a witness to testify, who does not appear on a list furnished to defendant in response to a demand pursuant to OCGA § 17-7-110, the prosecuting attorney must state in his or her place that the evidence sought to be presented is newly discovered evidence which the State was not aware of at the time of furnishing the demanded list. In the case sub judice, the prosecuting attorney made such a statement in his place and related that he informed defense counsel of the name and telephone number of the witness on the morning following the night he received that information. On appeal, defendant questions for the first time whether the testimony of this witness was actually newly discovered evidence. The prosecutor’s statement that the evidence was newly discovered was not challenged below, therefore the trial court did not err in allowing this witness to testify. Craig v. State, 170 Ga. App. 6, 8 (2) (316 SE2d 18); Stewart v. State, 163 Ga. App. 735, 738 (2) (295 SE2d 112); Smith v. State, 142 Ga. App. 1, 4 (5) (234 SE2d 816).

2. Defendant’s second and third enumerations of error bring into issue the sufficiency of the evidence of defendant’s guilt. The second enumeration of error challenges the denial of defendant’s motion for directed verdict. The fourth enumeration of error questions whether the issue of armed robbery was properly submitted to the jury, therefore we must resolve, along with other issues, the question of whether the evidence was sufficient to authorize conviction of the armed robbery charge of which defendant was in fact acquitted via the conviction of the lesser included offense. The fifth enumeration of error contends there was not sufficient evidence to authorize the charge on robbery by intimidation. The sixth enumeration of error questions whether the evidence in regard to the kidnapping offense was sufficient to authorize a charge on this issue.

The victim was approached by the defendant, with whom he was not previously acquainted, at a gasoline station. Defendant asked that the victim give him a ride to a bar. The victim agreed to give defendant a lift to Rufus’s Lounge. After they drove away from the station, defendant asked if the victim would take him to Savannah. The victim refused, and defendant then put his hand under his shirt, told the victim he had a gun and that they were going to Savannah. The victim never actually saw a gun or other weapon. While he saw an object through defendant’s shirt that looked like a pistol or small handgun, the victim acknowledged that he could not say that it was not merely defendant’s hand. The victim testified that he felt apprehension that defendant would kill him as he then drove towards Savannah. Thereafter, the defendant announced his conclusion that the victim was drunk and ordered the victim to pull over so that he could drive. The victim stopped the car and was ordered out of the car. When he got out of the car, the victim started running away but the defendant caught him and dragged him back to the car. Defendant put the victim in the passenger seat and told him that he would kill him if he got out again. Defendant drove some distance down the road and pulled over at a store. Defendant took the ignition key and went into the store. The victim exited the car and ran away, this time successfully escaping. When the victim returned to the store with police his car was gone.

In regard to the armed robbery charge, defendant relies upon the fact that the victim did not actually see a weapon and argues that his acts did not create a reasonable apprehension on the part of the victim that an offensive weapon was being used. Johnson v. State, 195 Ga. App. 56, 57 (1) (392 SE2d 280). “While the presence of a weapon during the commission of a robbery may be established without proof that the weapon was actually seen, ‘ “(s)ome physical manifestation of a weapon is required, ... or some evidence from which the presence of a weapon may be inferred.” ’ Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987), quoting People v. Coleman, 128 Ill. App. 3d 538 (2) (470 NE2d 1277) (1984).” Tate v. State, 191 Ga. App. 727, 728 (2) (382 SE2d 688). In the case sub judice, defendant’s statement that he had a gun, the accompanying threats, the victim’s testimony that the object in defendant’s shirt looked like a handgun, and the victim’s testimony as to his apprehension that he might be killed, amounted to sufficient evidence that he felt a reasonable apprehension that an offensive weapon was being used by defendant. Moody v. State, 258 Ga. 818, 819 (375 SE2d 30); Smith v. State, 209 Ga. App. 540, 541 (2) (433 SE2d 694); Howard v. State, 201 Ga. App. 164 (1), 166 (410 SE2d 782).

The property taken in the robbery offense was the victim’s car. Defendant also contends that there is not sufficient evidence that he took the car. While direct evidence on this point may be lacking, there is sufficient circumstantial evidence to authorize a jury to conclude beyond a reasonable doubt that the car was taken by defendant. Defendant had assumed control of the car, was driving when the car arrived at the store, and had the keys to the car when the victim ran away from the store where the car was parked.

Defendant also challenges the sufficiency of the evidence concerning the kidnapping offense. Much of defendant’s argument in regard to this offense relates to the credibility of the victim’s testimony, an issue for determination by the jury. Defendant’s argument that the victim was never forced to go anywhere he had not agreed to go is most clearly refuted by the evidence that the victim was forcibly dragged back to the car and threatened with death the first time he attempted to escape.

Finally, there was sufficient evidence supporting the conviction of defendant of the offense of robbery by intimidation. A conviction for robbery by intimidation is authorized where the theft is attended with conduct of the defendant, such as by word or gesture, which in common experience is likely to create apprehension of danger and induce a person to part with his property for the safety of his person. Johnson v. State, 195 Ga. App. 56, 58 (1), supra. The evidence adduced in the case sub judice was sufficient to satisfy this requirement.

We find the evidence sufficient under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize defendant’s conviction on both charges of which he was convicted, and on the armed robbery charge of which he was acquitted. Therefore, the trial court did not err in denying defendant’s motion for directed verdict and did not err in charging the jury on the offenses of armed robbery, robbery by intimidation, and kidnapping.

3. The fifth enumeration of error also contends that the charge on robbery by intimidation, the pattern charge found in paragraph 4, page 117, Volume II, Criminal Cases, Second Edition of the Suggested Pattern Jury Instructions of the Council of Superior Court Judges of Georgia, was incomplete in that it should have indicated that one could be convicted of this offense only if “the accused acted in such a way that in common experience the victim would apprehend danger and feel compelled to hand over his property” or in other words where the trier of fact “believed the victim’s fears to be consistent with those of anyone in similar circumstances.” However, this suggestion that a reasonable man standard of some sort must be applied in order to permit conviction is not supported in the case law. A conviction is authorized by the actual apprehension of danger on the part of the victim. The relevance of a reasonable man standard occurs only where the law presumes actual apprehension of danger from evidence that there was just ground for it. Thus, omission of a reference to a reasonable man standard for determining apprehension of danger made the charge complained of more advantageous to defendant than required. Long v. State, 12 Ga. 293, 321 (13).

4. In his sixth enumeration of error, defendant raises several issues concerning the charge to the jury on kidnapping. The initial question of whether the evidence warranted submitting this issue to the jury is addressed in the second division of this opinion. The remaining arguments are addressed to the trial court’s supplemental charge and recharge on kidnapping.

After the initial charge was completed, the prosecuting attorney noted that the trial court had omitted a portion of the intended charge on kidnapping and the jury was recalled to permit these additional instructions. Later, in response to their request, the jury was recharged on the initial instructions concerning kidnapping. All of these instructions were correct statements of law and adjusted to the evidence at trial. We reject defendant’s argument that this sequence of events or any portion of the instructions resulted in any theory being overemphasized or confused. This enumeration of error is without merit.

5. The trial court did not err in giving an unsolicited Allen instruction or “dynamite charge.” Defendant’s suggestion that the Allen charge was premature because the jury had not indicated that it was deadlocked is an incorrect statement of law. Kilpatrick v. State, 255 Ga. 344, 345 (1) (338 SE2d 274).

Nor is there any indication that the trial court abused its discretion in giving the Allen charge after the jury had deliberated only one hour and fifteen minutes. The trial court’s inquiry disclosed that the jury was divided, ten to two, and the jury deliberated for over three hours after the Allen charge before returning a verdict. The length of deliberation after the Allen charge supports the trial court’s decision. Id. at 345 (1).

Decided December 1, 1994

Reconsideration denied December 16, 1994

Duffy & Feemster, Dwight T. Feemster, for appellant.

Dupont K. Cheney, District Attorney, Michael T. Muldrew, Assistant District Attorney, for appellee.

Also, there was no error in the Allen charge’s reference to the expenses incurred by the parties in trying the case. The language in this regard which defendant complains of was approved in Blige v. State, 205 Ga. App. 133, 134 (1) (421 SE2d 547).

Finally, we do not find the reference in the Allen charge to the “considerable period of time” which the jury had already deliberated to be unduly coercive. This phrase served to simply explain the reason for the trial court’s decision to give the Allen charge.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A94A2500.
    HUNT v. THE STATE.
    (451 SE2d 797)
   Blackburn, Judge.

Jeffrey Hunt appeals his conviction by a jury of arson and aggravated assault. On appeal, Hunt contends the trial court erred by denying his motion for mistrial. Hunt asserts a mistrial was required as the prosecuting attorneys at trial were not the same prosecuting attorneys who conducted voir dire.

OCGA § 15-12-133 requires that Hunt be allowed to examine the panel of jurors regarding any matter which would demonstrate any interest of the juror in the case, “including . . . the relationship or acquaintance of the juror with the parties or counsel therefor.” Hunt argues that he was not allowed to question the jury panel regarding their relationship to or knowledge of the prosecuting attorneys because the two attorneys who conducted voir dire on behalf of the State were not the attorneys representing the State at the trial of the case several days later.

“ ‘Although control of voir dire examination is normally within the discretion of the trial court, it has been held that the defendant in a criminal case has an absolute right to have his prospective jurors questioned as to those matters specified in OCGA § 15-12-133. [Cit.]’ ” Legare v. State, 256 Ga. 302, 303 (348 SE2d 881) (1986). See also Wallace v. State, 164 Ga. App. 642 (298 SE2d 627) (1982). In order for such an error to be considered harmless, the State must show that it is “highly probable” that the limitation of voir dire did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Accord Henderson v. State, 251 Ga. 398, 403 (306 SE2d 645) (1983); Legare, supra at 304.

Decided November 22, 1994

Reconsideration dismissed December 16, 1994.

McGee & McGee, Jim B. McGee, for appellant.

H. Donnie Dixon, Jr., District Attorney, Kathy L. Register, Assistant District Attorney, for appellee.

Hunt was charged with one count of arson in the first degree, one count of aggravated assault against Pam Edwards, and one count of aggravated assault against Sergeant Schafer. The State presented evidence that the fire was intentionally set, and the testimony of two police officers and Hunt’s neighbor, each of whom testified that Hunt told them that he had set the house on fire. Sergeant Schafer testified that Hunt approached him at the fire scene and thrust a knife at him which started a struggle between them, in which Sergeant Schafer was cut with the knife. Officer Lackey testified that he assisted Schafer in getting control of Hunt, who was in a “completely uncontrollable state.”

Hunt’s girl friend, Pam Edwards, testified that she and Hunt had an argument, after which, she left with their small child. She rejected her previous written statement and testified that Hunt did not cut her with a knife. Hunt’s neighbor, Edwards, Sergeant Schafer, and Officer Lackey testified that Hunt had been drinking on the morning of the fire.

Hunt admitted that he had been drinking; he testified that he had consumed two shots of gin and two sixteen-ounce Schlitz Malt Liquors. Hunt denied setting the house on fire. He also denied thrusting a knife at Sergeant Schafer; instead, Hunt testified that he was attempting to give the knife to the police officer by handing it to the officer handle first.

The jury found Hunt not guilty of aggravated assault against Pam Edwards, and guilty of arson and aggravated assault against Sergeant Schafer.

Hunt alleges no specific harm resulting from the trial court’s ruling. After our review of the record, we conclude that it is highly probable that Hunt’s inability to question the jury panel as to its relationship to or knowledge of the prosecutors who tried the case did not contribute to the verdict.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A94A2736.
    COLLINS v. COX ENTERPRISES, INC.
    (452 SE2d 226)
   Johnson, Judge.

Cox Enterprises, Inc., published a newspaper editorial endorsing John Frank Collins’ opponent in an election for the Georgia Public Service Commission. The editorial stated in part: “Once, his name was John Collins. But in a deeply cynical and revealing act, he changed it to John Frank Collins during the gubernatorial term of Joe Frank Harris, believing that if he couldn’t be elected on his merits, maybe he could fool voters into putting him into power.” Based on this quoted portion of the editorial, Collins sued Cox for libel. Cox moved for judgment on the pleadings. The trial court granted the motion. Collins appeals.

Collins argues the court erred in granting judgment on the pleadings to Cox. “To justify the grant of a judgment on the pleadings it is not sufficient that the complaint fails to state a claim on which relief can be granted, but the pleadings must affirmatively show that no claim in fact exists.” (Citations and punctuation omitted.) Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 746 (1) (337 SE2d 770) (1985). Here, Collins’ complaint affirmatively shows that no libel claim in fact exists.

“A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). As a candidate for public office, Collins was a public figure, and can recover on his libel claim only by presenting clear and convincing proof that Cox published the alleged defamatory falsehood with actual malice. See Sigman v. Cove, 169 Ga. App. 580, 581 (314 SE2d 238) (1984). The issue of actual malice, however, is not even reached in this case because the allegedly false statement published by Cox is the type of editorial opinion that cannot be held libelous.

“[T]here is no wholesale defamation exemption for anything that might be labeled opinion. To say otherwise would ignore the fact that expressions of opinion may often imply an assertion of objective fact. However, (t)he expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libelous. An assertion that cannot be proved false cannot be held libelous. A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” (Citations and punctuation omitted.) Kendrick v. Jaeger, 210 Ga. App. 376, 377 (436 SE2d 92) (1993).

Decided December 16, 1994.

Howell W. Ragsdale, Jr., for appellant.

Cook & Palmour, Bobby Lee Cook, Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, for appellee.

Cox’s editorial opinion that Collins hoped to fool voters by running for public office under the name John Frank Collins while Joe Frank Harris was governor does not imply an assertion of objective fact that might be proved false; rather, it is merely speculation as to Collins’ motive based on his behavior. Compare Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992). Collins’ motive is a matter about which reasonable people might differ. Cox’s conjecture regarding Collins’ motive cannot be proven as absolutely true or false and therefore is the sort of opinion that is not actionable as libel. See Milkovich v. Lorain Journal Co., 497 U. S. 1, 17-23 (110 SC 2695, 111 LE2d 1) (1990); Haynes v. Knopf, 8 F3d 1222, 1227 (2, 3) (7th Cir. 1993). Because no libel claim in fact exists, the trial court did not err in granting Cox’s motion for judgment on the pleadings. See Bergen v. Martindale-Hubbell, supra at 746-747 (3); Grayson v. Savannah News-Press, 110 Ga. App. 561 (139 SE2d 347) (1964).

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


author: Andrews, Judge. Beasley, Presiding Judge,

text:
    A94A1172.
    J. C. PENNEY COMPANY v. SPIVEY. DUBLIN MALL, INC. et al. v. SPIVEY.
    A94A1173.
    (452 SE2d 191)
   Andrews, Judge.

Martha Spivey sued Dublin Mall, Inc. and McKnight Properties, Inc., owners of Dublin Shopping Mall, and J. C. Penney Company, a tenant of the mall, for damages arising from her assault at the mall. We granted applications for interlocutory review to consider whether the retailer and the mall owner are entitled to summary judgment.

Viewed in favor of the non-movant, Eiberger v. West, 247 Ga. 767 (1) (281 SE2d 148) (1981), the evidence showed that Spivey had gone Christmas shopping at Dublin Mall on December 17, 1990. She parked her car near the J. C. Penney entrance. It was about 6:30 p.m., a “dark dusk,” and the lights had come on in the parking lot. Spivey could see from her car all the way to Penney’s and proceeded to walk toward the store. As she did so, she noticed a man walking towards her, but saw nothing in his demeanor or manner that caused her any alarm and she continued to walk towards him as they approached the entrance. He arrived at the double glass entrance doors a step or two ahead of her and proceeded to open the outer door for her. As she entered in front of him, he wished her a “Merry Christmas.” She began to open the inner glass door when he grabbed her purse from behind, spun her around, and dragged her back through the outer door. During the struggle, Spivey sustained a broken leg. Sikes, a mall security expert, opines in his affidavit that the security provided by the mall and J. C. Penney was inadequate in that an insufficient number of guards were posted.

Two prior incidents of assault were shown in opposition to the motions for summary judgment. An affidavit was submitted by Ms. Lampp who had her purse stolen while at the mall on November 11, 1989. On that evening, Lampp and her son had been to the mall shopping, had completed their shopping, and returned to their car which was parked near the J. C. Penney entrance to the mall. Ms. Lampp placed her shoulder purse on the asphalt near her feet as she opened the car door and a young man ran by, snatched her purse, and escaped before she could react. She had noticed a vehicle in the area driving in a “slow and suspicious manner” before the snatch and run and she believed the thief was picked up in that car. She reported the crime to the Dublin Police Department. She makes no statement in her affidavit which indicates she notified mall personnel of the incident, nor does the officer who investigated it.

Deputy Sheriff Tipton worked for the Dublin Mall Merchants’ Association as a security guard during his off time and was working the day of the Spivey incident. He was charged with patrolling the common areas of the mall and the exterior, including the parking lot. He would report any missing lights or other matters needing attention to the mall manager, Schultz. He also would be contacted concerning shoplifting or other disturbances. Prior to the Spivey incident, he was unaware of the Lampp incident, as were other mall and J. C. Penney officials. However, he was aware of another earlier purse-snatching incident outside the side entrance to the mall’s Belk-Mathews store. According to Tipton, “a subject was standing back in the bushes, right outside the door and the lady walked by and he grabbed her pocketbook and ran.”

1. The mall and store owners contend they are entitled to summary judgment because they did not breach the applicable duty of care to business invitees.

“A proprietor’s duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. Although a business proprietor is not an insurer of the safety of its patrons, a proprietor has a duty, when he can reasonably apprehend danger to a customer from the misconduct of other customers or persons on the premises, to exercise ordinary care to protect the customer from injury caused by such misconduct. Unforeseen and unexpected acts particularly those mala in se perpetrated by third parties on the proprietor’s premises do not activate liability by the proprietor unless it is shown that the proprietor has reasonable grounds for apprehending that the very type criminal act which resulted in injury to his guests is reasonably likely to occur. Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness. Evidence of prior criminal acts may be admitted to establish that the landowner was on notice that his patrons were subject to the risk of criminal assault, provided that the circumstances surrounding the prior acts were substantially similar to those surrounding the acts on which the suit is predicated.” (Citations and punctuation omitted.) Taylor v. Atlanta Center, Ltd., 208 Ga. App. 463, 465 (430 SE2d 841) (1993). “If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991).

We do not find that the circumstances surrounding either prior theft, even assuming that the incident involving Ms. Lampp had been known to the defendants, were substantially similar to those surrounding the theft of Spivey’s purse. Taylor v. Atlanta Center, Ltd., supra at 466. See, e.g., Southeastern Stages v. Stringer, 263 Ga. 641 (437 SE2d 315) (1993); Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991); Woods v. Kim, 207 Ga. App. 910 (429 SE2d 262) (1993). Compare Good Ol’ Days &c. v. Yancey, 209 Ga. App. 696 (434 SE2d 740) (1993) and Wilks v. Piggly Wiggly &c., 207 Ga. App. 842 (429 SE2d 322) (1993). The purse-snatching and assault on Spivey took place within the well-lighted entrance of J. C. Penney’s store, where Spivey’s attacker politely held the door for her before snatching her purse. The purse-snatching involving Ms. Lampp, in contrast, took place in the parking lot when her purse, on the asphalt beside her, was grabbed by a man whose accomplice drove a nearby get-away car. The earlier incident outside the entrance to Belk’s was also factually dissimilar since the criminal, hidden behind bushes, was able to surprise his victim, grab her purse and run.

“In light of the dearth of evidence of the occurrence of prior substantially similar incidents, the [mall and its tenant retailer were] entitled to summary judgment because there was no evidence sufficient to create a factual issue as to whether [they] knew or should have known that [their business invitees] were at risk of a . . . criminal . . . [assault]. [Cit.]” Savannah College of Art &c. v. Roe, supra at 766 (2).

2. Spivey contends that the mall owners and J. C. Penney negligently posted an inadequate number of guards to patrol mall parking areas in order to deter crime. In opposition to summary judgment, a mall security expert, Sikes, affied that the security practices and policies at Dublin Mall were inadequate in posting only one security guard for the mall interior as well as its exterior parking areas because only ten percent of his time is spent patrolling outside to deter crime. Also, in cold or bad weather, the security guard generally patrols outside in his unmarked, personal automobile.

“A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required. In all cases, a landowner is not required to do more than is reasonable for the protection of invitees.” (Footnote omitted.) Lau’s Corp. v. Haskins, supra at 494-495 (3).

The record in this case shows no evidence that the mall owners increased the risk of an attack or otherwise misled Spivey into believing she need not guard herself against the risk of a purse-snatching or deprived her of the means to obtain help elsewhere. Lau’s Corp. v. Haskins, supra at 495. Absent such evidence, the defendants are entitled to summary judgment.

Judgments reversed.

Johnson, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur because there was no evidence that either defendant had knowledge of any prior purse-snatching or assault. Whether they were similar or not is unnecessary to consider.

As shown in the majority opinion, there is no evidence that the 1989 Lampp incident, which occurred some 13 months previous to the attack on Martha Spivey, was reported to any employee of either defendant. As to the other incident, the only evidence of it is that security guard Tipton merely deposed that he heard of it after the Spivey incident. Even assuming this was admissible under OCGA §§ 24-3-33 and 10-6-64, see Coffee Butler Svc. v. Sacha, 208 Ga. App. 4, 6 (2) (430 SE2d 149) (1993), it can hardly constitute prior notice to defendants.

Decided December 2, 1994

Reconsideration denied December 19, 1994

Anderson, Walker & Reichert, Robert A. B. Reichert, Chambless, Higdon & Carson, Joseph H. Davis, Mary M. Katz, for appellants.

Lovett & Hicks, William E. Hicks, Frederick V. Massey, for appellee.

       See discussion of the 1993 decision of the California Supreme Court, Ann M. v. Pacific Plaza Shopping Center, 863 P2d 207 (Cal. 1993), in Case Comment, “Ann M. v. Pacific Plaza Shopping Center: The California Supreme Court Retreats from its ‘Totality of the Circumstances’ Approach to Premises Liability,” 28 Ga. L. Rev. 1053 (1994).


author: Beasley, Presiding Judge. Andrews, Judge, Blackburn, Judge,

text:
    A94A1293.
    DOE v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (452 SE2d 776)
   Beasley, Presiding Judge.

The plaintiff, using the pseudonym Jane Doe, filed a complaint against the Board of Regents of the University System of Georgia seeking a temporary restraining order and preliminary and permanent injunctive relief against disclosure. A request had been made to the University of Georgia by the campus newspaper, “The Red & Black,” under the Open Records Act, OCGA § 50-18-70 et seq. The newspaper sought release of the University police report of an incident related by plaintiff, a university employee, in which she claimed that she had been abducted and raped on the university campus by an unknown assailant. The superior court declined to issue an interlocutory injunction and plaintiff filed a direct appeal, as permitted by OCGA § 5-6-34 (a) (4).

According to plaintiff’s affidavit, she called a friend from a pay phone on October 4, 1993, and told her that she had been raped. The friend met plaintiff and drove her to the home of two other friends who were police officers with the Athens-Clarke County Police Department. Plaintiff related that she had been abducted by a man whom she did not know and raped in his van in a parking lot behind a particular building on the university campus. One of the officers reported the rape to the university police, who took action.

Plaintiff was examined at the emergency room of a local hospital and gave the same account to an on-duty university police officer. She continued to relate this account for three days to various university police officers investigating the crime. On October 7, she recanted this version of her experience. She explained in her affidavit that she was in fact forced to have sexual intercourse against her will in the apartment of a man whom she knew and with whom she had been involved in a relationship for a short time. She further related that immediately thereafter she left and drove around very upset, distraught, and in a state of emotional turmoil, and that her mental state caused her to fabricate the version she first told the police. According to plaintiff’s affidavit, she declined to pursue criminal prosecution of the alleged rapist, and there is no mention in the record of any report to the Athens-Clarke County Police Department by anyone.

On October 13, the editor-in-chief of “The Red & Black” sent a letter to the chief of the university police requesting “the incident report filed by the university employee, with the name included, who falsely claimed she was raped on October 4 at the parking lot behind the Hoke Smith building.” He stated that the case was “of special interest to the university community, since it perpetuated the specter of rape on our campus.”

The university’s Office of Legal Affairs contacted plaintiff, indicating that it intended to release the requested information. Plaintiff brought suit to prevent this action.

In the suit she contends that the disclosure of the information would cause her physical safety to be seriously threatened and endangered and her reputation to be harmed, and that she would be subjected to unnecessary embarrassment, harassment, and humiliation. She asserted a right of privacy under OCGA § 50-18-72 (a) (2) and protection from disclosure under OCGA § 16-6-23.

The superior court issued a temporary restraining order, pending the hearing on plaintiff’s request for an interlocutory injunction. It enjoined the university from disclosing to “The Red & Black” or to others plaintiff’s name or any details of the incident which might tend to identify her. Following a hearing, the court declined to issue the interlocutory injunction. It concluded that OCGA § 16-6-23 did not protect an undisputed false claim of rape as made by the plaintiff; that even if it did, disclosure outweighed nondisclosure; that the statute more appropriately related to the news media than to the defendant; that the report sought was a public record under OCGA § 50-18-70; that as a wrongdoer plaintiff had no legitimate expectation of privacy in the report, so that the report was not exempted from disclosure by OCGA § 50-18-72 (a) (2); and that the evidence was insufficient “to show any real danger to plaintiff’s life or safety or untoward harm.”

In order to maintain the status of the matter for appellate review, the court issued an injunction applicable during the pendency of the appeal pursuant to OCGA § 9-11-62 (c), enjoining disclosure by the defendant of the university police department’s investigative file. On its own motion, the court also directed that any list or information of possible suspects in the investigative files maintained by the university police department relating to the incident not be disclosed, so as to protect the personal privacy of any such individuals from unwarranted public attention and exposure.

Plaintiff enumerates as error most of the court’s conclusions and the finding that the report involved a false claim of rape.

1. We begin with the Open Records Act, which is the authority underlying the student newspaper’s request. OCGA § 50-18-70 (b) states: “All [state, county, and municipal records], except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.”

In Napper v. Ga. Pub. Television Co., 257 Ga. 156, 160 (356 SE2d 640) (1987), the Supreme Court pointed the way to proper analysis: “Where there is a request for disclosure of documents under the [Open] Records Act, the first inquiry is whether the records are ‘public records.’ ” “Public Records” are defined as “documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency.” OCGA § 50-18-70 (a).

“If they are public records, the second inquiry is whether they are protected from public disclosure pursuant to §§ 50-18-70 or 50-18-72. [Cit.] If they are not exempt under the list of exemptions found in § 50-18-72 or under any other statute, then the question is whether they should be protected by court order under § 50-18-70, [cit.], but only if there is a claim that disclosure of the public records would invade individual privacy[.] Bd. of Regents v. Atlanta Journal & Const., 259 Ga. 214, 216-218 (4) (378 SE2d 305) (1989); Ga. Hosp. Assn. v. Ledbetter, 260 Ga. 477, 479 (5) (396 SE2d 488) (1990).” Hardaway Co. v. Rives, 262 Ga. 631, 632 (1) (422 SE2d 854) (1992).

The Board of Regents is subject to the Act and there is no dispute that the incident reports in question are public records. See Bd. of Regents, supra at 214 (1). What particularly sweeps the reports sought here into the statute is OCGA § 50-18-72 (a) (4), which provides an exemption for records of law enforcement agencies in any pending investigation “other than initial police arrest reports, accident reports, and incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving said investigation and prosecution has become final or otherwise terminated.” Even if the requested information were not an “incident report” excepted from the exemption, it clearly involves a matter which has been terminated. In either event, it would be obtainable under this section, unless a bar exists elsewhere.

2. There is no other exemption listed in OCGA § 50-18-72 which would block the information from disclosure. Plaintiff relies on subsection (a) (2), which protects “[m]edical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.” She argues that this is a “similar file” as contemplated in that subsection, but that general category clearly does not cover the report here because such documents are expressly governed by subsection (a) (4).

There is another reason that subsection (a) (2) does not aid plaintiff. It is true that it, “ [p] roperly construed . . . forbids disclosure to the general public from [public] records or files of any information which would invade the constitutional, statutory or common law rights ... to privacy. [Cit.]” Doe v. Sears, 245 Ga. 83, 86 (263 SE2d 119) (1980). But “[t]he right of privacy, protectable in tort, . . . extends only to unnecessary public scrutiny.” Athens Observer v. Anderson, 245 Ga. 63, 65 (263 SE2d 128) (1980). Quoting from earlier cases, the Supreme Court described this as matters “ ‘with which the public has no legitimate concern.’ ” (Emphasis omitted.) Id. at 65, n. 3. It also referred to the principle articulated in Waters v. Fleetwood, 212 Ga. 161, 167 (91 SE2d 344) (1956): “ ‘(W)here an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one’s legal right of privacy.’ ” Id. at 66, n. 4. A report of a crime, whether the report is true or false, is such a public matter. In the words quoted in Harris v. Cox Enterprises, 256 Ga. 299, 302 (348 SE2d 448) (1986), the incident report concerning the plaintiff’s report is a subject of “ ‘legitimate public inquiry.’ ”

Thus, plaintiff is not helped by OCGA § 50-18-72 (a) (2)’s “similar files” exemption.

3. Plaintiff contends that if the whole report is not exempt from the Open Records Act exemptions, then at least her name must be withheld by virtue of another statute. The Open Records law does recognize that prohibition or exemptions may be found in other areas of the Code. OCGA § 50-18-70 (b); Hardaway Co., supra at 632. In this instance the plaintiff relies on OCGA § 16-6-23, the rape victim confidentiality statute.

OCGA § 16-6-23 (a) provides: “It shall be unlawful for any news media or any other person to print and publish, broadcast, televise, or disseminate through any other medium of public dissemination or cause to be printed in any newspaper, magazine, periodical or other publication published in this state or through any radio or television broadcast originating in the state the name or identity of any female who may have been raped or upon whom an assault with intent to commit the offense of rape may have been made.”

In relation to the Open Records Act, the Supreme Court has held that although the list of exemptions specified in OCGA § 50-18-72 is not exhaustive, “any purported statutory exemption from disclosure under the Open Records Act must be narrowly construed.” Hardaway Co., supra at 634 (2) (a). That is, the law favors disclosure. Moreover, the legislative prohibition against disclosure of name or identity of a rape victim is a penal statute, and it is a “firmly established legal principle [ ]” that “criminal statutes must be strictly construed against the state.” Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988).

With this in mind, we review the confidentiality statute. First, it is very limited. It protects only name and identity of a victim of rape or sexual assault with intent to rape, and it does so only up to the point where the name or identity appears in an open court record. See OCGA § 16-6-23 (b); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (95 SC 1029, 43 LE2d 328) (1975). Second, the State has a legitimate interest “in protecting the privacy of a sexual assault victim.” Macon Telegraph Publishing Co. v. Tatum, supra at 679 (2). In so doing, it encourages the reporting of rape and other sexual assaults, so that they may be investigated and the perpetrators prosecuted. Third, the statute is not to be rendered meaningless but must be construed so as to achieve the humane and crime-reporting purposes which prompted its passage.

If there is a stalemate between the Open Records Act and the confidentiality statute, it must be resolved in favor of providing the shield rather than the sword. First, the exception is an express and limited one as compared to a general law. “For purposes of interpretation, and to the extent of any repugnancy between them, the specific statute will prevail over the general statute, absent any indication of a contrary legislative intent.” First Nat. Bank v. Sinkler, 170 Ga. App. 668, 670 (1) (317 SE2d 897) (1984). Second, as stated in Fulton County v. Corp. &c. of Latter Day Saints, 133 Ga. App. 847, 851 (212 SE2d 451) (1975): “When the courts are called upon to determine if there is a conflict between statutes they are required to undertake to construe them together and seek to give full effect to both laws as representing all of the legislative intention. [Cit.]” Third, the sword would have potentially devastating personal consequences on the person and perhaps others as well. Weighing the interest of the public to know the real identity against the interest of the victim to remain anonymous so as to normalize her life insofar as possible, the balance has been struck in her favor as a matter of public policy by the legislature.

We find no reason to conclude that this law is not one of the laws by which the General Assembly intended to create a specific and discrete exemption from the Open Records Act.

The question remains whether it governs the proposed action of defendant, the Board of Regents.

The prohibition is not limited to the news media but expressly encompasses “any other person” as well. OCGA § 16-6-23 (a). “Person” includes a government agency. OCGA § 16-1-3 (12). The defendant Board of Regents is subject to it, as it is an agent of the state government. Board of Regents, supra at 214 (1). Divulging plaintiffs name to the newspaper, which avowedly seeks it so as to publish it along with the story which the newspaper describes as “of special interest to the University community,” would constitute dissemination as contemplated by the statute. Were it otherwise, the newspaper could obtain the name from this source and be insulated from prosecution for printing and publishing it. The reason is that “ ‘(I)f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.’ ” Florida Star v. B. J. F., 491 U. S. 524, 533 (109 SC 2603, 105 LE2d 443) (1989). This is a First Amendment-based rule broader than the source excepted in OCGA § 16-6-23 (b), i.e., “public court documents open to public inspection.” See also Tucker v. News Pub. Co., 197 Ga. App. 85, 86 (397 SE2d 499) (1990).

Plaintiff’s experience did not reach that stage; no case was ever made, so the incident never became part of the public domain in a judicial proceeding. The statute excepts from the prohibition only that which is “disclosed in public court documents open to public inspection.” OCGA § 16-6-23 (b). This is constitutionally required. Cox Broadcasting Corp. v. Cohn, supra at 496. There being only this exception, we conclude that the legislature intended not to except from the prohibition other records such as the one here at issue. “[I]f some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. [Cit.]” Roman v. Terrell, 195 Ga. App. 219, 221 (393 SE2d 83) (1990). The United States Supreme Court in the Cox case expressly limited its decision to “public court documents open to public inspection,” indicating that preclusion of access to other kinds of “official records” was left open. Cox Broadcasting Corp., supra at 496, n. 26.

The trial court concluded that the statute did not shield the plaintiff because by its own terms it did not apply to a false allegation of rape. However, plaintiff’s claim that she was in fact raped is uncontroverted, and that is an inextricable part of the report. The initial misrepresentation of the circumstances of her attack does not alter this core assertion, which we must take as true for the purposes of the confidentiality statute. OCGA § 16-6-23 does not require the matter to have been established as true in order for the identity of the victim to be protected; it covers the identity of those who “may have been” victims. Indeed, its attempt to encourage reporting of rape by protecting the identity of the victim at the initial stages would be ineffective if the protection was not offered until the rapist was adjudged guilty. By then the victim’s name has long been in a judicial record, open for all to see.

The humane purpose of the law cannot be achieved if it fails to protect the rape victim who, for the very reason of her utter despair in which the crying need for help battled with the fears and envisioned consequences of accusing the person she knew, varied the details of the rape in a futile effort to resolve the conflicting influences. If the statute fails to protect the weak, it fails in its highest calling; the strong, who perhaps have other means of support in handling such a traumatic event, need it not so much.

By invoking this statute, plaintiff does not seek to cover up her untruth. Instead, she apologizes for it, in her affidavit. She is entitled to anonymity under the circumstances of this case, a statutorily-provided compensation which is small insofar as public interest in her identity is concerned but large insofar as her life is concerned.

This is not to say that citizens can, with no dire consequences, make false reports of crime. The law deals severely with such. OCGA § 16-10-20. There is no evidence of any prosecution against plaintiff for making the report in the manner which she did.

In order to effectuate the purpose of the statute, plaintiff is entitled to an injunction. To deny it would countenance the commission of what the legislature has prohibited or, at the very least, because of the court imprimatur, insulate the disclosing Board of Regents and the publishing newspaper from criminal prosecution.

4. The last question raised is whether there should be protection under court order pursuant to OCGA § 50-18-70 (b). This need not be addressed, because the protection is afforded by statute. We note, however, that when left to the judicial branch, it is a matter of the trial court’s discretion. Houston v. Rutledge, 237 Ga. 764, 766 (229 SE2d 624) (1976). As directed in that case, the trial court is to “balance the public interest in favor of disclosure against the public interest in favor of non-disclosure.” Id. This was reiterated as the proper approach in Napper v. Ga. Pub. Television Co., supra at 161. The trial court in the instant case recognized the public interest in access to governmental information, in particular in connection with assuring fair and impartial law enforcement investigation, and the public’s interest in discouraging false claims by revealing them. No showing has been made of a need to override the statutory prohibition. Certainly the Board of Regents or its Office of Legal Affairs or its University of Georgia Police Department have no need to disseminate it; they have not even indicated a desire to do so but merely are responding to the newspaper’s request and seeking to abide by the Open Records Act “unless . . . instructed otherwise by Court Order.” The newspaper is not a party to this action, so its position is presented only in the letter of request.

The public’s interest in these matters is not disserved by withholding only plaintiff’s name and identity. The newspaper now has much of the account in the plaintiff’s own sworn words, as revealed in her affidavit filed in the trial court. There may be more in the police incident report, which is subject to disclosure. But the General Assembly has already weighed the competing public interests of encouraging the reporting of rape and sexual assault against the interests identified by the court, and it has established the public policy to be the very limited protection provided by Section 16-6-23. Thus the court has no discretion to exercise in this case and cannot override the legislative mandate.

This differs from Houston, supra at 765, a case in which the balance between competing public interests was left to the judicial branch to resolve. It also differs from Macon Telegraph Pub. Co., supra. In that case the newspaper had legally obtained truthful information about a matter of public interest which included a sexual assault. The investigating officers gave the name to reporters, with an admonition not to publish, but the newspaper published anyway. The court held that the victim’s privacy right as to the assault was lost when she committed a homicide in connection with it. Here the defendant has not divulged the name, and the interest in publishing the victim’s name as one who initially gave a fictitious version of her degrading experience, regarding which no public prosecution has occurred, is not of such a grade that disclosure is authorized. The Supreme Court pointed out in Macon Telegraph that “[r]esolving the conflicting state interests depends on the specific facts in each case.” Id. at 679.

In sum, pursuant to the Open Records Act, the newspaper is entitled to the requested incident reports but with plaintiffs name and identifying information redacted. “[E]ven when documents are found to be public records, and therefore open for inspection by the public, there may be some material contained therein which for competing public policy reasons are not subject to disclosure.” Harris v. Cox Enterprises, supra at 300. This is one of those instances.

The denial of plaintiff’s petition for interlocutory injunction is reversed to the extent that it permits disclosure of her name or identity. The Open Records Act requires defendant “to preserve the confidentiality of information that the public does not have a right to see.” Griffin-Spalding &c. Auth. v. Radio Station WKEU, 240 Ga. 444, 447 (3) (241 SE2d 196) (1978). In this instance, and in these circumstances, that information is plaintiff’s name and identity.

Judgment affirmed in part and reversed in part and case remanded with direction.

Pope, C. J., McMurray, P. J., Johnson and Smith, JJ., concur. Birdsong, P. J., Andrews, Blackburn and Ruffin, JJ., concur in part and dissent in part.

Andrews, Judge,

concurring in part and dissenting in part.

As addressed in Division 3 of the majority opinion, I concur with the majority’s conclusion that the newspaper is entitled to the requested information. I do not agree with the majority’s conclusion that the plaintiff’s name and identifying information should be redacted from such report. Accordingly, the decision of the superior court to deny the interlocutory injunction should be affirmed.

In the instant case, the name or identity of the victim is not protected by OCGA § 16-6-23 (a). The reason is that the statute does not cover an admittedly false allegation of rape. It is undisputed that the incident investigated by the campus police did not occur. Plaintiff’s affidavit makes this certain. The fact that she may have been subjected to the devastating degradation of rape by someone else at a different place and under different circumstances, and that her eventual allegation of this is included in the report of the fictitious incident, does not prevent the university from releasing the report, with her name.

The protection of OCGA § 16-6-23, which is meant to encourage the reporting of rape, was destroyed when its falsity was revealed. The asserted true account, which explained the reason for the false account, was inextricably tied to it. By reporting to university authorities a false story of abduction and sexual assault on the university campus, a possible criminal violation under OCGA § 16-10-20, plaintiff lost the right to keep her name private.

In Macon Telegraph Pub. Co. v. Tatum, 263 Ga. 678 (436 SE2d 655) (1993), our Supreme Court determined that Tatum, who defended herself against a sexual attack by shooting and killing an intruder in her home, could not recover damages against the newspaper for an invasion of privacy based on its publication of her name in connection with the sexual assault. The court reasoned that the case involved more than the reporting of Tatum’s name solely because she was a victim of a sexual assault. Accordingly, the court determined that when Tatum shot the intruder she became the object of a legitimate public interest and that the newspaper had the right to accurately report the facts regarding the incident, including her name.

In the instant case there is an even stronger public interest in disclosing the information than in Macon Telegraph. Here, there is a clear interest in alerting the public to the fact that plaintiff’s original rape report was fabricated. This public interest combined with the fact that plaintiff lost the right to keep her name private compels disclosure.

With regard to Division 4, for the reasons stated above, I respectfully dissent from those portions which conclude that the victim’s name should be redacted.

I am authorized to state that Presiding Judge Birdsong, Judge Blackburn and Judge Ruffin join in this dissent.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Judge Andrews’ dissent. The majority opinion treats the appellant’s first undisputedly false fabrication as being separate from her later story which it contends must be accepted as true. There was only a single incident (at most) and appellant falsely represented the facts thereof for three days to various police officers. This is inconsistent with the notion that her falsehoods resulted from a temporary mental state resulting from the trauma of the moment. Indeed, there is no medical evidence or expert testimony in the record to support the assumptions of the majority concerning appellant’s mental and physical state or the fact of a rape. It is not unreasonable to infer that one who has been caught in a falsehood falls back onto another fabrication when the original falsehood is exposed. This is true whether the original concoction results from a confused mental state, mental instability, or from being a person with an inappropriate original motive. Where the individual then refuses to name the rapist or to prosecute same, serious doubts are cast as to whether or not any rape ever occurred.

While being the victim of rape is a terribly degrading and traumatic experience, which the legislature has sought to soften by minimizing the victim’s public exposure, it could not possibly have been intended that one who commits a crime (by falsely reporting a crime) be insulated from public exposure because the incident falsely reported was rape. The intention was obviously to protect rape victims, not criminal perpetrators.

The very protections which the legislature has set up for rape victims results in a reduction of the protections insured by a free press and the public’s right to know. It is easy to imagine how the protections appellant seeks could be misused and result in great public harm. What if, for example, the report had been that the appellant had been abducted by a black male? What if, instead of a single report, there were numerous reports? What if such reports were part of an intentional scheme to injure blacks? Would the press and public be barred from investigating and exposing such a scheme?

Decided December 1, 1994

Reconsideration denied December 19, 1994.

McArthur & McArthur, John J. McArthur, Jeffrey A. Rothman, for appellant.

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, Rebecca S. Mick, Assistant Attorney General, for appellee.

What if the appellant had named an individual in her original fabrication? Then the falsely accused rapist’s name would be fully disclosed while the false accuser would be protected from disclosure. Under the majority’s holding the perpetrator would be considered the “victim,” and be protected, while the true victim would become the “defendant” whose identity would be disclosed. While such a potential exists in every rape case, where, as here, there is an undisputed false accusation, there can be no basis for nondisclosure of a criminal perpetrator’s name.

I join Judge Andrews in concluding that appellant has lost any right she would otherwise have had to keep her identity from being disclosed because of her admitted fabrications and the superior right of the public to know of the falsity of her original complaint, and the right to know who falsely complained.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.

       Plaintiff originally filed this appeal, which is solely from the denial of injunctive relief, in the Supreme Court. See 1983 Ga. Const., Art. VI, Sec. VI, Par. III (2). The Supreme Court, by vote of 6 to 1, transferred the case to the Court of Appeals.

       Both plaintiff’s brief and the trial court’s order refer to this Code section as the Georgia Rape Shield Statute. What is known as the Georgia Rape Shield Statute refers to rules of evidence in rape trials (OCGA § 24-2-3); it is not the statute in question here, which clothes with confidentiality the names and identity of the victim to a certain extent. See Macon Telegraph Pub. Co. v. Tatum, 263 Ga. 678, n. 1 (436 SE2d 655) (1993); OCGA § 16-6-23 (a) & (b).

       As noted earlier, in Cox Broadcasting Corp., supra at 496, the United States Supreme Court left open the question of state political institutions establishing avoidances of exposure of private information.


author: Pope, Chief Judge. McMurray, Presiding Judge,

text:
    A94A1464.
    DRIVER v. LEICHT et al.
    (452 SE2d 165)
   Pope, Chief Judge.

Plaintiff Henry Driver was injured in a fight with defendant Christopher Lee while they were both attending a party hosted by defendants Tim and Sheila Leicht. The trial court granted summary judgment for the Leichts, and plaintiff appeals.

After Lee bumped into plaintiff while plaintiff was playing pool, causing him to miss a shot, Lee and plaintiff had several hostile verbal exchanges. Tim Leicht and others advised plaintiff to go outside and “simmer down.” Plaintiff did so, but he later returned and initiated the encounter which resulted in his injury.

Relying on Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821 (2) (415 SE2d 654) (1992), plaintiff argues that the Leichts are liable for his injury. Under Moon, a social host may be liable to an innocent guest who is injured if the host is aware of a dangerous activity going on at his party and fails to stop it. However, it is undisputed that plaintiff in this case was not an innocent guest. Rather, he was an active participant in a brawl which left him injured. Plaintiff willingly drank to excess and became involved in an altercation, and then, after being convinced to leave, voluntarily returned to initiate the encounter which resulted in his injury.

Even if a social host is negligent, he is not liable to an injured guest if that guest is an initiator of or active participant in the sequence of events resulting in his injury. See Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695 (1) (409 SE2d 89) (1991). Under such circumstances, the injured guest’s negligence rather than that of the host is the proximate cause of the injury. “ ‘Assumption of the risk is a complete defense and arises when, even if the defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. (Cits.)’ [Cit.]” Id. at 696. Accordingly, the trial court’s grant of summary judgment for the Leichts was proper.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent, as it is my view that genuine issues of material fact remain as to the Leichts’ liability for failing to protect Driver against the aggressions of a person they knew or should have known was likely to commit a violent act against Driver upon their premises.

“The duty of a proprietor to protect a customer or guest against the aggressions of third parties on the premises is that of the exercise of ordinary care in keeping the premises safe. No such duty arises until the owner has knowledge or by the exercise of such care could have discovered the hazard to the [guest’s] safety and thereafter fails to use reasonable care to eliminate it.” Veterans Organization of Ft. Oglethorpe v. Potter, 111 Ga. App. 201, 206 (141 SE2d 230).

Decided December 1, 1994

Reconsideration denied December 19, 1994

McFarland & Associates, Robert P. McFarland, for appellant.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, C. Gregory Ragsdale, for appellees.

In the case sub judice, Tim Leicht testified that he was aware of two volatile encounters between Lee and Driver before midnight on the night of the party. He also admitted hearing both men exchange harsh and threatening words. Tim Leicht further testified that he was aware of a violent attack by Driver against Lee a short time before the stabbing incident; that Driver’s combative nature was (in his observation) fueled by alcohol consumption and that violent outbursts by Driver were always preceded by exchanges of threatening words. Moreover, there is evidence that Lee openly threatened to physically injure Driver before the night was over; that Lee carried out this threat by initiating a brawl which resulted in mutilation of Driver’s face and that Tim Leicht did little, if anything, to head-off the inevitable violent encounter. Under these circumstances, I do not agree with the majority that the Leichts stood blameless for the stabbing incident that erupted at their party where guests were given free access to beer on tap. See Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2), 823 (415 SE2d 654). Further, I do not agree with the majority’s new rule that liability stemming from any such negligence is cut-off by the intervening criminal acts of either Lee or Driver. “Even criminal acts, which normally are considered intervening causes, give rise to liability to those to whom such acts are foreseeable. Bradley Center v. Wessner, [250 Ga. 199, 202-203 (296 SE2d 693)].” Sutter v. Hutchings, 254 Ga. 194, 198, fn. 6 (327 SE2d 716). It is my view, that this case should be resolved by a jury, not by the trial court upon summary adjudication.

       This long-standing rule was most recently relied on by a majority of this court in Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 822 (2), 823 (415 SE2d 654). Further, “[i]n Adamson v. Hand, 93 Ga. App. 5 (90 SE2d 669) a quarrel broke out between two customers of the defendant which was allowed to proceed unchecked for five or ten minutes and the plaintiff, another customer, was eventually shot by a stray bullet. Negligence was alleged in that no effort was made either to personally intervene or to call the police. Hall v. Davis, 75 Ga. App. 819 (44 SE2d 685) was also decided on demurrer, and again negligence was alleged on the part of the proprietor in admitting a drunk and quarrelsome customer, in allowing him to remain with knowledge of his condition, and in doing nothing after he had caused preliminary commotion and argument. “The same situation obtains in Moone v. Smith, 6 Ga. App. 649 (65 SE 712) where there had been a continuous brawl for 10 or 15 minutes without any intervention on the part of the defendant.” Veterans Organization of Ft. Oglethorpe, Ga. v. Potter, 111 Ga. App. 201, 203 (2), 206, supra.