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

text:
    A93A0290.
    SMITH v. TOMMY ROBERTS TRUCKING COMPANY et al.
    (435 SE2d 54)
   Pope, Chief Judge.

Plaintiff Larry G. Smith brought a claim for personal injury against defendant Tommy Roberts Trucking Company (TRTC) and its driver, defendant Rhoades. Plaintiff’s injuries allegedly arose out of a collision between his automobile and a dump truck owned by TRTC and driven by Rhoades. The trial court granted partial summary judgment to defendants on plaintiff’s claims for punitive damages and plaintiff appeals.

According to plaintiff, on the morning of January 25, 1990 he was first in a line of vehicles stopped at a school crossing in LaGrange, where two crossing guards were posted. He did not notice a crossing guard give a “go” signal and did not know the dump truck was behind him until his vehicle had been hit and “knocked up the road.” He turned around to see what had hit him and was hit again. Plaintiff deposed: “This time [the truck driver] was pushing me, and I actually thought that it was somebody that was crazy . . . because . . . things like that don’t happen . . . somebody don’t hit you and hit you again, and keep on pushing you down the road. I put my car in gear and gunned it off the side of the road.. . .” According to plaintiff, defendant Rhoades stopped his truck, got out and said “he thought they should have a traffic light there” and “he really didn’t need all of this because he was waiting for some tickets to drop off his record.” Rhoades testified at deposition that he hit plaintiff only once, stating both that he didn’t see plaintiff and didn’t realize he was there and also that he “thought [plaintiff] was moving with other traffic.” Rhoades was charged with following too closely.

In addition to compensatory damages, plaintiff asserts a claim for punitive damages against Rhoades and against TRTC as respondeat superior, which capacity TRTC concedes. Plaintiff also asserts claims for punitive damages against TRTC for negligent entrustment, negligent hiring and negligent retention of Rhoades. These claims are based on the allegation that TRTC knew or should have known of Rhoades’ driving record which, according to plaintiff, shows him to be habitually reckless. Evidence was presented that Rhoades’ driving record for the three years prior to the accident included a DUI in his personal vehicle and two speeding tickets and a violation of a traffic control device while driving a tractor-trailer. Further, while driving a TRTC truck, Rhoades was given a citation in August 1988 for improper lane change when he “clipped” another vehicle and was given a citation for speeding in December 1988. Evidence was also presented that less than a month after the collision(s) with plaintiff in January 1990, Rhoades pled guilty to another charge of following too closely.

Plaintiff contends Rhoades was not qualified to drive the truck in question as a matter of law because TRTC violated federal regulations adopted by the Georgia Public Service Commission for regulating motor carriers (see OCGA §§ 46-7-68.1 and 40-8-2), by which TRTC was to require Rhoades to take a physical test, a written driving test and a road test, and furnish TRTC with a list of his violations and an application for employment. Defendants contend no causal relationship exists between the collision(s) in this case and either Rhoades’ driving record or any violation lay TRTC of hiring regulations. Moreover, TRTC argues it cannot be liable for punitive damages for negligent entrustment, hiring or retention because it had no actual knowledge of Rhoades’ driving record.

1. Defendants’ motion to dismiss the appeal is denied. A grant of partial summary judgment is subject to direct appeal. “An order granting summary judgment on any issue or as to any party shall be subject to review by appeal.” (Emphasis supplied.) OCGA § 9-11-56 (h). See also Cohen v. Garland, 119 Ga. App. 333, 334 (167 SE2d 599) (1969).

2. As to plaintiff’s claim for punitive damages against defendant Rhoades, the trial court erred in concluding that the evidence of record shows at most gross negligence which is insufficient to support an award of punitive damages. Punitive damages may be recovered when “it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). The plaintiff deposed that the driver of the truck struck his car not just once but twice, and the second time the truck kept pushing him down the road. Statements the driver allegedly made at the scene indicate he was in a hurry to deliver his load. The record contains evidence from which a jury could conclude that the system by which TRTC pays its drivers for hauling loads rewards fast driving and quick deliveries. Construing the evidence most favorably for the plaintiff, the jury would be entitled to find defendant acted wilfully, wantonly and with such a want of care as to entitle the jury to presume defendant acted with conscious indifference to the consequences of his acts. This evidence thus raises an issue for jury determination concerning punitive damages and the trial court erred in granting partial summary judgment to defendant Rhoades.

3. As to plaintiff’s claims for punitive damages against defendant TRTC, issues of fact are raised which must be resolved by a jury. Plaintiff presented evidence that the employer had knowledge that its driver had received tickets for two traffic violations while driving a company vehicle. Plaintiff also presented evidence that the employer failed to follow federal rules and regulations requiring it to check into the driver’s driving record along with evidence that had the employer made such a check, the record would have shown that the driver had several other traffic violations on his record, including a DUI. We cannot hold as a matter of law that the driver’s record would not support a finding that the driver was habitually negligent.

Pursuant to the facts and circumstances of this case, the fact that the record does not show TRTC had “actual knowledge” that the driver was incompetent or habitually reckless does not entitle TRTC to summary judgment. It is true that generally, liability of a party under the doctrine of negligent entrustment of an automobile must be based upon the party’s actual knowledge that the person to whom the automobile has been entrusted is incompetent and liability cannot be premised on the party’s failure to inquire about the driver’s competence. See generally Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990). Pursuant to the general rule, Georgia law does not impose a duty upon the owner of an automobile to make an investigation of the competency of one who drives the automobile to discover his driving record. Bonney Motor Express v. Yates, 171 Ga. App. 754 (2) (320 SE2d 844) (1984). “[Y]et the situation is different where the driver is in fact incompetent and the owner is in law bound to check [the driver’s] qualifications. . . .” Jones v. Dixie Drive It Yourself &c., 97 Ga. App. 669, 674 (104 SE2d 497) (1958). Where the owner has a statutory duty to check on the driver’s qualifications, “the defendant would be precluded from the defense that it did not have actual knowledge of such incompetence on the part of the driver.” Id.

Evidence was presented in this case that the employer had a legal duty to make certain inquiries into the driver’s qualifications and driving record and failed to do so. Thus, the employer’s lack of actual knowledge of defendant’s incompetency, if such is shown, is not a defense to plaintiff’s claim. To hold that the employer is entitled to summary judgment on the negligent entrustment claim because of its failure to discover the driver’s record is to reward the employer for remaining ignorant despite its legal duty to discover the facts. Such a holding is contrary to commonsense and public policy. Moreover, the record shows the employer had actual knowledge of two traffic violations committed by the driver after he commenced working for the employer. It is for the jury to decide whether these facts show the driver’s incompetency, the employer’s knowledge of the incompetency and that the employer’s negligence, if any, concurred with that of the driver to cause the plaintiff’s injuries.

In any event, the case at hand involves a claim for negligent hiring and retaining, in addition to the claim for negligent entrustment. In cases involving a claim for negligent hiring and retaining, this court has held it is necessary to show the employer knew or should have known of the employee’s dangerous propensities. See, e.g., Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665 (307 SE2d 129) (1983). Even where a defendant is entitled to summary judgment on a claim for negligent entrustment because of plaintiff’s failure to show defendant’s actual knowledge of the driver’s incompetency, this does not mean he is entitled to summary judgment on a claim of negligent hiring because the standard of care in such cases is whether defendant, in the exercise of reasonable care, should have known of the driver’s incompetency. Cherry v. Kelly Svcs., 171 Ga. App. 235 (319 SE2d 463) (1984).

In this case, as in Chupp v. Henderson, 134 Ga. App. 808 (216 SE2d 366) (1975), evidence of the employer’s knowledge of the employee’s driving record is relevant and essential because the plaintiff asserted a claim for punitive damages for negligent entrustment. Of course, evidence of a driver’s past driving record is irrelevant to the issue of his negligence in a particular instance and is prejudicial and inadmissible. See Thomason v. Harper, 162 Ga. App. 441 (1) (289 SE2d 773) (1982). The proper “solution to this problem is a separate trial of the negligent entrustment issue.” Id. at 442. See also Chupp v. Henderson, 134 Ga. App. at (2).

As to the issue of proximate cause, an employer’s negligence in entrusting a vehicle to a driver must concur, as part of the proximate cause, with the negligent conduct of the driver. Collins v. Everidge, 161 Ga. App. 708 (2) (289 SE2d 804) (1982). If the jury finds the employer knew or, in the exercise of reasonable care or exercise of the duty imposed upon it by law, should have known of the driver’s unfavorable driving record we cannot say as a matter of law that the jury could not find such negligence concurred with the negligence of the driver as a proximate cause of plaintiff’s injuries. If the jury finds the employer should have known the driver was an unsafe driver, then the jury could also find that the employer’s permitting him to drive the company-owned truck was a proximate cause of the collision. Thus, neither defendant is entitled to summary judgment on the issue of punitive damages.

Judgment reversed.

McMurray, P. J., Beasley, P. J., Cooper, Blackburn and Smith, JJ., concur. Birdsong, P. J., and Andrews, J., dissent. Johnson, J., not participating.

Birdsong, Presiding Judge,

dissenting.

I would affirm the grant of summary judgment to defendants on the issue of punitive damages. I think it overstates the evidence to say Smith testified that the second time the truck hit him it “kept pushing him down the road.” This makes it appear defendants’ truck continuously pushed Smith down the road. There is no such evidence. What Smith said was, “I got hit again. This time, he was pushing me, and I actually thought that it was somebody who was crazy, to be honest with you, because, I mean, things like that don’t happen to you, you know, somebody don’t hit you and hit you again, and keep pushing you down the road. I put my car in gear and gunned it off the road.” There is no evidence Rhoades was continuously pushing the car down the road except this statement which in context is merely a dramatic expression of his feeling that to be hit twice, in his estimation, amounted to being “pushed” because it was crazy for “somebody [to] hit you and hit you again.” Although we construe the evidence in Smith’s favor on defendants’ motion for summary judgment, his statement in its entirety was a dramatic expression and does not amount to evidence that Rhoades really did continuously push Smith up the road. Defendant Rhoades was stopped behind Smith at the school crossing and had “just started out from [the crossing guard’s] motioning for traffic to come on” when he “felt it popping.” He testified he hit Smith only once; he “didn’t realize [Smith] was there” but “thought he was moving with the other traffic. ... I didn’t see him.”

Smith claims punitive damages against Rhoades and against TRTC as respondeat superior (which capacity TRTC concedes); and against TRTC for negligent entrustment, negligent hiring and negligent retention of Rhoades. Smith’s factual allegations sound persuasive merely by their lengthy recitation, but even if they are true there is no evidence Rhoades’ driving record and TRTC’s possible negligence in hiring him, or any inferences therefrom, had any relation to this collision.

Circumstances authorizing punitive damages “must relate to the tort being sued on.” C & S Nat. Bank v. Bougas, 245 Ga. 412, 413-414 (265 SE2d 562). Punitive damages are allowed only if there is “clear and convincing evidence that the defendant’s actions showed willful misconduct . . . wantonness ... or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b).

The evidence merely shows that Rhoades’ vehicle struck Smith’s vehicle from the rear. Even assuming Rhoades bumped Smith twice, as Smith says, there is no evidence as. to why he did so. There is no basis whatever to infer that the first or second “hit” was intentional or wanton. Nothing can be gleaned from the evidence pertaining to this collision that anything beyond negligence caused it. Other than Smith’s subjective opinion that Rhoades was acting crazy, there is no evidence that Rhoades, in this collision, did anything which by “clear and convincing evidence” showed wilful misconduct, wantonness, or an entire want of care raising a presumption of conscious indifference to consequences. The majority has not shown by facts, or otherwise, that there were actions which were wilful and wanton; without clear and convincing evidence of such acts, punitive damages will not be authorized.

Negligence, even gross negligence, is inadequate to support a punitive damages award. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (3) (b) (365 SE2d 827). Under OCGA § 51-12-5.1 (b), something more than the mere commission of a tort is required for punitive damages. There must be “clear and convincing evidence” in this collision of circumstances of aggravation or outrage. Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811). Construing the evidence most favorably to Smith, the evidence as to this collision does not present “clear and convincing evidence” of aggravation as to support punitive damages, even though the jury may find gross negligence in the truck driver’s actions. Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 918 (423 SE2d 257).

Rhoades’ prior and subsequent traffic violations are irrelevant to his acts in this case. The great danger of admitting them in evidence is that they will infect the jury’s perception of the cause of this collision. See Thomason v. Harper, 162 Ga. App. 441 (289 SE2d 773).

I also think summary judgment to TRTC on the issue of negligent entrustment was proper. Since Smith should not be entitled to punitive damages and TRTC admits liability as respondeat superior, “the liability link from the negligence of the driver to the employerentruster has been established rendering proof of negligent entrustment unnecessary and irrelevant.” Id. at 442. Moreover, evidence of negligent entrustment, hiring and retention has no causal relation to this collision. Even violation of regulations as to hiring a carrier driver is actionable negligence only if there was a causal connection between the violations and the injury. Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 438 (99 SE2d 209); Sumner v. Otasco, Inc., 175 Ga. App. 177 (333 SE2d 28).

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

Butler, Wooten, Overby & Cheeley, C. Frederick Overby, Peter J. Daughtery, for appellant.

.Gray, Gilliland & Gold, T. Cullen Gilliland, John B. Austin, for appellees.

There is no evidence that this collision had any causal relation to Rhoades’ “other acts” and TRTC’s knowledge or lack of knowledge of them, or TRTC’s negligence in hiring him. Smith’s subjective impression that Rhoades was acting crazy adds a spicy flavor of “wantonness” to this rear-end collision, but at best the only thing the evidence tells us is that Rhoades struck Smith’s car twice. Smith’s subjective impression of Rhoades’ state of mind is not “clear and convincing evidence” required to support an award of punitive damages under § 51-12-5.1. I would be very careful not to confuse the driver’s other acts and the employer’s possible negligence in hiring and retaining him, weighty as they may seem, with the evidence of this collision. Unless such other acts provide “clear and convincing evidence” of wantonness in this case, they are irrelevant and prejudicial. I would affirm the trial court.

I therefore respectfully dissent.

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


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A0316.
    ORR v. THE STATE.
    (434 SE2d 723)
   Blackburn, Judge.

Appellant Roger Orr was found guilty by a jury of driving under the influence of alcohol and failure to maintain lane. Orr appeals his conviction based upon the improper admission into evidence of a video/audio tape of the investigatory stop and his subsequent arrest in connection therewith.

Orr’s sole enumeration of error, an objection which he raises for the first time on appeal, is that the trial court erred in allowing into evidence a video/audio tape of his arrest where said tape contains statements he made while in police custody, which statements were not made available to his counsel despite a timely demand therefor pursuant to OCGA § 17-7-210 (a).

On June 28, 1991, Orr was arrested and charged with the offense of driving under the influence of alcohol and failure to maintain lane. The investigation and arrest was video/audio taped by a camera in the police car which stopped Orr. Sergeant Rankin Gibby, with the Fayette County Sheriff’s Department, testified that upon pulling over the vehicle driven by Orr, he turned the camera on and recorded what transpired.

On April 14, 1992, Orr filed a timely demand for a copy of any statements made by him while in custody pursuant to OCGA § 17-7-210 (a).

OCGA § 17-7-210 (a) provides that “[a]t least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by him while in police custody. . . .” Subsection (c) of the same Code section provides that “[f]ailure of the prosecution to comply with a defendant’s timely written request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution’s use in its casein-chief or in rebuttal.” (Emphasis supplied.)

On August 5, 1992, the matter came on for jury trial in the Superior Court of Fayette County. During rebuttal, the state sought to introduce the video/audio tape of the investigatory stop and arrest of Orr for impeachment purposes. Orr’s counsel objected to the use of the video portion of the tape, contending that it was discoverable and had not been produced by the state, stating: “I would object to the pictorial matter coming in. . . . If he [state] wants just to wind the tape up to where he says that Mr. Orr is saying something, turn off the screen, and play the. . . .”

For the first time on appeal, Orr objects to the admission into evidence of the audio portion of the tape. “It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision. . . . [Cit.]” (Punctuation omitted.) Moreno v. State, 204 Ga. App. 463, 464 (419 SE2d 735) (1992). Grounds for reversal which may be considered on appeal are limited to those which were argued before the trial court. Stephens v. State, 164 Ga. App. 398, 399 (3) (297 SE2d 90) (1982). Orr’s objections were not properly raised before the trial court and cannot be properly considered.

Even if this court considered the enumeration of error as to the admission of the audio portion of the tape, raised by Orr for the first time on appeal, it would not require a reversal of the trial court’s ruling. The record reflects that during trial, the prosecution stated in its place that it had timely provided Orr’s counsel with Orr’s statements, including pre-custody statements, and said counsel did not deny receipt of same and objected only to the admission of the video portion of the tape.

Decided June 25, 1993 —

Reconsideration denied July 30, 1993 —

Richard H. Johnston & Associates, Gregory M. Brown, for appellant.

W. Fletcher Sams, District Attorney, William H. Stevens, Assis tant District Attorney, for appellee.

To the extent herein relevant, OCGA § 17-7-210 limits the defendant’s discovery rights to written or oral, inculpatory, in-custody statements. We are constrained to follow the holding in Looney v. State, 180 Ga. App. 693 (350 SE2d 29) (1986), that visual reproductions of an accused’s actions while in police custody are not discoverable and therefore Orr’s objection at trial to the admission of the video portion of the video/audio tape is without merit.

There was evidence to support a finding that the state had provided all properly discoverable material. A “verbatim account” of defendant’s statements was not required, where counsel was given a written summary of the statement prior to trial which included all relevant and material portions of the defendant’s inculpatory, in-custody statements. Johnson v. State, 177 Ga. App. 705 (340 SE2d 662) (1986).

The court’s ruling that the video/audio tape was admissible for impeachment purposes was a correct response to the stated purpose of the state in introducing same, and was not a limitation upon the state’s right to use the video/audio tape as the state had complied with its discovery obligations under OCGA § 17-7-210. Had the state failed to properly produce timely requested discoverable statements, then it would have been precluded from using same at trial for any purpose, including impeachment. OCGA § 17-7-210 (c); Henson v. State, 168 Ga. App. 210 (308 SE2d 555) (1983).

Judgment affirmed.

Johnson and Smith, JJ., concur.

       In Looney, we noted that a videotape recording was a logical extension of the discoverable items listed in OCGA § 17-7-210, but that such an extension would have to be made by the legislature, as the body which originally created this discovery right. Id. at 693. We again encourage the legislature to review OCGA § 17-7-210 and the limiting language contained therein which does not allow discovery of in-custody videotapes or video/audio tapes made in connection with DUI investigatory stops.


author: Beasley, Presiding Judge.

text:
    A93A0401.
    POPE v. DEPARTMENT OF HUMAN RESOURCES et al. MOORE v. DEPARTMENT OF HUMAN RESOURCES et al. MOORE et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
    A93A0402.
    A93A0403.
    (434 SE2d 731)
   Beasley, Presiding Judge.

These appeals present another aspect of the case of two babies who were unknowingly substituted for each other at birth. See Moore v. Pope, 196 Ga. App. 475 (396 SE2d 243) (1990) rev’d Pope v. Moore, 261 Ga. 253 (403 SE2d 205) (1991), involving baby Cameron’s adoption by Mrs. Pope.

On October 7, 1983, Jodie Pope, a white female married to a white male, was admitted to Griffin-Spalding Hospital, where she delivered a white male infant now named Melvin Eugene Moore. That same day, Tina Williams, an unmarried white female, was likewise admitted to Griffin-Spalding Hospital, and she delivered a biracial child, now named Cameron Keith Pope, whose father was Barnes, a black male.

Prior to discharge of the mothers on October 9, someone in the hospital switched the babies, so that Mrs. Pope left the hospital with Ms. Williams’ child and Ms. Williams left the hospital with Mrs. Pope’s child. On the morning of the discharge, each woman signed a certification that she had examined the baby she was given at discharge and had determined that the child was in fact her baby.

Before entering the hospital, Tina Williams had informed Janice Maddox, a Spalding County Department of Family & Children Services (DFACS) adoption caseworker, that she intended to surrender her child to DFACS for adoption. She told Maddox that Barnes was the father, that the child was thus biracial, and that she had a daughter by Barnes who had blonde hair and looked as if she tanned easily but was in all other respects white in appearance. Maddox viewed a color photograph of the child which showed this to be true.

After Cameron was born but while Ms. Williams was still in the hospital, she contacted Maddox and told her that she had changed her mind. Williams later decided that she wanted to put the baby up for adoption after all. On October 12, she brought Melvin to Maddox and surrendered him for adoption. She told Maddox that Barnes denied he was the father and had asked for a blood test. Williams certified that the baby was hers, signed a sworn affidavit that Barnes was the father, and surrendered her parental rights.

When Maddox tried to obtain a surrender of parental rights from Barnes, he did not appear for a scheduled interview or respond to telephone calls. As a result, Maddox spoke with an attorney for the Department of Human Resources (DHR) about instituting judicial proceedings to terminate the parental rights of Barnes, as well as “John Doe” respondents. However, on December 6, 1983, Barnes unexpectedly came to the Spalding County DFACS office, executed a sworn acknowledgement of paternity, and surrendered his parental rights. He also answered a questionnaire which showed that he had many African-American relatives who were also light-skinned. He testified that he nonetheless told Maddox at that time that the infant was not the same baby he had seen in the hospital, the baby was smaller and a different color, that he was not the father of this child, and that he had stated this to Williams when she brought Melvin home from the hospital. He also testified that he told Maddox he had asked to take a blood test.

When Maddox delivered Melvin to a foster mother prior to the child’s being adopted, the foster mother expressed the opinion that he was fully white. Maddox was concerned with Melvin’s fair complexion and purported biracial parentage out of a desire to place him with an appropriate family and to make him aware of what she believed was his biracial heritage. She consulted the district social services director, who sought the advice of a special adoption consultant as to how to resolve ambiguities as to whether a child is biracial. The consultant gave instructions to physically examine the child for dark skin pigmentation, known as Mongolian spots, as an indication that a child is biracial, although the consultant advised that their absence does not establish that the child is not biracial. The consultant also advised them that biracial children sometimes appear to be white in early infancy but experience skin darkening over time. At Maddox’s direction, the foster mother examined Melvin for such spots but did not find any.

In January 1984, Melvin, still in foster care, underwent surgery at the Griffin-Spalding Hospital. So that the child would be provided with informed medical care thereafter, Maddox obtained parts of the medical records relating to his surgery and incorporated them into his adoption record pursuant to standard adoption procedure. Coincidentally, Cameron was also admitted to the Griffin-Spalding Hospital that same month. No one noticed any discrepancy between the blood types of the children as shown in their neonatal records and their blood types as shown in medical records relating to their treatment in 1984.

Through the State Adoption Exchange, DFACS adoption caseworker Lovett placed Melvin for adoption in April 1984 with the Moores, a biracial couple. (Each was not biracial; one was black and one was white.) In October 1984, their petition to adopt him was granted.

In March 1988, Jodie Pope’s husband left her, denying paternity of Cameron. As part of a subsequent divorce proceeding, they all submitted to blood tests which showed that neither he nor Jodie is Cameron’s biological parent. However, Jodie adopted him. See Pope v. Moore, supra. The boys were now four-and-one-half years old.

The Popes conducted a review of birth records at the GriffinSpalding Hospital for October 1983 and discovered Tina Williams’ records. They also obtained a court order for access to Melvin’s adoption records and, as a result, located the Moores. Melvin subsequently went to visit his birth mother Jodie Pope for Thanksgiving, and she refused to return him. Custody is currently in dispute in another case.

The children, Cameron (adopted by Jodie Pope) and Melvin (adopted by the Moores), by next friend and mother Jodie Pope, filed identical actions against the Georgia DHR, the Georgia DFACS, the Division of Social Services, the Georgia Adoption Exchange, the Spalding County DFACS, the Chatham County DFACS, and various officials and employees, seeking damages for general negligerice and professional malpractice because of defendants’ failure to recognize that they placed the wrong child for adoption. Plaintiffs state that there are basically two groups of defendants:. (1) those directly involved in the wrongful placement of Melvin with the Moores; and (2) those who failed to implement specific training procedures and policies, such as having a child whose biracial parentage is in doubt examined by a trained physician, which plaintiffs allege would have averted the wrongful placement or corrected it after it had occurred.

Defendants moved for summary judgment, arguing among other things that the undisputed material facts showed no negligence on their part. They submitted affidavits and depositions in which experts who are familiar with the standard of care required of workers in the fields of adoption and child placement, and who had reviewed the adoption record of Melvin Moore, testified: The DHR has set proper policies, procedures, and guidelines concerning the placement and adoption of biracial children; reasonable efforts should be undertaken to ascertain the paternity of a child surrendered for adoption; Maddox’s actions in this regard met or exceeded professional standards; in cases involving unwed mothers surrendering children for adoption, putative fathers are infrequently named by the mother, and if they are named, they rarely acknowledge paternity; where the putative father denies paternity, the appropriate course of action is to obtain a termination of the parental rights of the putative father and “John Doe” respondents through the judicial process; it is not the usual or customary practice to perform blood testing when parental rights are being terminated, and adoption caseworkers lack the authority to compel parties to submit to blood testing; there is no requirement that an adoption caseworker obtain complete medical records for an adoptive child and compare findings for inconsistencies; Maddox obtained all required medical records for placement in Melvin’s file.

As their expert evidence, plaintiffs submitted affidavit and deposition of attorney Hayes, who had only reviewed small portions of the adoption record, and the only opinion she expressed was that an issue as to Melvin’s parentage and racial background had been raised and needed to be thoroughly investigated, but she did not know if it was in fact thoroughly investigated. When asked whether she was aware of any standards, guidelines, or procedures in the fields of adoption or child placement that are applicable to the facts of this case, she responded that she could say that they exist, but she had not researched them and could not say what they are.

Finding that attorney Hayes is not an expert in the field of adoption or child placement and that her affidavit is insufficient under OCGA § 9-11-56, the court granted defendants’ motion for summary judgment on this claim. The court noted that plaintiffs’ counsel had conceded at the hearing that there was no support for the professional negligence claim.

Likewise, the court granted defendants’ motion for summary judgment on the general negligence claim, on grounds that Maddox and Lovett complied with the applicable standard of care, and that plaintiffs had submitted no evidence of negligence. The court also ruled that defendants were under no legal or professional duty to foresee the bizarre and extraordinary series of events which preceded the adoption of Melvin, and that they owed no duty to Cameron whom they never saw and who suffered no injury attributable to them.

In Case No. A93A0401, Cameron, by Jodie, appeals. In Case No. A93A0402, Melvin, by Jodie, appeals. In Case No. A93A0403, Eugene and Edith Moore appeal, as intervenors on Melvin’s behalf as his legal parents, OCGA § 9-11-24.

1. Defendants were entitled to summary judgment on plaintiffs’ professional negligence claim.

The court was authorized to rule that attorney Hayes is not an expert in the fields of adoption and child placement, see Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 66 (2b) (397 SE2d 576) (1990), and that the contents of her affidavit are insufficient. See Chandler Exterm. v. Morris, 262 Ga. 257, 259 (416 SE2d 277) (1992). Plaintiffs do not enumerate these rulings as error; nor do they dispute the fact that their attorney conceded below that there was no support for their professional negligence claim. See Turner v. Kitchings, 199 Ga. App. 860 (406 SE2d 280) (1991).

2. Defendants were also entitled to summary judgment on plaintiffs’ general negligence claim. Their arguments relate only to Melvin.

When a professional is charged with general negligence, “so-called ‘administrative acts’ whose performance requires no professional knowledge, skill or experience need not be supported by expert opinion. [Cits.]” Hillhaven Rehab. &c. Center v. Patterson, 195 Ga. App. 70, 71-72 (2) (392 SE2d 557) (1990). Expert testimony is also not required in extreme cases where the error of judgment is gross, and negligence is clear and palpable. Hyles v. Cockrill, 169 Ga. App. 132, 138 (10) (312 SE2d 124) (1983).

Plaintiffs argue that adoption caseworker Maddox failed to compare Melvin’s neonatal medical records with the medical records related to his surgery in 1984 and ascertain that these two sets of records showed different blood types for the child. However, defendants’ expert evidence shows without conflict that Maddox obtained all the surgical records which her legal duties required, and the portions of the record to which we have been referred by defendants show that the records Maddox obtained did not reflect the child’s blood type. Plaintiffs argue otherwise, but without reference to any place in the record to support the argument with evidence. We thus hold that, as a matter of law on the record in this case, Maddox did not commit any administrative error and is not chargeable with any negligence in this regard.

Plaintiffs argue that Maddox should have administered a blood test to Barnes, Cameron’s father. However, defendants’ expert evidence again shows without conflict that she was under no legal duty to do this, and it is a matter requiring the exercise of professional judgment.

Plaintiffs have produced no evidence of general negligence and thus cannot avoid adverse summary judgment on this claim. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

3. Even assuming a breach of duty, it appears from the record in this case that the proximate cause of Melvin’s separation from the Popes was the negligence of whoever in the hospital switched him with Cameron at birth. The two mothers’ failure to challenge identity also may have contributed. Melvin’s separation from his biological mother Jodie was not caused by Williams’ surrendering him for adoption or by state adoption workers placing him with the Moores, as opposed to a white couple had it been determined that he was not biracial. “ ‘The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. . . .’ [Cits.]” Standard Oil Co. v. Harris, 120 Ga. App. 768, 771 (3) (172 SE2d 344) (1969).

Decided July 6, 1993 —

Reconsideration denied July 30, 1993 —

Robert H. Benfield, Jr., Thomas W. Malone, for Pope.

Newton & Howell, John T. Newton, Jr., for Moore.

Michael J. Bowers, Attorney General, Mary F. Russell, Assistant Attorney General, Remar & Graettinger, Robert B. Remar, for Dept. of Human Resources.

Plaintiffs charge defendants with negligence in failing to ascertain that Barnes was not Melvin’s father. They maintain that they have established causation in fact for damages sought, on the theory that had defendants determined that Barnes was not the father, this would have led Williams to realize that she was not the mother and would have resulted in the return of Melvin to the Popes. That is highly speculative.

A tort defendant is only liable for the reasonably foreseeable consequences of his or her negligent acts. Hosp. Auth. of Walker, Dade & Catoosa Counties v. Smith, 142 Ga. App. 284, 287 (5) (235 SE2d 562) (1977). The reasonably foreseeable consequence of an adoption caseworker’s failure to ascertain the true paternity of an adoptive child is loss of the biological father’s right and the child’s corresponding right to establish a parent-child relationship. It was not reasonably foreseeable by defendants that if they determined that Barnes was not Melvin’s father, this would have led Williams to determine that she was not the mother and would have resulted in the return of the adoptive child, Melvin, to his biological parents and the surrender for adoption of another child, Cameron. By failing to determine that Barnes was not Melvin’s father, defendants could not have breached a duty of care owed to Cameron, a child whom they had never heard of or seen. Whether he was “injured” by adoption by Mrs. Pope rather than by the Moores may not be discernable by legal standards nor measurable by legal yardsticks. In any event, he was in no way injured by the defendants — nor was Melvin.

4. It is unnecessary to address the remaining arguments regarding liability of the individual defendants.

Judgments affirmed.

Cooper, J., concurs. McMurray, P. J., concurs in the judgment only.

       The issue of whether the surrender of parental rights signed by Barnes and Williams legally related to their biological child Cameron or to the child they physically surrendered, that being Melvin, is not before us.

       Their intervention obviates the problem of Mrs. Pope’s legal standing to bring suit for Melvin who, although he is in fact her biological child, has been adopted by the Moores. Their intervention on Melvin’s behalf creates the anomaly of their pressing a claim that he was injured by being placed for adoption by them.


text:
    A93A0412.
    WILLIAMS v. AFLAC, INC.
    (434 SE2d 725)
   Blackburn, Judge.

AFLAC, Inc., formerly American Family Corporation, the appellee/plaintiff, brought the instant action against Peter Williams, appellant/defendant, seeking declaratory relief as to the enforceability of an agreement in which the chairman of AFLAC agreed to retain Williams to provide legal representation to the corporation for a seven-year period, beginning on January 1, 1988. AFLAC terminated the contractual agreement on June 24, 1991. Williams responded to the declaratory action, and asserted counterclaims against AFLAC and employees of the corporation for damages, based upon AFLAC’s breach of the 1987 contract. Thereafter, Williams moved to dismiss AFLAC’s declaratory action based upon the failure of the corporation to state a claim upon which relief can be granted, and AFLAC moved for a judgment on the pleadings, or in the alternative, for summary judgment. Following a hearing on the motions, as well as AFLAC’s motions to dismiss Williams’ counterclaims and to compel discovery, the trial court granted AFLAC’s motion for summary judgment on Count 1 of the plaintiff’s complaint and on Williams’ counterclaims. Without explanation, the trial court concluded that the purported contract between the parties was null and void, and, therefore unenforceable. This appeal followed.

It is undisputed that Williams had been providing legal services to AFLAC for several years prior to 1987. On December 11, 1987, Williams and John Amos, chairman and chief executive officer of AFLAC, discussed the continuation of Williams’ representation of the corporation, and mutually decided to execute their agreement in writing. John Amos signed the December 11, 1987, agreement on behalf of AFLAC, whereby the corporation agreed to retain Williams for legal representation for a seven-year period beginning January 1, 1988, at a rate of $4,950 per month for the calendar year of 1988, with the monthly rate increasing to $7,500 per month on January 1, 1992, $10,000 per month on January 1993, and for the period thereafter, the retainer would increase by $12,000 per year. The agreement was subject to automatic renewal on the same terms, beginning December 31, 1995, for an additional five years, unless terminated for just cause at least 90 days prior to the expiration of the term. Upon such termination, AFLAC would be responsible for damages in an amount equal to 50 percent of the sums under the remaining terms, plus renewal of the agreement.

On June 24, 1991, Daniel Amos, the nephew of John Amos, notified Williams by a letter of that date that the corporation was “in the process of centralizing all expenses for outside legal fees. As a result of this audit procedure, I am directing that, effective immediately, the retainer being paid to you cease.” In a follow-up letter of July 8,1991, Daniel Amos stated that Salvador Diaz-Verson, president of the company, had informed him that a written agreement existed concerning the fee arrangement. He further stated that he was “under the impression that Sal had been keeping you informed on where we stood in this matter since he had indicated such in his memo to me.” Upon receipt of the July 8, 1991, letter, Williams demanded the payment of damages pursuant to the written agreement, attorney fees and expenses of any litigation. Based upon AFLAC’s alleged concern as to the validity of the contract, this action was filed on July 30, 1991.

1. In his first enumeration of error, Williams asserts that the trial court erred in denying his motion to dismiss AFLAC’s declaratory judgment action in that the factual circumstances in this case are inappropriate for declaratory relief. Williams relies on our decision in Chattahoochee Bancorp v. Roberts, 203 Ga. App. 405 (416 SEd 875) (1992) in support of his assertion.

In Roberts, Roberts had been terminated from her employment with Chattahoochee Bancorp (Bancorp), and ten days later, requested payment pursuant to a purported contractual agreement between the parties. In her written request for payment, she enclosed a copy of the contract which provided for the terms of her payment, including salary increases, bonus payments, and payments upon termination of her employment. In response to the letter, Bancorp indicated that it considered the matter fraudulent and it intended to fully defend any legal action that may have been brought by Roberts, and intended to seek appropriate sanctions. Thereafter, Bancorp filed an action seeking a determination of the validity of the agreement. We concluded that Bancorp was seeking an advisory opinion to confirm the propriety of its denial of Roberts’s claim in the event the denial resulted in future litigation, as Bancorp had affirmatively established its position.

“A declaratory judgment may not be granted in the absence of a justiciable controversy. The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. A declaratory judgment is not available to a party merely to test the viability of its defenses.” (Citations and punctuation omitted.) Roberts at 406. As in. Roberts, AFLAC “was not uncertain of its actions and needed no direction with respect to any future conduct on its part. [Cit.]” Id. In its letter of June 24, 1991, the corporation clearly expressed its intention to terminate the fee arrangement as it immediately ceased payment to Williams. AFLAC further noted that it had taken a position in reference to the fee arrangement in its letter of July 8,1991. As a result, its rights and obligations pursuant to the agreement had accrued at the time of the filing of the declaratory action. Id. “In effect, [AFLAC] is seeking an advisory opinion to confirm the propriety of its denial of [Williams’] claim in the event the denial results in future litigation.” Id. at 406-407. Although AFLAC maintains that Jahncke Svc. v. Dept. of Transp., 134 Ga. App. 106 (213 SE2d 150) (1975), controls the facts in the case sub judice, we disagree. In Jahncke Sue., Jahncke made a claim for work completed under a contract, but the department did not deny the claim or take any firm position as to the claim. In the case sub judice, AFLAC terminated the retainer agreement and also ceased future payment to Williams under the retainer arrangement prior to the filing of the underlying action.

Although the trial court declared that the agreement between the parties in the case sub judice was void and unenforceable, we conclude otherwise. “The letter [agreement of December 11, 1987] clearly purports] to be mutually binding upon the parties, and [it] set[s] forth both the nature of the services to be performed and the consideration to be paid for them with sufficient specificity to comply with the statute of frauds. [Cits.]” Henson v. American Family Corp., 171 Ga. App. 724, 728 (1) (321 SE2d 205) (1984). The fact that the retainer agreement provides for services on a long-term basis does not make the agreement against public policy. As we responded to AFLAC’s assertion in Henson, a case involving AFLAC and a similar attorney employment contract “[i]n this country express contracts between attorney and client as to compensation are generally recognized, and a contract to pay a retaining fee, though the contemplated services are not rendered, is valid and enforceable.” (Citations and punctuation omitted.) Id. As Justice Bleckley noted in McNulty, George & Hall v. Pruden, 62 Ga. 136, 141 (1878), “[i]n the nature of things a retainer is earned when the attorney dedicates himself by contract to his client’s service, thereby cutting himself off from employment by the adverse party . . . but so long as the attorney remains able and willing to perform all the service for which he contracted, neither the fault nor the misfortune of his client ought to affect him. . . .” Id. AFLAC further urges this court to overrule Henson. However, we decline to do so.

Additionally, AFLAC maintains that the damages provision of the contract establishes a penalty for the termination of the contract. As we noted in Duke v. Williams, 197 Ga. App. 836, 838 (399 SE2d 544) (1990), “ ‘[i]f the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.’ OCGA § 13-6-7.” Based upon our tripartite inquiry into such factors as the difficulty in the exact estimation of damages, the intention of the parties to provide for the damages, and the reasonable pre-estimation of the sum as the probable loss, see Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976), we conclude that the liquidated damages portion of the agreement is enforceable.

Consequently, the trial court erred in failing to grant Williams’ motion to dismiss this declaratory action and in granting summary judgment in favor of AFLAC on the declaratory action.

2. Williams also contends that the trial court erred in granting summary judgment in favor of AFLAC on his counterclaim. In light of our decision in Division 1 of this opinion and to the extent that the trial court granted summary judgment in favor of AFLAC on Williams’ counterclaim for damages under the original term of the retainer agreement, we agree. However, to the extent that Williams asserts a claim for damages based upon the renewal provision of the retainer agreement, summary judgment in favor of AFLAC was appropriate. Applying the fundamental rules of construction to the terms of the automatic renewal provision contained within the retainer agreement, Williams cannot recover damages based upon the renewal period because the parties did not mutually assent to the renewal of the retainer agreement at or before the date of the renewal, December 31, 1995. See Nikas v. Hindley, 99 Ga. App. 194, 198 (108 SE2d 98) (1959). In fact, AFLAC expressed its intention not to renew the contract when the corporation terminated the retainer agreement with Williams in June 1991, four years prior to the date of the automatic renewal of the agreement. In Henson, unlike the subject case, there was no future renewal of the contract involved. Where, as here, there is a future renewal provision contained in a contract which has been terminated during its original term, one claiming damages under the contract is ordinarily barred from recovering damages under such renewal provision of the contract due to the absence of mutual assent to the renewal term. Ordinarily, a client is free to terminate its employment of an attorney at any time. White v. Aiken, 197 Ga. 29, 32 (28 SE2d 263) (1943). In view of the provision for damages upon termination during the original term contained in the contract, Williams would be entitled to such damages, while he would not be entitled to damages under the renewal provision, as there was no mutual assent to the renewal, and hence no extension agreement to be enforced.

Accordingly, the trial court erred in granting summary judgment in favor of AFLAC on Williams’ counterclaim for damages under the original term of the subject contract.

Decided June 25, 1993 —

Reconsideration denied July 30, 1993 —

Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., Emily J. Brantley, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, Hatcher, Stubbs, Land, Hollis & Rothschild, Joseph L. Waldrep, for appellee.

Champion & Champion, Forrest L. Champion, Jr., amicus curiae.

Judgment affirmed in part and reversed in part.

Johnson and Smith, JJ., concur.

On Motion for Reconsideration.

Williams has filed a motion with this court for costs, pursuant to OCGA § 5-6-5. However, that Code section entitles a successful appellant to a judgment for such costs “as soon as the remittitur is returned to the court below.” In Dept. of Med. Assistance v. Llewellyn, 197 Ga. App. 231 (398 SE2d 256) (1990), this court concluded that the return of the remittitur is the earliest point in time that an appellant may assert a claim for costs in the appellate court under OCGA § 5-6-5. Accordingly, Williams’ claim for such costs should be presented to the trial court upon return of the remittitur.

       Following the trial court’s grant of summary judgment in favor of AFLAC, AFLAC dismissed Count 2 of its complaint against Williams without prejudice.

       After he asserted counterclaims against various employees of AFLAC, Williams moved to join those individuals to this action, but subsequently voluntarily dismissed the motion.


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A0456.
    FREEMAN et al. v. PIEDMONT HOSPITAL et al.
    (434 SE2d 764)
   Cooper, Judge.

Appellees are Piedmont Hospital; Hulett C. Sumlin, the hospital administrator; and Dr. Walter H. Butler, the chairman of the hospital’s Department of Anesthesiology and a member of its Credentials Committee. Appellants, an anesthesiologist (“Dr. Freeman”) and his professional corporation, brought this action against appellees to recover damages stemming from a letter sent by the hospital administrator to the Composite State Board of Medical Examiners (“the Board”) after Dr. Freeman voluntarily resigned from the medical staff of the hospital. On appeal, appellants challenge a trial court order granting appellees’ motion for summary judgment and denying appellants’ motion to compel discovery.

Because appellants, are the respondents on a motion for summary judgment, we view the evidence in a light most favorable to them and give them the benefit of all favorable inferences that may be drawn from the evidence. See Eiberger v. West, 247 Ga. 767 (1a) (281 SE2d 148) (1981). Drs. Butler and Freeman, both members of the professional association which provides all anesthesia services at Piedmont Hospital, disagreed on many personal and professional matters and had a hostile relationship for a number of years prior to the incident at issue in this case. In June 1989, Dr. Freeman suffered a large civil judgment against him in Florida in an unrelated civil action arising out of the purchase of a boat. At a meeting of the professional association on June 14, 1989, Dr. Butler and several others expressed concern over the ramifications of the judgment against Dr. Freeman for the professional association. Although the association’s attorney assured them there could be no ramifications for the association, Dr. Butler said that he intended to see that Dr. Freeman never practice at Piedmont Hospital again. One doctor stated by affidavit that Dr. Butler showed him Dr. Freeman’s anesthesiology records for the week of June 12, 1989, and told him he thought they showed Dr. Freeman was “impaired.” When the affiant doctor disagreed, Dr. Butler replied, “Well, this is how we are going to get him.” Dr. Freeman was 55, and had been thinking of moving to Savannah and cutting back his working hours. Moreover, Dr. Freeman says, he was simply tired of fighting with Dr. Butler and watching him make a mess of the professional association. Thus, after a confrontation with Dr. Butler on June 16, 1989, he voluntarily resigned from the association and the medical staff of the hospital.

On July 5, 1989, Sumlin wrote a letter to the Board. After informing the Board of Dr. Freeman’s voluntary resignation as required pursuant to OCGA § 31-7-8 (a), the letter went on to state: “Dr. Freeman’s resignation was apparently, in part, due to action taken by the Chairman of his department, Dr. Walter Butler (Chairman, Department of Anesthesiology) and Dr. Frank L. Wilson, Chairman of the Department of Surgery. Dr. Butler and Dr. Wilson reported to the Credentials Committee concerns of the staff nurses and recovery room nurses regarding Dr. Freeman’s performance of his duties during several days following June 12, 1989. Dr. Freeman notified the Board of Directors of his professional association of his intent to resign prior to any formal action being taken by the Credentials Committee.” (Indentation omitted.) Dr. Freeman had applied to join the staff at Candler Hospital in Savannah, but his application for staff membership and privileges was denied in September 1989 “in view of the present controversy at Piedmont Hospital and the impending investigation by the Composite State Board of Medical Examiners.”

It is undisputed that Dr. Butler and Dr. Wilson never reported the “concerns” of nurses to the Credentials Committee as related in the letter to the Board; Dr. Butler stated in his deposition that although they intended to do so, Dr. Freeman resigned before any such report was made. Moreover, while Dr. Freeman’s letter of resignation states that he was aware that his Piedmont Hospital privileges might be suspended if he did not resign, it indicates an underlying assumption that any adverse action that might be taken by the Credentials Committee would be based on the unrelated legal judgment against him rather than any allegations of “concerns” about substandard medical practice.

Two nurses deposed that Dr. Freeman’s reporting and record-keeping practices were often lax, but that other anesthesiologists may have been similarly lax in their reporting practices and that Dr. Freeman’s record keeping was not noticeably worse the week of June 12, 1989. We cannot know whether these were the “concerns” referred to in the letter to the Board because the nurses’ communications with Dr. Butler and Dr. Butler’s communications with Sumlin were ruled privileged under OCGA § 31-7-133 (a) by the trial court.

1. Appellants first argue that the trial court erred in granting summary judgment for all three appellees on appellants’ causes of action based on defamation and intentional interference with business relations. A hospital administrator is required to report to the Board all resignations from practice in his institution, OCGA § 31-7-8 (a), and if a voluntary resignation was the result of action initiated by the institution, the report shall contain the circumstances involved therein, OCGA § 31-7-8 (c). And “[t]here shall be no civil or criminal liability on the part of, and no cause of action for damages shall arise against, any hospital administrator . . . who in good faith complies with this Code section.” OCGA § 31-7-8 (d). Even viewing the record favorably to appellants, there is no evidence of bad faith on the part of Sumlin. Accordingly summary judgment was properly granted for Sumlin based on the immunity from liability provided by OCGA § 31-7-8 (d). It follows that summary judgment for Piedmont Hospital was also proper, as appellants’ sole theory of liability against the hospital was its responsibility for the conduct of Sumlin while he was acting within the scope of his duties as hospital administrator.

Additionally, summary judgment for Dr. Butler was proper with respect to slander. While there is evidence from which it may be inferred that Dr. Butler falsely stated to Sumlin that Dr. Freeman resigned in part because he feared a Credentials Committee investigation into “concerns” of nurses regarding his performance of his duties, such a statement to another who, by reason of his organizational position, has the duty or authority to receive the information does not constitute the “publication” necessary to establish actionable slander. See Kurtz v. Williams, 188 Ga. App. 14 (3) (371 SE2d 878) (1988).

However, appellants’ cause of action against Dr. Butler for intentional interference with business relations cannot be summarily decided. For purposes of summary judgment, Dr. Butler is not entitled to the immunity from liability for peer review activities provided by OCGA §§ 31-7-132 (a) and 31-7-141 because there is evidence in the record from which a jury could infer that his conduct was motivated by malice. To establish a cause of action for tortious interference with business relations, the plaintiff must show that the defendant “ ‘(1) acted improperly and without privilege, (2) purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) for which the plaintiff suffered some financial injury.’ . . . [Cit.]” Arford v. Blalock, 199 Ga. App. 434 (13) (405 SE2d 698) (1991), aff’d sub nom. Wilensky v. Blalock, 262 Ga. 95 (414 SE2d 1) (1992). There is evidence supporting the inference that Dr. Butler communicated to Sumlin false information regarding the reasons for Dr. Freeman’s resignation, and Dr. Butler cannot rely on any claim of privilege on motion for summary judgment because there is evidence from which a jury could infer that Dr. Butler used his positional privilege “as a cloak for venting private malice.” OCGA § 51-5-9; see also OCGA §§ 31-7-132 (a); 31-7-141. Although Dr. Butler stated that he did not know exactly what would happen with this information after he communicated it to Sumlin, a jury could infer that he knew the communication would make it more difficult if not impossible for Dr. Freeman to secure staff membership and privileges in another hospital and intended this result. The communication in fact did result in the denial of staff membership and privileges at Candler Hospital in Savannah. Moreover, contrary to appellees’ assertions that appellants were not damaged because the Board’s investigation into the matter was eventually dropped and Dr. Freeman eventually joined the staff of another hospital, the record contains evidence of financial harm to appellants. We therefore conclude that the trial court erred in granting summary judgment for Dr. Butler on appellants’ claim for intentional interference with business relations. See Integrated Micro Systems v. NEC Home Electronics (USA), 174 Ga. App. 197 (3) (329 SE2d 554) (1985).

2. Appellants also contend that the trial court erred in concluding that testimony regarding which nurses voiced what “concerns” and what Dr. Butler actually communicated to Sumlin is privileged pursuant to OCGA § 31-7-133 (a). This Code section provides that “proceedings and records” of a peer review organization shall be held in confidence and shall not be subject to discovery. Appellants argue that the privilege applies only to formal hearings or meetings, and there were no formal hearings or meetings in this case. However, the purpose of the privilege is to foster the medical staff candor necessary for effective peer review, Eubanks v. Ferrier, 245 Ga. 763 (3) (267 SE2d 230) (1980), and this purpose would not be served if the privilege were limited to only what occurred in formal hearings or meetings and did not apply to medical staff comments to committee members or other intraorganizational communications leading up to the initiation of a formal hearing or meeting. Moreover, appellants’ argument was implicitly rejected in Emory Clinic v. Houston, 258 Ga. 434 (369 SE2d 913) (1988), in which the Supreme Court reversed a decision of this court adopting appellants’ position. See Emory Univ. v. Houston, 185 Ga. App. 289 (5) (364 SE2d 70) (1987). Accordingly, the trial court properly ruled that the privilege applies to all information learned through communications that “arose out of” an individual’s participation on a peer review committee, see Eubanks, 245 Ga. at 768, even if the communication occurs prior to the initiation of formal proceedings.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Andrews and Blackburn, JJ., concur. Pope, C. J., Beasley, P. J., and Smith, J., concur in part and dissent in part. Johnson, J., not participating.

Beasley, Presiding Judge,

concurring in part and dissenting in part.

1. I agree with that portion of Division 1 which holds that Dr. Butler was not entitled to summary judgment on the record thus far developed with respect to plaintiffs’ claim of intentional interference with business relations. I respectfully dissent as to the remainder of the opinion.

2. Plaintiffs enumerate as error the denial of their motion to compel discovery. They sought certain information by interrogatories to each of the defendants plus questions at the depositions of two nurses, which they were precluded from obtaining. It related to the “concerns of . . . nurses” which was referenced in the letter of hospital administrator Sumlin reporting the resignation of Dr. Freeman to the State Board. It is undisputed that these unspecified “concerns” of unidentified persons, which were the heart of the negative implications about Dr. Freeman’s professional performance conveyed to the State Board, were never brought to the attention of the hospital’s Credentials Committee or any other review organization or medical review committee. Thus, the information sought is not subject to the confidentiality privilege of either OCGA § 31-7-133 (a) or OCGA § 31-7-143. The first section protects “the proceedings and records of a review organization.” The second section protects “[t]he proceedings and records of medical review committees.” Even when there are proceedings of either type group, the two statutes provide that information available from original sources is not immune.

Decided July 15, 1993 —

Reconsiderations denied July 30, 1993 —

Jerry B. Hatcher, for appellants.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, M. B. Satcher III, for appellees.

Here plaintiffs sought the sources and subject matter of the damaging statement in the hospital administrator’s letter, which letter erroneously relates that the information was reported to the Credentials Committee. There is nothing in the law which shields these facts from disclosure to the plaintiffs, who are affected by them. Cobb County Kennestone Hosp. Auth. v. Martin, 208 Ga. App. 326 (430 SE2d 604) (1993).

Eubanks v. Ferrier, 245 Ga. 763 (267 SE2d 230) (1980), does not preclude discovery of the information sought by plaintiffs’ interrogatories and deposition questions. It upheld the nondiscoverability of records and proceedings of hospital medical review committees. It also protected those who served on the committee from questioning about any matter that arose out of their service on the committee. That situation does not obtain here.

Emory Clinic v. Houston, supra, fn. 1, also does not apply, because it merely affirms that there is to be no discovery relative to medical or peer review proceedings.

The denial of discovery was error. That being so, summary judgment should also be reversed, to await the development of evidence which can affect the provability of plaintiffs’ claims.

I am authorized to state that Chief Judge Pope and Judge Smith join in this opinion.

       Although appellants alleged several other causes of action below, their other claims were voluntarily dismissed below or abandoned on appeal.

       See an explanation of the distinction in Emory Clinic v. Houston, 258 Ga. 434, 435 (1)0, fn.1 (369 SE2d 913) (1988).


author: Beasley, Presiding Judge. Cooper, Judge,

text:
    A93A0518.
    BELL v. STROH BREWERY COMPANY.
    (434 SE2d 812)
   Beasley, Presiding Judge.

Carol Breedlove rear-ended appellant Bell while driving a car owned by appellee Stroh Brewery Company which was provided to her for business and personal use. Bell sued Breedlove and Stroh to recover for personal injuries sustained in the accident. The claim against Stroh was premised on the theory of respondeat superior.

After discovery, Stroh moved for summary judgment on the ground that Breedlove was not acting within the scope of her employment at the time of the accident. The motion was granted, and this appeal by plaintiff Bell followed.

“The general rule of respondeat superior follows: When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master. [Cits.] ‘Where a vehicle is involved in a collision, and it is shown that the automobile is owned by a person, and that the opera-of the vehicle is in the employment of that person, a presumption arises that the employee was in the scope of his employment at the time of the collision, and the burden is then on the defendant employer to show otherwise.’ [Cits.] This must be done by clear, positive and uncontradicted evidence. [Cit.]” Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777 (257 SE2d 186) (1979).

There is a question of fact with respect to whether Breedlove was within the scope of her employment when the collision occurred. It is not so clear-cut that the court can conclude as a matter of law that she was not.

Breedlove was a traveling five-state area sales manager for her employer. She had no particular work hours. Her workplace was not confined to any place. She used the company-leased car for both her employer’s business and for her own personal travel. She reimbursed the company for her personal use of the car. With respect to the business, she used it to call on customers, to drive them in it occasionally, to take materials to them, and to go to the company offices. She went to the zone office at her discretion and was on her way there to do paperwork and make calls at the time of the collision. She was performing no personal errand en route. She did not pay for any of the damage to the vehicle after the collision.

The activity in which Breedlove was engaged when the collision occurred was not personal. Whether it was within the scope of her employment, as it would be if she were traveling to a customer, is not foreclosed by the evidence any more than it was in Chappell v. Junior Achievement &c., 157 Ga. App. 41 (276 SE2d 98) (1981). Under the arrangements between her employer and Breedlove, she was on a solely business-related trip. There being evidence that the incident occurred while the employee Breedlove was engaged in pursuing the employer’s business, see Southern Grocery Stores v. Herring, 63 Ga. App. 267, 270 (11 SE2d 57) (1940), the question should be left to the jury. See also the dissent in Fred A. York, Inc. v. Moss, 176 Ga. App. 350, 352 (335 SE2d 618) (1985).

The evidence and all inferences and conclusions arising therefrom must be construed most favorably toward plaintiff as the party opposing the motion for summary judgment. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Blackburn and Smith, JJ., concur. Cooper and Andrews, JJ., dissent. Johnson, J., not participating.

Cooper, Judge,

dissenting.

I respectfully dissent as the undisputed evidence demonstrates that Breedlove was not acting within the scope of her employment at the time of the accident.

The uncontroverted evidence shows that on the morning of the accident, Breedlove was driving to appellee’s zone office to do paperwork and make phone calls. She averred in her affidavit that she was permitted to use appellee’s car for business and personal reasons; that on the morning of the accident, she was traveling between her home and appellee’s zone office; and that she did not call upon any clients or conduct any business for appellee prior to the accident. Appellee also submitted the affidavit of Joseph Franzem, Senior Vice President of Sales and Administration for appellee, who stated that Breedlove worked at the zone office to which she was headed on the morning of the accident; that she was not compensated for time spent traveling to and from work; that as an employee of appellee, she was not considered to be acting within the scope of her employment when she was traveling to and from work; that after the accident, she did not call on any custoxhers on the way to the zone office; that if Breed-love were traveling to or from a customer, she would be considered to be “on the job”; and that on the day in question, she was on her way to work but her work activities had not begun. “ ‘As a general rule, a servant in going to and from his work, even in a company car, acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held liable for an injury occasioned while the servant is en route to or from his work.’ [Cit.]” (Citations and punctuation omitted.) Viau v. Fred Dean, Inc., 203 Ga. App. 801, 802-803 (2) (418 SE2d 604) (1992). At the time of the collision, appellee had not yet begun “any tasks within ‘the scope of [her] employment and (was) ... on a purely personal venture. The additional (fact) that [she] kept the vehicle 24 hours a day . . . (is) at most (an) inconclusive (inference) which did not contradict the direct evidence. . . .’ [Cit.]” Id.; Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979). The majority’s contention that Breed-love’s workplace was not confined to any place is belied by the positive and uncontradicted statement of Franzem that Breedlove worked at the zone office, the evidence that 20 percent of Breedlove’s work did not involve traveling and the fact that Breedlove was not on a sales trip when the accident occurred but was on her way to the office from her home to do paperwork and make phone calls.

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

Rand & Ezor, Kenneth Behrman, for appellant.

Long, Weinberg, Ansley & Wheeler, Quinton S. Seay, J. Kenneth Moorman, for appellee.

Thus, the trial court did not err in granting appellee’s motion for summary judgment.


author: Smith, Judge.

text:
    A93A0542.
    COMMERCE PROPERTIES, INC. v. LINTHICUM et al.
    (434 SE2d 769)
   Smith, Judge.

Four-year-old Jonathan Linthicum was playing in the parking area in front of his parents’ apartment when he was struck by a neighbor’s car turning into a parking space. Through his next friend, the child brought this premises liability action to recover for his injuries against Commerce Properties, Inc. (CPI), as owner of the apartment complex. According to the complaint, CPI was negligent in maintaining the parking lot and adjacent areas without adequate speed breakers, and without child warning signs, pedestrian warning signs and other traffic warning and safety devices. Following discovery, CPI moved for summary judgment. Although summary judgment was denied, the trial court timely certified its order for immediate review, OCGA § 5-6-34 (b). CPI’s application for interlocutory appeal was granted by this court, and a timely notice of appeal was filed.

1. The trial court correctly denied summary judgment in favor of CPI on the asserted ground that appellant had no control over the premises. Uncertified copies of pleadings and orders from other courts of this state are not competent evidence to show that CPI, a Tennessee corporation, was an ousted mortgagor, out of possession and not in control of the premises at the time of the incident. See OCGA § 24-1-4; Rutland v. City of Dublin, 50 Ga. App. 242 (177 SE 819) (1934). Compare South America Managers v. Reeves, 220 Ga. 493, 495 (140 SE2d 201) (1965) (court may take judicial notice of its own records in the immediate case or proceeding before it).

2. The allegedly defective condition on the owner’s property involved the common area of the parking lot and not that residential living area over which the tenant had dominion. There is no assertion that CPI violated any applicable statute or housing code. Liability is therefore properly predicated upon OCGA § 51-3-1 and not upon OCGA § 44-7-14. Maloof v. Blackmon, 105 Ga. App. 207, 208 (4a) (124 SE2d 441) (1962). Linthicum’s reliance upon Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989) is misplaced.

OCGA § 51-3-1 provides: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” However, it has long been the general rule that a landlord is not liable for injuries to his tenant or to the members of the latter’s family for injuries resulting from an obvious or patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge or equal means of knowing, unless the landlord has agreed to repair the condition or has a statutory duty to repair. Roth v. Wu, 199 Ga. App. 665, 666 (1) (405 SE2d 741) (1991); Golf Club Co. v. Rothstein, 97 Ga. App. 128 (102 SE2d 654), aff’d 214 Ga. 187 (104 SE2d 83) (1958). See also Carter v. Brannon, 122 Ga. App. 812 (1) (178 SE2d 755) (1970); Thompson v. Crownover, supra at 128-129 (3, 4). The owner or occupier of land generally has “no duty to warn against obvious or patent dangers which may be [readily] observed. ...” Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140, 142 (2) (424 SE2d 85) (1992).

The alleged defective situation rendering the parking lot unsafe was the absence of sufficient speed barriers and warning signs. It is undisputed, however, that the situation was no different when the parents moved into the complex. This defect, if it was a defect, was patent. “ ‘A latent defect is one which could not have been discovered by inspection. A patent defect is a defect which could be discovered by inspection.’ . . . [Cit.]” (Emphasis in original.) Hyde v. Bryant, 114 Ga. App. 535, 536 (151 SE2d 925) (1966). Compare Motel Properties v. Miller, 206 Ga. App. 370 (425 SE2d 334) (1992) (irregular stone walkway became latent defect when unilluminated at night). The owner’s failure here to provide speed barriers, signs, or warnings was not conduct making the owner potentially liable to Linthicum’s family. “The true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted.” (Citations and punctuation omitted.) Roth v. Wu, supra at 666 (1). The evidence shows conclusively that the knowledge of the owner could not be superior. The trial court erroneously denied CPI’s motion for summary judgment.

Decided July 15, 1993 —

Reconsideration denied July 30, 1993 —

Thomas C. Blaska & Associates, Robert A. Del Bello, Susan B. McMullan, for appellant.

Tinkler & Groff, William P. Tinkler, Jr., Irwin, Bladen, Baker & Russell, R. Chris Irwin, Jennie E. Rogers, for appellees.

A child of tender years is presumed incapable of contributory negligence. Crawford v. Southern R. Co., 106 Ga. 870 (2) (33 SE 826) (1899). It is also true that any negligence on the part of the parents may not be imputed to the minor. OCGA § 51-2-1 (b). Nevertheless, the tenant’s family and his invitees stand in the shoes of the tenant. Golf Club Co. v. Rothstein, supra at 132. This case, however, turns not on any contributory negligence on the part of the child or his parents, but rather on the absence of any breach of duty on the part of the owner. Hyde v. Bryant, supra at 537.

3. Contrary to the position urged by the Linthicums, the failure of the management company to follow through with any intention to implement an unspecified “safety program” does not result in any duty to exercise a heightened standard of care. Lau’s Corp. v. Haskins, 261 Ga. 491, 494-495 (3) (405 SE2d 474) (1991).

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0549.
    HOBBS v. ARTHUR.
    (434 SE2d 748)
   Beasley, Presiding Judge.

On November 8, 1988, Hobbs and Arthur were involved in an automobile collision. On November 6, 1990, Hobbs sued “Arthur Douglas Ficklen” for negligence. Plaintiff Hobbs did not perfect service on defendant until January 5, 1991. Defendant Arthur moved to dismiss the complaint, but before any ruling was made on the motion, plaintiff voluntarily dismissed his suit.

Within six months plaintiff filed a renewal action. This time he properly named “Douglas F. Arthur” as defendant. Defendant answered and moved for summary judgment. The court granted the motion on the bases that (1) the renewal action was brought improperly inasmuch as “defendant was not sued under his proper name in the original action” and (2) the renewal action was time barred. Appellant challenges both bases.

1. As to the first basis, the principles collected and applied in Motorcycle Stuff v. Bryant, 182 Ga. App. 554 (356 SE2d 521) (1987), reject it. That is to say, the original action was merely voidable because it was in fact against the same defendant, who is a legal entity but merely misnamed. Misnomer is amendable; the original action had not been voided.

Thus the court erred in granting summary judgment on the ground that defendant was not a defendant in the first suit so that the renewal statute did not apply. It did, the misnomer notwithstanding.

Despite this error, we must decide if the independent second reason was erroneous, because a summary judgment which is right for any reason will be affirmed. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61) (1991). So the issue is whether the independent second reason for summary judgment was valid.

2. As to the second basis, again the original suit was merely voidable and had not been dismissed by the court for expiration of the statute of limitation due to laches in service, preserving plaintiff’s right to renew under OCGA § 9-2-61. Fine v. Higgins Foundry &c. Co., 201 Ga. App. 275, 276 (1) (a) (410 SE2d 821) (1991) (physical precedent only). But that does not end the inquiry.

The trial court ruled that defendant was entitled to summary judgment because “plaintiff’s claim is barred by the two-year statute of limitations for personal injury.”

The two-year statute of limitation had indeed run, on the face of it. The collision occurred on November 8, 1988, and the renewal suit was filed on October 22, 1991. However, it stood “on the same footing, as to limitation, with the original case.” Ga. L. 1985, p. 1446, referring to OCGA § 9-2-61 (a). In the original case, service was perfected on defendant, albeit beyond the five days prescribed by OCGA § 9-11-4 (c) and after the statute of limitation had run, so it was voidable unless due diligence was shown. Smith v. Griggs, 164 Ga. App. 15, 17 (2) (296 SE2d 87) (1982), and cases cited therein. “The plaintiff has the burden of showing lack of fault.” Smith, supra at 18.

Whether there is due diligence is a matter for the trial court to determine in its discretion, upon a consideration of the facts gleaned from the evidence presented. Bible v. Hughes, 146 Ga. App. 769, 770 (247 SE2d 584) (1978).

The evidence in this case was conflicting. Defendant’s affidavit states and shows, for example, that his name on the accident report was correct (except the officer wrote “Douglas Fickler Arthur” instead of “Douglas Ficklen Arthur”), his driver’s license number was correct on the report and was issued in his correct name, and the name of his employer and his work telephone number on the report were correct and did not change before January 5, 1991, when he was finally served by plaintiff’s investigator.

On the other hand, the investigator’s affidavit states that defendant’s driver’s license, produced to him at the time he served defendant on January 5,1991, bore the name “Arthur Douglas Ficklen”; that defendant said “[t]here is no more Arthur Douglas Ficklen”; and that he said his attorney advised him not to accept any papers sought to be served on him.

The trial court apparently resolved the conflicts in favor of the defendant, who did not bear the burden of proof, although it made no express finding on the issue of diligence. “[I]n the absence of a contrary showing, the trial court will be presumed to have followed the law. [Cits.]” Jones v. Cropps, 197 Ga. App. 313, 315 (398 SE2d 295) (1990). Plaintiff not having shown that he exercised due diligence as a matter of law, we are bound by such a finding. It leads ineluctably to the conclusion that the statute of limitation was not tolled and, as the trial court ruled, it barred the renewal action.

We do not agree with the view taken in Division (1) (b) of the non-precedential Fine case, supra at 277 (1) (b), that promptness of service in the renewed action is measured only from the institution of the renewed suit. That allows the dilatory plaintiff to escape his or her lack of diligence in timely perfecting service and compels the defendant to face a claim which would be stale but for the narrow grace of the renewal statute.

Nor do we construe the renewal statute as being intended by the legislature to allow a party guilty of laches to avoid the consequences by simply dismissing the suit and refiling it whenever a defendant raises the issue. Such would obliterate the requirement of due diligence and would allow lawsuits to be filed just within the statute of limitation and then suffer inexcusable delay in notifying defendant by timely service, without adverse consequences to the guilty party.

The Constitution requires that the rules of the court “provide for the speedy, efficient, and inexpensive resolution of disputes.” 1983 Ga. Const., Art. VI, Sec. IX, Par. I. That mandate is not limited to court rules, however. The legislature has expressly directed that the Civil Practice Act “shall be construed to secure the just, speedy, and inexpensive determination of every action.” OCGA § 9-11-1. No less can be said of the renewal statute. To construe it otherwise, so as to accommodate the elongation of disputes such as this 1988 automobile collision case which defendant was served with in this suit on October 28, 1991, is contrary to the expressed goals as well as sound administration.

The diligence in serving a defendant with notice of the lawsuit must be measured from the time the statute would otherwise have run, because up to that time, no diligence need be shown. But beyond that time, good reason must appear for tolling the statute. This is in keeping with the principle that “ ‘[w]here the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back . . ., depends on the length of time and the diligence used by the plaintiff.’ ” Scoggins v. State Farm &c. Ins. Co., 156 Ga. App. 408, 410 (274 SE2d 775) (1980).

In this case, plaintiff is asking, first, that it be tolled from the date the original action was filed (November 6, 1990) because service in that suit, which was beyond the statute of limitation but was not ruled dilatory in that suit, was perfected and related back to the filing within the statute of limitation. Plaintiff is asking, second, that the timely renewed action further toll the statute because, from the date of its filing to service only a short period elapsed. But that ignores the long period of no service at the ordinary expiration of the time limitation. The defense of laches rightly challenges the diligence of plaintiff from the time he became obligated to exercise it, i.e., November 8, 1990.

In Wells v. Faust, 206 Ga. App. 818 (426 SE2d 655) (1992), we correctly ruled that the trial court erred in granting summary judgment on the ground that the original suit was not a valid suit. We did not decide whether service in the renewed suit was affected by laches. That remained to be considered by the trial court on remand. We did not state what period of time was to be examined. Instead, we cited Collier v. Marsh, 203 Ga. App. 322, 323 (2) (416 SE2d 849) (1992), and Jones v. Cropps, supra at 314 (2), which measured diligence only within the six-month renewal period. But they, in effect, create an additional and consecutive statute of limitation which ignores, the two-year statutory limitation on personal injury claims and the failure to perfect service diligently within a reasonable time after its expiration. They, and any other cases which follow this rule, are overruled to that extent.

3. Appellant claims that the statute of limitation was tolled by his mental incapacity. His authority is OCGA §§ 9-3-90 and 9-3-91.

This was not raised until August 6, 1992, when by amendment to the complaint appellant alleged: “With the exception of brief lucid intervals, from November 8, 1988, through the present time, Plaintiff has been so mentally and physically incompetent as to render him incapacitated to manage his personal affairs.” The amendment was filed one day before the hearing on the motion for summary judgment.

The suit had been pending since October 22, 1991, and the original action was filed nearly a year earlier than that, on October 6, 1990. Such incapacity, which allegedly existed since the date of the collision in 1988, was not mentioned in all of the activity in this litigation until the eleventh hour. Whatever incapacity plaintiff suffered, it did not prevent him from filing his lawsuit within the period of limitation or refiling it within the time for renewal.

Decided July 14, 1993 —

Reconsideration denied July 30, 1993 —

Callaway, Neville & Brinson, William J. Neville, Jr., for appellant.

Goodman, McGuffey, Aust & Lindsey, Constance C. Russell, Leigh M. Wilco, for appellee.

The trial court did not mention the allegation in the summary judgment order and may well have regarded it as frivolous or abandoned. The record does not show that it was pursued at oral argument, there being no transcript of the same.

First, OCGA § 9-3-91 is not relevant because plaintiff claims incapacity from the date the cause of action accrued, not disability after that time, which latter eventuality is addressed by that statute. Only OCGA § 9-3-90 ostensibly applies.

The unmet allegation does not save plaintiff from adverse summary judgment. Any such incapacity did not affect the service of process, as is abundantly evident from the affidavits of plaintiff’s counsel regarding efforts to serve defendant. Plaintiff’s problematic delay was not in filing the complaint, which OCGA § 9-3-90 addresses, but rather in serving defendant. Compare Chapman v. Burks, 183 Ga. App. 103 (357 SE2d 832) (1987).

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Cooper, Andrews, Blackburn and Smith, JJ., concur. Johnson, J., not participating.