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

text:
    A96A0745.
    CAREY v. W. R. GRACE & COMPANY, CONN.
    (472 SE2d 524)
   Birdsong, Presiding Judge.

Appellant/plaintiff Ransom D. Carey, Sr. appeals from the order of the superior court granting summary judgment to appellee/defendant W. R. Grace & Company, Conn. (Grace Company).

This is a negligence suit for damages. Appellant, a truck driver, drove to appellee Grace Company’s premises to pick up a load of drums to be transported for appellee. Upon completion of the loading, appellant was requested by a Grace Company employee (employee) to assist in moving a heavy steel dock plate, which had been used as a ramp between the dock and the truck, off the back of appellant’s truck so it could exit the premises. It was averred in the complaint that the employee had superior knowledge of the conditions of the loading dock area, that he supervised and directed appellant as to his direction and movement (as the latter was unable to turn to see behind him as he was holding the dock plate), and that the employee did negligently direct appellant into a wooden pallet or pallets causing him to fall backwards and to be struck by the dock plate. Appellant fell over either a 48-inch by 48-inch by 2-inch or 3-inch single pallet or a pair of stacked pallets. Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). “In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843).

2. Appellant testified by way of deposition that as he watched his truck being loaded, “the pallets were being left at the same position, the same place [as] the other driver was bringing them”; so there was one large stack of pallets. Appellant subsequently testified that he understood there was a specific place designated for pallets, and that “all the other pallets that we were working with were moved to a specific area,” but the pallet he tripped on had not been moved from the walkway to the designated area thereby causing him to fall. Appellant’s testimony is inconsistent regarding whether, within his knowledge, the other pallets had been moved to a designated area or just left in a stack in the immediate vicinity of the loading operation. As no reasonable explanation has been offered for this inconsistency, we will apply the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) to the inconsistent evidence. Compare Papera v. TOC Retail, 218 Ga. App. 777 (2) (463 SE2d 61).

3. Appellant gave uncontroverted deposition testimony that he watched the Grace Company employee load barrels from pallets onto the truck; the employee would pick up a barrel with his forklift, drive the forklift into the truck and unload the barrel. After the barrels were loaded, the pallets were left in their original position, resulting in one stack of pallets. The employee parked his vehicle and asked if appellant would help him move the dock plate, and appellant agreed to do so. Appellant grasped an end of the dock plate and asked, “Where do you want to go with it?” The employee replied, “Let’s put it over behind you” or “Let’s go behind you there.” Appellant initially “just stood to wait upon [the employee] . . . and [appellant] totally relied upon whatever [the employee] wanted to do because [appellant] didn’t know what he wanted to do.” The employee chose the route to be taken with the dock plate. Appellant further testified he totally relied upon the employee because he did not know where to go, what to do, how to do it, where the safety zones were located on the premises, or where he was or was not supposed to walk. He “assumed” the employee “knew what he wanted to do” and “had appraised the entire area and [determined] everything was safe.” However in a handwritten statement of appellant made prior to and attached to his deposition as Defense Exhibit No. 3, appellant stated that he “fell backwards and [the] dock plate fell on top of me before Jim [the employee] or myself realized they [the two stacked pallets] were setting on the platform.” Appellant looked behind him before moving backwards “to see if there was a clearance, to see if nothing was there in [his] path”; he “obviously looked around to make sure [he] wouldn’t rim into anything.” He looked over his right shoulder and saw nothing in view; he did not look over his left shoulder. Appellant then took two or three steps backwards and tripped on either a single pallet or, more likely, two stacked pallets. After falling appellant could see the pallet sitting in plain view. Although he was unaware when this pallet was placed in the work area, it was placed in the work area after he had parked his truck. The pallet was approximately two or three feet from where appellant was standing when he watched his truck being loaded; there was no other loading activity occurring in the area at the time. Appellant admitted that if a need had existed for him to turn around and look in the direction of the pallet before he moved backwards, he would have been able to see it.

During the course of picking up the dock plate and moving backwards with it, appellant and the employee were engaged in a brief, voluntary conversation in which appellant asked “questions about the kinds of material that [the employee] had placed on the trailer and what would be the types of placards that would [be needed] to accommodate this load.” All of this was happening during the movement of the dock plate; the employee was talking to appellant and vice versa; it was just spontaneous. Immediately after the incident appellant never said anything to the employee to the effect of “why weren’t you watching out for me.” At no time prior to the incident had the employee “said that he would keep an eye out for any obstructions behind” appellant, or “don’t look behind you.” Appellant did look behind himself before moving.

(a) By appellant’s own testimony the pallets were visible in the loading area, and no evidence exists from which a reasonable inference could be drawn that the pallets had been concealed in any manner. “The pallets clearly were visible and posed no latent danger. ‘The duty to warn extends only to a latent danger — not to an open or obvious one.’ ” Lee v. Peacock, 199 Ga. App. 192, 194 (3) (404 SE2d 473). Further, appellant “ ‘was under a duty to use (his) sight to discover any defects or dangers.’ ” Id. at 195. Although appellant, by his own written statement, has acknowledged that appellee’s employee was not aware of the location of the pallet until appellant fell, we need not reach that issue. Suffice it to say, the pallet was open and obvious and appellee had no duty to warn.

Further, appellant admitted that if he had perceived a need to turn around and look behind him before the incident, he would have seen the pallet or pallets behind him. Yet, appellant also testified that, before proceeding backwards, he “obviously looked around to make sure [he] wouldn’t run into anything.” Assuming without deciding that this testimony is not in conflict with appellant’s testimony that he was relying entirely upon the employee for direction, it clearly demonstrates appellant’s awareness of the need to look out for his own safety before proceeding. Yet, appellant failed to turn around and look at his path before lifting the dock plate and proceeding backwards. “Because [appellant]' did not exercise due care for [his] own safety we hold . . . that ‘this is a plain, palpable, and indisputable case not calling for resolution by a jury.’ ” Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 338 (449 SE2d 613); compare Vermont American Corp. v. Day, 217 Ga. App. 65 (456 SE2d 618).

(b) Appellant’s reliance on Pique v. Lee, 218 Ga. App. 357 (461 SE2d 302) is misplaced as the facts of this case are distinguishable; the beauty chair in Pique had a defect not open and obvious in nature, that is, the locking device of the hair salon chair was not activated, notwithstanding a contrary business custom, before the patron was ushered to the chair by a salon employee. Likewise distinguishable is Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166 (450 SE2d 275) where the peril caused by the painted surface was not discoverable by the plaintiff. The pallets in the case at bar were open and obvious.

(c) For the reasons addressed in Division 3 (a), to the extent appellant/plaintiff’s complaint averred that injury was sustained due to the active negligence (see generally Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193); Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810)) of appellee’s employee in failing to safely direct appellant’s backward movement, we also are satisfied that the trial court did not err in granting summary judgment to appellee. Additionally, any evidence offered by appellant to establish the employee had superior knowledge of the danger posed by the pallet would be inconsistent with appellant’s written statement expressly asserting that at the time of his fall neither he nor the employee was aware the pallets were on the loading platform.

Judgment affirmed.

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

Beasley, Chief Judge,

dissenting.

I respectfully dissent. There are issues of fact to be decided by a jury with respect to whether, for one thing, the premises owner exercised ordinary care, as required by OCGA § 51-3-1, in keeping the premises safe for the person whose movement its employee directed and controlled at the time he fell. The duty is owed to workers who have been hired to work on the premises, as plaintiff was. Howell v. Farmers Peanut Market of Sowega, 212 Ga. App. 610, 611 (1) (442 SE2d 904) (1994).

The primary legal issue on the motion for summary judgment is whether the evidence, construed most favorably for plaintiff Carey, demonstrates as a matter of law that he did not have knowledge superior or equal to that of defendant’s employee Broomall of the pallet or pallets on which he fell. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (3) (422 SE2d 305) (1992), citing Telligman v. Monumental Properties, 161 Ga. App. 13 (288 SE2d 846) (1982).

This case differs from that of the usual slip/trip and fall case in at least two significant factors: plaintiff was moving backward, not forward, and his movement was directed and controlled at the time by defendant’s employee, who had the other end of the heavy dock plate. The relative knowledge and opportunity of Carey and Broomall does not establish as a matter of law that Carey’s was equal to or superior to Broomall’s. The “plain view” cases cited in the majority opinion involve situations where plaintiff was walking forward and thus could be expected to watch as he walked. See, e.g., Lee v. Peacock, 199 Ga. App. 192 (404 SE2d 473) (1991); Edwards v. Wal-Mart Stores, 215 Ga. App. 336 (449 SE2d 613) (1994). Even where plaintiff is facing forward, “The mere fact that [plaintiff] was not looking ahead does not demand a finding that [plaintiff] was not exercising ordinary care for [his] own safety. Looking continuously, without intermission, for defects in a floor is not required in all circumstances. (Cits.) What is a ‘reasonable lookout’ depends on all the circumstances at the time and place. (Cit.) [Cits.]” (Punctuation omitted.) Food Giant v. Cooke, 186 Ga. App. 253, 257 (2) (366 SE2d 781) (1988).

During the loading process, there was nothing to put Carey on notice to become particularly aware of where pallets were or had been put, as he could not have anticipated that he would be asked for gratuitous help in moving a heavy item. Broomall, on the other hand, was already familiar with the premises and with the placement of pallets during the course of operations. When Broomall asked for Carey’s help and Carey obliged, Broomall supervised the relocation process and took over the direction of Carey’s movement, obviously with knowledge that Carey could not see where he was going but that Broomall could because Broomall directed his movement backward. He, not Carey, controlled where Carey walked at that moment, because not only did Carey rely on him for guidance, but Broomall was steering the movement of them both as they grasped the object.

Carey’s description of the incident, in which he testified that neither one of them “realized” the pallets were on the platform, creating a hazard in the way chosen by Broomall, does not relieve defendant of superior knowledge; Carey does not say that Broomall’s lack of realization was without fault. That Carey may have determined after the incident that Broomall was unaware Carey was moving towards the two pallets has no bearing on whether Carey relied on Broomall at the time to guide him along a safe path. Whether Broomall should have realized the pallets were there, since he had undertaken the responsibility to direct the safe movement of another person who could not see where he was walking as he walked, is a question of the exercise of ordinary care, for the jury.

Broomall was completely familiar with the loading dock and the procedures and knew that Carey, a visitor, was not; he knew or should have known that Carey was of necessity following his lead because of the position he put Carey in; he knew, and he knew Carey did not know, where the dock plate was to be put; and it is reasonably inferable that he or another Grace Company employee had placed the hazard where it was. It was open and obvious to him but not to Carey, whose eyes were forward, not backward. Broomall put Carey in a position of peril by prevailing upon him to help, and to do so by walking backward so he could not see where he was going. Carey brought forth evidence that defendant’s knowledge of the peril was superior, at least constructively, so as to avoid summary judgment. Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993).

He also presented evidence that he was exercising ordinary care for his own safety in this injury-producing maneuver. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). He did look behind him before they began moving the plate; whether looking over only his right shoulder and not his left constitutes a failure of ordinary care is a jury question; we cannot say as a matter of law that his precautions were deficient, or that his reliance on the path selector was unjustified, or that his failure to see the specific hazard resulted from his own negligence. See Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994), and Sacker v. Perry Realty Svcs., 217 Ga. App. 300 (457 SE2d 208) (1995), as to knowledge of specific hazard. Whether under OCGA § 51-11-7 he failed to exercise reasonable care to avoid the consequences of defendant’s negligent steerage, assuming it was such, is a jury question. Chotas v. J. P. Allen & Co., 113 Ga. App. 731, 733-734 (149 SE2d 527) (1966). Broomall, not he, had control of where they headed; he was the captain of the ship.

In Division 2 of the majority opinion, the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), is applied to two portions of Carey’s deposition testimony. He first says that as he watched his truck being loaded, “the pallets were being left at the same position, the same place [as] the other driver was bringing them”; so there was one large stack of pallets. Carey subsequently testified that he understood there was a specific place designated for pallets, and that “all the other pallets that we were working with were moved to a specific area,” but the pallet he tripped on had not been moved from the walkway to the designated area thereby causing him to fall. This testimony is not inconsistent. In both instances, Carey says the pallets are stacked in one place. In the later testimony, he just adds that the one he tripped over had not been stacked with the others.

Even if the testimony were inconsistent, it is not dispositive. Both parties acknowledge that Carey fell backwards over one or two pallets that had not been stacked with the others, and “only in cases where there is a direct contradiction in the testimony of the respondent as to a material issue of fact will that party’s unfavorable testimony be taken against him.” Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 714 (279 SE2d 210) (1981).

This case, like Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810) (1992), does not involve merely a pre-existing defect on the premises but rather the active performance of acts and omissions which occurred after he arrived there. As recognized in that case, the Supreme Court in Trammell v. Baird, 262 Ga. 124, 126 (413 SE2d 445) (1992), reaffirmed a legal distinction, in premises liability cases, between those where the alleged negligence arises from static or passive conditions and those where active negligence by act or omission is the basis. The cases involving pre-existing premises defects are not controlling. Wade, supra at 266. See also Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994) (steering plaintiff to a place where pallets were left on the platform is not lack of negligence per se).

As to plaintiff’s reliance on the steering undertaken by defendant’s employee Broomall, the case of Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832 (331 SE2d 899) (1985), is analogous. It, too, involved reliance by plaintiff on the direction of another person, and we reversed summary judgment to defendant. We applied the standard view of the function of the jury versus a conclusive application of legal principles, saying: “Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25). Added to that list are related issues of assumption of risk, lack of ordinary care for one’s safety, lack of ordinary care in failing to foresee a condition which could cause injury [cit.], and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. [Cit.] Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication. [Cit.]” (Punctuation omitted.) Id. at 836.

The plaintiff in that case was entitled to a jury trial, and so is Carey. Here we have not only the duty of a premises owner, but also the duty of one who is the agent of the premises owner who undertakes to direct the movements of a business invitee to the premises. Even where facts in a case “ ‘are uncontradicted and uncontroverted, where they are such that there is room for difference of opinion between reasonable [persons] as to whether or not negligence should be inferred, the right to draw the inference is peculiarly within the exclusive province of the jury. [Cits.]’ [Cit.]” Yeager v. Jacobs, 111 Ga. App. 358 (2) (141 SE2d 837) (1965). As in Lipham, supra at 866, so here, the question of whether Broomall acted with ordinary care is one for the jury. The case, in its present evidentiary form, does not warrant summary judgment.

Decided June 17, 1996

Fink & Travis, David A. Fink, for appellant.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, James R. Doyle II, for appellee.

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


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A0548.
    HICKS v. THE STATE.
    (472 SE2d 474)
   Smith, Judge.

Keith J. Hicks was charged by accusation with driving under the influence, OCGA § 40-6-391 (a), and speeding, OCGA § 40-6-181. He appeals from the judgment of conviction and sentence.

1. Hicks asserts the general grounds. The arresting police officer testified he was on patrol when he observed Hicks’s vehicle traveling at a high rate of speed, paced his vehicle for one-quarter to one-half mile, and determined the vehicle was traveling at a speed of 50-52 mph in a 35-mph zone. After the officer stopped Hicks, he observed him fumbling with his identification, detected an odor of alcohol on his breath and clothing, and observed that Hicks’s eyes were red and glassy and his speech slurred. The officer then administered several field sobriety tests, all of which Hicks failed. Moreover, Hicks admitted at trial that he consumed four beers that evening, and acknowledged, “I was a fraction less safer than a sober driver.”

Hicks and his attorney measured the distance over which the officer testified he paced Hicks’s vehicle, and Hicks testified the distance was shorter than as testified to by the officer. From this, he argues that the officer could not have paced his speed as he testified he did, that his testimony was “physically impossible,” and that it should be rejected as a matter of law. We do not agree.

“As for defendant’s contention that the state’s evidence was incredible, impossible and inherently improbable, while we recognize that where testimony is given which is irreconcilable with the great physical laws of the universe, such a conflict completely destroys the testimony, and this court can properly say that there is no testimony; this is not the case here. We find nothing inherently impossible in the police officer’s testimony so as to make it irreconcilable with natural physical laws.” (Citation and punctuation omitted.) Howell v. State, 179 Ga. App. 632, 633 (1) (347 SE2d 358) (1986). While Hicks’s testimony as to speed and distance varied from that of the officer, discrepancies in testimony as to speed and distance, as a possible discrediting factor, go only to the weight and credibility to be given the officer’s testimony. The jury in resolving disputed issues of fact was authorized to believe parts of the officer’s testimony and reject other parts. Id. When viewed in the light most favorable to the verdict, ample evidence was presented to enable a rational trier of fact to find that Hicks was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hicks also complains that the trial court improperly granted the State’s motion for continuance based on the absence of a prosecution witness. Hicks contends the State’s failure to comply with all the requirements of OCGA § 17-8-25, specifically the failure to show the witness was under subpoena, “places the motion outside the realm of the Court’s discretion to grant it.” We do not agree.

The trial court had authority to grant a continuance under its general power to serve the principles of justice. “The grant or denial of a motion for continuance is within the sole discretion of the trial judge, and absent a showing that such discretion was abused, it will not be controlled. OCGA § 17-8-33 (a); [cit.]. . . . This court has held that the code provisions relating to continuances address themselves ‘to that broad discretion which looks primarily to the attainment of justice under the special facts of the particular case, — a discretion unfettered by the exact letter of the law.’ [Cit.]” Campbell v. State, 181 Ga. App. 790, 791 (354 SE2d 10) (1987). OCGA § 17-8-33 (a) provides that when “the absence of a material witness or the principles of justice should require a continuance of the case, . . . the court shall allow a continuance until the next term of the court.”

Moreover, this Court has typically applied the strict terms of the continuance statutes in reviewing the denial, rather than the grant, of a motion for continuance in a criminal prosecution. “Each of the named requirements [of OCGA § 17-8-25] must be met before the appellate court will review the trial court’s discretion in denying the motion for continuance based upon the absence of a witness. [Cits.] The trial court has discretion in determining whether to grant a continuance for absence of a witness, and that discretion is not abused unless all of the requisites of OCGA § 17-8-25 are shown and the trial court still denied a continuance. [Cits.]” (Emphasis supplied.) Luttrell v. State, 176 Ga. App. 508 (3) (336 SE2d 369) (1985). See also Dorsey v. State, 203 Ga. App. 397, 399 (1) (416 SE2d 879) (1992) (requirements of OCGA § 17-8-25 must be met before this Court may review denial of motion for continuance); Garrett v. State, 202 Ga. App. 463 (414 SE2d 693) (1992).

“It was pointed out in Hobbs v. State, 8 Ga. App. 53, 54 (68 SE 515) [(1910)] that continuances in criminal cases are not governed by the strict rules of civil cases and that the motion should be granted whenever the principles of justice appear to demand a postponement.” (Citations and punctuation omitted.) Gallimore v. State, 166 Ga. App. 601 (305 SE2d 164) (1983). The absence of a material witness for the State is a reasonable showing in support of a continuance within the meaning of OCGA § 17-8-21, and in such circumstances, the trial court does not abuse its discretion in granting the State’s motion for a continuance. Minicucci v. State, 214 Ga. App. 468, 469 (2) (448 SE2d 34) (1994). In Minicucci, this Court held that the trial court did not abuse its discretion in granting the State’s motion for continuance where at least one of the absent witnesses had been subpoenaed. It does not necessarily follow, however, that the converse is true. A trial court does not abuse its discretion as a matter of law in granting a continuance in the absence of a subpoena.

In Waters v. State, 85 Ga. App. 79, 81-82 (68 SE2d 233) (1951), the defendant moved for a continuance on the ground of absence of a witness, who was ill and in the hospital. The trial court denied the continuance, the defendant appealed, and this Court reversed. On appeal, the State asserted the continuance was properly denied because the defendant had failed to subpoena the witness. This Court looked to the language of Ga. Code Ann. § 27-2002 (identical to that of OCGA § 17-8-33 (a)) providing for a continuance when “the absence of a material witness or the principles of justice should require a postponement” in preference to the language of former Ga. Code Ann. § 81-1410 requiring that the witness have been placed under subpoena. This Court also noted the language of Hobbs v. State, supra, that failure to subpoena a witness is not necessarily fatal “ ‘[i]f it appears that the defendant has done all that was within his power to procure the attendance of a witness, whose attendance could probably be later secured, even though he might not have subpoenaed him.’ ” (Emphasis supplied.) Waters, supra at 82. Noting that “the failure to hand the subpoena to the witness personally appears to have had nothing to do with the absence of the witness,” id. at 81, because he was in the hospital and could not attend the trial in any event, this Court reversed the trial court’s denial of the defendant’s motion for a continuance. Under the reasoning of Waters, a trial court should likewise have sufficient discretion under OCGA § 17-8-33 to grant a motion for continuance, whether by the State or the defendant, even if a witness was not placed under subpoena.

In this case, the police officer witness was not under subpoena but had been served with a document styled “Notice of Trial,” a method customarily employed by the local police department and solicitor’s office. The failure to subpoena the witness, however, had nothing to do with his absence. It is undisputed that he was involved in a shooting and physical struggle with a suspect on the night before the State made its motion for continuance, that he was placed on administrative leave, which prevented him from testifying as a matter of police department policy, and that he was expected to be under the care of a mental health professional “after his close call” on the day of trial. Construing the requirements of OCGA § 17-8-25 in pari materia with OCGA § 17-8-33 and prior decisions, which do not appear to apply the strict terms of the continuance statutes in reviewing the grant of a continuance, we cannot conclude that the trial court’s grant of the State’s motion for a continuance under these highly unusual circumstances constituted an abuse of discretion.

We note, however, that the better practice is to subpoena witnesses in accordance with the Code, rather than to rely upon the trial court’s general discretionary power to grant a continuance. Had the trial court denied the State’s motion, there could have been no review of that decision because of the State’s failure to comply with the requirements of OCGA § 17-8-25. See OCGA § 5-7-1.

3. Hicks contends the trial court erred in finding probable cause for the officer to stop his vehicle, that his motion to suppress should have been granted, and that this “invalidated] all subsequent proceedings.” Even assuming that probable cause, rather than articulable suspicion, was necessary, the decision to stop Hicks was based on a traffic violation observed by the officer. “The stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense. Thus, the trial court did not err in denying defendant’s motion to suppress.” (Citations and punctuation omitted.) Jones v. State, 200 Ga. App. 666 (1) (409 SE2d 251) (1991) (appellant stopped for traffic offense and arrested for DUI). While failure to issue a citation or even an acquittal on an underlying traffic offense is “ ‘of no consequence’ ” in determining the officer’s probable cause to stop the vehicle, Allenbrand v. State, 217 Ga. App. 609, 610 (1) (458 SE2d 382) (1995), in this case Hicks was both cited for and convicted of the traffic offense.

Decided June 4, 1996

Reconsideration denied June 18, 1996

W. Jason Uchitel, for appellant.

Ralph T. Bowden, Jr., Solicitor, Amanda F. Sandifer, Noah H. Pines, Walter C. Howard, Assistant Solicitors, for appellee.

4. Finally, Hicks contends the trial court erred in refusing to give two requested charges to the jury. As Hicks acknowledges, both requests set forth the “two theories” charge, “that is, that where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. However, this court has held that this statement of the law does not accurately state the principle addressed and should never be given. [Cit.]” Matthews v. State, 214 Ga. App. 104, 105 (2) (446 SE2d 790) (1994). To the extent the requested charges dealt with other issues, those portions of the charge were adequately covered in the trial court’s charges on circumstantial evidence, the presumption of innocence, and the State’s burden of proof.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       We do not consider the possible effect of a demand for trial under OCGA § 17-7-170, as the record shows no such demand and the parties have not raised this issue.

       “In all cases in which the defendant cannot, according to law, demand a trial, a continuance shall not be granted to the state, except upon a reasonable showing therefor.”

        Waters predated the Civil Practice Act and relied on Ga. Code Ann. § 27-2002, the predecessor to OCGA § 17-8-33, in preference to Ga. Code Ann. § 81-1410, the predecessor to both OCGA § 17-8-25 and OCGA § 9-10-160, characterizing the latter as applying “especially to civil cases.” Id. at 82. The language of that section, however, was also embodied in the criminal codes, see Penal Code 1895, § 962; Penal Code 1910, § 987, and decisions before and after Waters apply it to criminal prosecutions. See, e.g., Davis v. State, 153 Ga. App. 433 (265 SE2d 351) (1980); Nobles v. State, 71 Ga. App. 802 (1) (32 SE2d 545) (1944).


author: Judge Harold R. Banke.

text:
    A96A0555.
    FIRST BORN CHURCH OF THE LIVING GOD, INC. et al. v. BANK SOUTH, N.A. et al.
    (472 SE2d 469)
   Judge Harold R. Banke.

Bank South (“the Bank”) instituted an interpleader and declaratory action to protect itself from the potential of multiple liability concerning a dispute as to who was authorized to control certain Bank accounts belonging to First Born Church of the Living God, Inc. (“the Church”). The Bank’s action required the named parties to interplead and set forth their claims and asked the trial court to determine who had the legal authority to control the Church’s corporate bank accounts. The Church and Senior Bishop Albert Hill appeal the trial court’s determination.

The Church is a non-profit corporation governed by the laws of the State of Georgia, its own articles of incorporation, and its constitution. The constitution states that it is the supreme law of the Church. The executive board (“Board”) of the Church met on November 28, 1994, in response to an emergency situation. At the meeting, the Board, by at least a two-thirds majority, replaced Senior Bishop Albert Hill and designated Bishop W. L. Johnson as the new Senior Bishop. The Board resolved that the business and affairs of the Church be managed by the Board together with the new Senior Bishop. The Board also modified its bank resolution and stated that any checks or withdrawals written on any interest-bearing accounts “should not be honored without the approval of Bishop W. L. Johnson.” After conducting a hearing, the trial court determined that the Board was authorized to hold the November 28, 1994 meeting, and held that “assuming said meeting was properly conducted, .any action taken at such meeting, pursuant to said Constitution, is valid and binding.” Held:

The Church’s sole enumeration of error is that the trial court erred in directing the Bank to administer the accounts in accordance with the instructions of the Board because the trial court assumed without determining that the proceedings of the Board were procedurally correct. We agree. At the outset, we note that the resolution of this dispute does not necessitate an impermissible intrusion or excessive entanglement into ecclesiastical matters. See, e.g., McDonnell v. Episcopal Diocese of Ga., 191 Ga. App. 174 (381 SE2d 126) (1989). The sole issue is not of a religious nature but is secular — whether the Board at its emergency meeting duly complied with the provisions of the written constitution. This Court’s involvement does not call for the resolution of any ecclesiastical or theological dispute. See Jones v. Wolf, 443 U. S. 595, 599-602 (99 SC 3020, 61 LE2d 775) (1979); Gervin v. Reddick, 246 Ga. 56, 57 (2) (268 SE2d 657) (1980). The Church is an incorporated non-hierarchical church and its constitution controls its decisions and local Church property. See Jones v. Wolf, 244 Ga. 388 (260 SE2d 84) (1979); Crocker v. Stevens, 210 Ga. App. 231, 233 (2) (435 SE2d 690) (1993). The underlying dispute involves the control of Church property. See Gervin, 246 Ga. at 57. At issue is whether the Board followed the requisite procedures when it changed the administration of Church accounts with the Bank.

Pursuant to Article 34 (C) (3) of the Church constitution, the Board was authorized to hold the November 28, 1994 meeting. However, according to Article 34 (D), “Legislative Procedures,” “Any legislation passed by the Board shall then be presented to the Senior Bishop for his approval and signature. If the legislation or any part of it fails to meet his approval, it is his [the Senior Bishop’s] privilege to veto the same and send it back to the Board, along with his reasons for the veto. The legislation must then be revoted upon by the full Board, and must be passed by a two-thirds (/s) majority before it can become law.” Id. This constitutional procedure is analogous to the presentment clause, Art. I, Sec. VII of the United States Constitution. The evidence indisputably shows that the Board failed to follow the procedural requirements of the Church constitution when it transacted its business because no legislation was ever presented to Senior Bishop Hill for his approval and signature. According to the minutes titled “Executive Board Special Session,” the Board anticipated that Senior Bishop Hill, who was absent, would veto several measures so the Board repassed each one by a two-thirds or greater majority vote. No authority has been offered and no exceptions in the constitution have been cited which would authorize the Board to deviate from the binding written legislative procedures required by the Church’s constitution. Although Article 34 (A) states that an action by the Board “becomes effective immediately upon passage, unless otherwise stated in the legislation,” this article does not state that it supersedes the express requirements controlling the enactment of legislation in Article 34 (D). The evidence further shows that the Board failed to comply with the provisions of Article 34 (F) with respect to the removal of Senior Bishop Hill. Articles 34 (F) and 39 (F) specify the procedures for removal from office. Article 34 (F) of the constitution of the Church entitled Senior Bishop Hill to a written copy of any charge(s), an opportunity to prepare his defense, the right to obtain counsel, and a hearing before the Board. The Board failed to follow any of these requirements. See Reddick v. Jones, 251 Ga. 195, 196 (1) (304 SE2d 389) (1983) (board of directors of church could not violate the corporate bylaws which reserved the right to terminate pastor’s employment to general membership not board of directors).

Although the Board properly acted within its authority to initiate the emergency session and had the apparent authority to act in furtherance of the affairs of the corporation, the Board failed to adhere to the requisite legislative procedures in the conduct of business. Therefore, the actions at issue here, taken in violation of the express legislative procedures required by the Church’s constitution were not validly enacted. See id. at 196 (1).

Decided June 3, 1996

Reconsideration denied June 18, 1996

J. Edwin Peavy, for appellants.

Simon, Booth & Cook, William M. Simon, Gibson & Spivey, D. Lamar Gibson, for appellees.

Judgment reversed.

Andrews and Smith, JJ, concur.

       The other appellees are: Bishop W. L. Johnson, Bishop J. Thompson, Elder W. Bankston, Elder H. Cohen, Elder J. C. Howard, Elder J. J. Liton, Elder C. C. Singleton, and Elder John Thomas.

       W. L. Johnson signed the resolutions passed by the Board as a member of the Board, not as the Senior Bishop.


text:
    A96A0617.
    L.C.P. CHEMICALS et al. v. STRICKLAND.
    (472 SE2d 471)
   Smith, Judge.

In this workers’ compensation case, the ALJ denied Robert Strickland’s claim for total disability benefits based on change in condition. The appellate division of the State Board of Workers’ Compensation adopted the conclusions of the ALJ. The superior court reversed, and we granted the application for discretionary appeal filed by L.C.P. Chemicals, Strickland’s employer, and its insurer, Insurance Company of North America.

Strickland suffered a compensable injury to his right leg on September 28, 1993, that was accepted as a medical-only claim. He returned to work approximately one week after the injury. He was paid full wages until L.C.P. Chemicals, the plant at which he worked, closed on February 1, 1994. On March 7, 1994, he filed a notice of claim seeking total disability benefits from the date of the plant closing and temporary partial disability benefits for an additional 2.25 weeks. At issue before the ALJ was whether Strickland was entitled to benefits for a change in economic condition caused by the injury.

A claimant seeking benefits due to a change in economic condition under OCGA § 34-9-104 (b) “must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.” Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995). With regard to the third element, the ALJ made the following findings: After his injury, Strickland was a member of two bowling leagues and bowled two nights per week until withdrawing in April or May 1994; he fished about four times per week after the injury; he ran for county commissioner following his injury; and he assisted with management of a trailer park. The ALJ further found that Strickland “did not appear to be actively seeking employment at the time of the hearing.” The ALJ denied benefits, concluding that Strickland’s testimony that he was unable to secure employment was not credible and that Strickland therefore failed to meet his burden of proving he was unable to find employment because of his injury.

The superior court reversed. A work search log prepared by Strickland detailed his job search. Because that log was uncontradicted in the hearing before the ALJ, the superior court found that the ALJ erroneously determined that Strickland’s testimony about his job search lacked credibility.

When reviewing the decisions of the Board and ALJ, the superior court sits as an appellate body and is bound by the any evidence standard of review. Harris v. Seaboard Farms &c., 207 Ga. App. 147, 150 (427 SE2d 524) (1993). It may not set aside an award merely because it disagrees with the conclusions of the Board and may not “substitute its judgment as to weight and credibility of the witnesses.” (Citations and punctuation omitted.) Id. “The Board is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award.” (Citations and punctuation omitted.) Ero Indus. v. Phillips, 207 Ga. App. 432, 433 (1) (428 SE2d 396) (1993). See also Selfridge v. Morrison Cafeteria Co., 192 Ga. App. 469, 470 (1) (385 SE2d 137) (1989).

The record contains some evidence supporting the ALJ’s finding that Strickland’s testimony regarding his job search was not credible. Strickland did testify that he searched for employment since his injury, and he submitted a “record of work search” listing the inquiries he made in search of work between the date of the plant closing, February 2, 1994, through June 2, 1994. The record indicates that he made several verbal inquiries but submitted only one written application to a potential employer. He did not submit any written record concerning his job search from June 2 until the date of the hearing, November 7, 1994.

Although the evidence does not specifically show, as found by the ALJ, that Strickland fished “four times a week,” evidence was presented that after his injury, Strickland often fished and had done so on each of the two days prior to the hearing. Additionally, in April after his accident in September, he began campaigning for a position as county commissioner and raised $10,000-$12,000. He defeated his opponent in the primary election, and during the campaign he spoke with the media, drove his truck with a campaign sign mounted on it around the area, and met with individuals to discuss issues involved in his campaign. The hearing before the ALJ occurred the day before the general election.

In addition to fishing and campaigning after the plant closing, Strickland helped his girl friend manage a trailer park. He collected money for her and arranged for maintenance when repairs were needed. He was also a member of two bowling leagues and bowled two nights a week from September (the month of his accident) through December. He dropped one night per week of bowling in December but continued to bowl the other night.

Decided June 3, 1996

Reconsideration denied June 18, 1996

Karsman, Brooks & Callaway, Timothy F. Callaway III, for appellants.

This evidence supports the ALJ’s findings that Strickland was “able to enjoy his recreational activities and run for public office” and that he did not appear to be actively searching for employment at the time of the hearing. The work log contained entries only for approximately three months and contained no entries for the five months preceding the hearing. Based on the evidence presented, the ALJ could have found that a limited log for a short period five months before the hearing did not demonstrate that Strickland had conducted a “diligent” search, especially in light of his many recreational and gainful activities during the log period and the remainder of the time prior to the hearing.

We note that one of L.C.P. Chemicals’ witnesses acknowledged that Strickland’s injury was one factor that could have prevented him from returning to work there. This acknowledgment was possibly indicative of his inability to obtain work at L.C.P. Chemicals. It did not obviate, however, Strickland’s burden of proving all three elements essential for recovery under a change of condition claim, including the showing that he made an otherwise diligent effort to obtain employment.

We also note that the trial court stated the ALJ failed to make a clear finding that Strickland had “a serious residual medical problem arising from his compensable injury” that was a detriment to employability. The court referred to “subsidiary findings” that two doctors recommended “surgery as a possible treatment for continued pain and instability” resulting from Strickland’s injury. These “subsidiary findings” do not negate the facts shown in the record supporting the ALJ’s finding that Strickland failed to exercise diligence in his search for employment.

Because evidence supports the findings of the ALJ and the appellate division, and because the trial court was not authorized to substitute its judgment for that of the ALJ, the trial court erred in reversing the ALJ’s denial of benefits to Strickland.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.

Robert L. Crowe, for appellee.


author: Birdsong, Presiding Judge.

text:
    A95A0122.
    HUNDLEY et al. v. GREENE et al.
    (472 SE2d 570)
    Decided June 18, 1996.

      Eugene D. Butt, for appellants.

      Husby, Myers & Stroberg, Roland H. Stroberg, Cook, Noell, Tolley & Wiggins, Edward D. Tolley, Ronald E. Houser, for appellees.
   Birdsong, Presiding Judge.

In Hundley v. Greene, 218 Ga. App. 193 (461 SE2d 250), we reversed a decision of the superior court in which the superior court held it had no authority to review an arbitration award even though the arbitration award was not supported by any evidence and was thus outside the authority of the arbitrator, which we deemed to extend only so far as to rule within the evidence. However, in Greene v. Hundley, 266 Ga. 592 (468 SE2d 350), the Supreme Court reversed our decision in Hundley. Accordingly, the decision of the superior court that it had no authority to review an arbitration award for supporting evidence, even though such award is not supported by any evidence and is outside the evidence and outside the authority of the arbitrator, is affirmed.

Judgment affirmed.

Beasley, C. J, McMurray, R J., Pope, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur.


text:
    A96A0191, A96A0294.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. BREWER et al.; and vice versa.
    (472 SE2d 529)
   Birdsong, Presiding Judge.

Plaintiffs in this case, Brewer et al., seek coverage by their insurer, State Farm Mutual Automobile Insurance Company, of amounts for which they have already recovered in damages from another insurer as the result of the same automobile collision. The collision occurred in March 1992. From then until August 1994, Grady Brewer incurred $5,358.50 in medical .bills, and Loletta Middleton-Brewer incurred $4,806.08 in medical expenses. On August 4, 1994, the Brewers settled with the tortfeasor for $30,000. Relying on its policy terms and on an endorsement, State Farm refused to pay the Brewers any amount for medical expenses, contending such payment would be a double recovery. The trial court denied both the Brewers’ and State Farm’s motions for summary judgment. The trial court found ambiguity between the policy terms which allowed payment for bodily injury discovered and treated “within three years of the date of the accident,” and an amendatory endorsement which provided that if a liable third party has paid the injured person damages for bodily injury in an amount “less than the injured person’s total medical expenses, the most we will pay ... is the lesser of: (1) the limit of liability of this coverage [$10,000 per insured]; or (2) the amount by which the total amount paid by or on behalf of all parties liable,” but the endorsement also provides that if the third party pays the injured party “in an amount equal to or greater than the total reasonable and necessary medical expenses incurred by injured person, we owe nothing under this coverage.” The trial court held that “before the three-year period expires, the only way for the [insurer] to be sure it ‘owe[s] nothing under this coverage’ is if the insureds had already been paid damages for their medical expenses in excess of the policy cap of $10,000 per person.” Both sides appeal the denial of their motions for summary judgment. Held:

The trial court erred in denying summary judgment to State Farm for the claims asserted by the Brewers on the ground that State Farm’s potential liability cannot be determined until three years after the date of the accident, that is, March 2, 1997. Under the common rules of construction of insurance contracts, we find no ambiguity or uncertainty in the terms “bodily injury” and “medical expenses.” OCGA § 13-2-2 (2). The words used in policies of insurance, as in all other contracts, bear their usual and common significance, and policies of insurance are, as are all other contracts, to be construed in their ordinary meaning. American Home Assurance Co. v. Smith, 218 Ga. App. 536, 538 (462 SE2d 441).

In the first place, the Brewers do not meet their burden as respondents on State Farm’s motion for summary judgment to affirmatively controvert, by the evidence, State Farm’s prima facie showing that the $30,000 settlement paid by the liable party included all medical expenses incurred thus far for bodily injury. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

The terms of this policy contract are unambiguous, and they admit of but one reasonable construction; no court can construe the policy to provide more coverage than it plainly and unambiguously provides. See American Home Assurance Co. v. Smith, supra; Bold Corp. v. Nat. Union Fire Ins. Co. &c., 216 Ga. App. 382, 384 (454 SE2d 582). The parties contracted against a double recovery for medical expenses for bodily injury from both the liable party and State Farm. This prohibition of a double recovery is not in conflict with the provision for coverage for reasonable medical expenses furnished within three years of the date of the accident. State Farm’s full potential liability for coverage for medical expenses for bodily injury cannot be determined until three years after the accident, but its present liability is certain. The liable party has paid $30,000 to the Brewers, which is greater than the $10,164.58 they now claim. State Farm is entitled to summary judgment as to those claims.-

The effect of the endorsement language is that State Farm is entitled to summary judgment as to these claims and for any reasonable and necessary expenses for bodily injury furnished by March 2, 1997, within the policy cap of $10,000 per insured. If the Brewers sustain more than $30,000 (the amount they have been paid by the liable party) in reasonable and necessary medical expenses by March 2, 1997, State Farm will owe the lesser of the policy limits ($10,000 per insured) or the amount by which any such reasonable and necessary medical expenses exceed the $30,000 already paid by the liable party to the Brewers for bodily injury and medical expenses.

The Brewers’ argument that no portion of State Farm’s liability can be determined until their rights “mature” three years after the accident is therefore without merit. Even if they have additional medical expenses for bodily injury before March 2, 1997, there is no genuine issue of material fact that they have been compensated by the liable party in an amount greater than the sums they now claim. Accordingly, for these amounts, State Farm owes nothing.

The denial of summary judgment to State Farm on the present claims was error, and the denial of summary judgment to the Brewers on these claims was correct inasmuch as they are not entitled to coverage for these claims under the evidence and under the plain, unambiguous terms of the policy.

Judgments affirmed in part and reversed in part.

Blackburn, J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment but not in the gratuitous ruling that State Farm is entitled to summary judgment for future expenses furnished by March 2, 1997, up to $30,000.

This is not a petition for declaratory judgment as to what the insurer’s obligations under the contract are but rather a complaint by insureds seeking payment of the expenses they have incurred for medical treatment thus far, a total of $10,164.58, plus interest, attorney fees, and exemplary damages. Future medical expenses are not in issue.

Neither plaintiff is entitled to recover anything. They have jointly been paid $30,000 by the tortfeasor, in settlement, at least in part for bodily injury. Grady’s medical expenses were $5,358.50, and Loletta’s were $4,806.08. The amendatory endorsement to the insurance policy excludes coverage under the medical payment provisions in the body of the policy if the injured person has been paid damages for the bodily injury by or on behalf of the liable party in an amount equal to or greater than the medical expenses incurred by the injured party.

Decided June 18, 1996.

Downey & Cleveland, Y. Kevin Williams, Todd E. Hatcher, for appellant.

Robert B. Lipman, Christopher J. McFadden, for appellees.

“ ‘When an insurer invokes an exclusionary provision in a policy of insurance as applying to an eventQ it has the burden of showing that the facts come within the exclusion.’ [Cit.]” Lakeshore Marine v. Hartford Accident &c. Co., 164 Ga. App. 417, 420-421 (296 SE2d 418) (1982). The insurer has borne its burden of showing that its liability to pay anything at all did not arise, with respect to the current claim, due to the exclusion. That is, the insureds were paid in an amount that was more than their medical expenses by the liable party.

If the settlement had been for less than the insured’s medical expenses, the insurer could be liable for up to $10,000 per person, depending on other factors. But that is not the case.


author: Andrews, Judge.

text:
    A96A0285.
    ALPHARETTA FIRST UNITED METHODIST CHURCH et al. v. STEWART et al.
    (472 SE2d 532)
   Andrews, Judge.

Alpharetta First United Methodist Church (“Church” or “Alpharetta First”) and North Georgia Conference of the Methodist Church, Inc. (“Conference”), appeal the trial court’s denial of their motion for summary judgment on Pamela and Roger Stewart’s claims arising out of a sexual relationship between Pamela Stewart and Michael Boen, a minister at the Church. We conclude the trial court erred in denying the motion and, therefore, reverse.

Ms. Stewart alleges battery, intentional infliction of emotional distress, false imprisonment, assault, and breach of trust against Boen, the Church and the Conference. Roger Stewart brings a claim for loss of consortium against Boen, the Church and the Conference. The complaint also alleges negligent hiring and retention against the Church and Conference, and professional malpractice against Boen.

The Stewarts contend that, although Ms. Stewart appeared to consent to the sexual contacts with Boen, she was, in reality, the victim of Boen’s manipulation of the “transference” phenomenon. Transference is defined as “a process whereby a patient undergoing psychotherapy for a mental or emotional disturbance (particularly a female patient being treated by a male psychotherapist) develops such overwhelming feelings of warmth, trust, and dependency towards the therapist that she is deprived of the will to resist any sexual overtures he might make.” Jacobsen v. Boyle, 196 Ga. App. 411, 412 (397 SE2d 1) (1990).

The trial court denied the Church’s and the Conference’s motions for summary judgment, and they now appeal, contending the statute of limitation bars Ms. Stewart’s tort claims and the First Amendment protects the Church and Conference from the negligent hiring and retention claims. They also argue the sexual relationship between Stewart and Boen was consensual, and even assuming “transference” did occur and Ms. Stewart was incapable of resisting Boen’s sexual advances, the Church and Conference cannot be guilty under the doctrine of respondeat superior for an employee’s sexual misconduct.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Construing the evidence, as we must, in favor of the Stewarts as non-movants on summary judgment, the record shows that the Stewarts joined the Church in April 1990. At that time, Dr. Nat Long was the pastor, and Boen was associate pastor, having held that position since 1988. Pamela Stewart began counseling sessions with Boen in September 1990. Ms. Stewart stated that the main reason she requested the counseling sessions was because of an incident involving the associate pastor of her former church. She complained to the minister of that church about a “drunken assault” by the associate pastor while on a mission trip. According to Ms. Stewart, the minister did not believe her, told her she was a troublemaker, and requested she leave the church. Ms. Stewart said she was concerned that the ministers at Alpharetta First had been told about this incident and wanted to find out what had been said about her.

In December 1990, Boen told Ms. Stewart that she should discontinue the counseling sessions with him and find another counselor because he was sexually attracted to her. Despite this request from Boen, Ms. Stewart did not discontinue the counseling sessions, and in January 1991, Boen and Ms. Stewart began having “phone sex” conversations. Ms. Stewart stated that Boen initiated the first such conversation but that at times she would call him. Ms. Stewart said that while she led Boen to believe she was participating in the “phone sex,” she was, in actuality, only pretending.

The counseling sessions ended in February 1991. According to Ms. Stewart, her first sexual encounter with Boen was in February 1991, while still in counseling. She stated that Boen called her at home and asked her to come to his office so they could have sex. She said she got in her car, drove to his office and had sex with Boen in the office. Ms. Stewart said she did not see Boen anymore for counseling after this incident because, by that time, he had already referred her to another counselor.

Other than “phone sex,” Ms. Stewart’s next sexual encounter with Boen was in March 1991, when she called him and asked him to give her a ride to a basketball game, and he came back to her house with her.

Although Ms. Stewart states the sex was “forcible” she does not claim Boen physically forced her or that she told him “no” or physically tried to resist him. She explained as follows: “Q. Why do you call it forcible? A. Because I don’t believe that I was in an emotional position to resist him, and I don’t know why. I haven’t gotten to that part of my therapy yet.”

In June 1991, Boen left Alpharetta First to become the pastor of a Methodist Church in Carrollton. The relationship continued, however, with Ms. Stewart driving to Boen’s house in Carrollton when he would call and ask her.

In 1992, Ms. Stewart said there were several more “phone sex” conversations but no physical encounters. Stewart had another meeting with Boen in October 1993. She called him and then went to his house where they talked and then had sex. Her last sexual encounter with Boen was in November 1993. Again, Stewart stated she went to Boen’s house in response to a phone call from him. In December 1993, after learning that Boen was engaged to be married, Stewart did not see or speak to him again.

Ms. Stewart told Reverend Tinsley, the clergyman who took over as associate pastor at Alpharetta First, of her involvement with Boen. However, she refused to come forward with her story, stating she was not ready to tell anyone else. In December 1993, Reverend Tinsley urged her to disclose the relationship with Boen, but Stewart still refused.

In March 1994, Ms. Stewart sent a letter to the Conference, describing her sexual relationship with Boen. The day the Bishop received the letter, he and the district superintendent met with Boen, and Boen submitted his resignation.

Michael Boen testified in his deposition that he was not the one who made the sexual advances in the relationship with Ms. Stewart, but rather, she was the one who made advances to him. Boen testified to one act of oral sex and one act of attempted intercourse with Ms. Stewart. Boen admitted to the “phone sex” conversations but estimated that half of these conversations were initiated by Ms. Stewart.

1. Defendants are correct in their contention that Pamela Stewart’s tort claims are barred by the statute of limitation. The applicable statute of limitation on these claims is two years. OCGA § 9-3-33; Long v. Marino, 212 Ga. App. 113 (441 SE2d 475) (1994).

The tort claims against the Church are time-barred because Boen left the Church in June 1991, and the Stewarts did not file their complaint until May 17, 1994, almost three years later. With regard to the claims against the Conference, Stewart contends her last sexual encounter with Boen was in November 1993. But, Stewart also testified in her deposition that after January 1992, she had progressed in her therapy to the point where she was able to tell Boen “no” if he approached her about sexual intercourse. Accordingly, any alleged acts of sexual intercourse occurring after January 1992, were, by Ms. Stewart’s own admission, consensual. Therefore, Pamela Stewart’s tort claims against the Conference are also barred by the statute of limitation.

The Stewarts claim, however, that the statute of limitation was tolled due to Pamela Stewart’s incompetency. In support of this contention, they submit the affidavits of Ann McNeer, a clinical psychologist, and Guy Helms, a pastoral counselor. Both McNeer and Helms stated that Stewart suffered from despondency, depression, and a borderline personality disorder. But, this is not evidence of incompetency sufficient to toll the statute of limitation. This Court has held that the test for incompetency sufficient to toll the statute of limitation is “one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of her life.” (Punctuation omitted; emphasis in original.) Branch v. Carr, 196 Ga. App. 534 (396 SE2d 276) (1990) (quoting Tri-Cities Hosp. Auth. v. Sheats, 156 Ga. App. 28, 30 (273 SE2d 903) (1980)). A review of Helms’ and McNeer’s affidavits shows that neither supports a finding of incompetency as set out in Sheats. In addition, there is Pamela Stewart’s deposition testimony which affirmatively shows she was capable of managing “the ordinary affairs of life.” For instance, from June 1992 to September 1993, Ms. Stewart was very active in the Church and also held the position of Public Service Director at a local radio station. Accordingly, the statute of limitation was not tolled due to any alleged incompetency of Pamela Stewart.

2. The Stewarts’ tort claims against the Church and Conference also fail because they cannot show the Church and Conference are liable under the theory of respondeat superior. Even assuming that the relationship between Boen and Ms. Stewart was not consensual, it is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee. B. C. B. Co. v. Troutman, 200 Ga. App. 671, 672 (409 SE2d 218) (1991); Favors v. Alco Mfg. Co., 186 Ga. App. 480, 482 (367 SE2d 328) (1988); Big Brother/Big Sister of Metro Atlanta v. Terrell, 183 Ga. App. 496, 497 (359 SE2d 241) (1987). The basis for these holdings is that these types of torts, being purely personal in nature, are unrelated to the employee’s duties and, therefore, are outside the scope of employment because they were not in furtherance of the master’s business. Doe v. Village of St. Joseph, 202 Ga. App. 614, 616 (415 SE2d 56) (1992); Cox v. Brazo, 165 Ga. App. 888, 889 (303 SE2d 71) (1983). This is especially true of the sexual misconduct of a minister. The record shows that such behavior is clearly contrary to the tenets and principles of the Methodist church and is not a part of, or in any way incidental to, a minister’s duties and responsibilities.

Therefore, even if her tort claims were not time-barred, Ms. Stewart cannot recover against the Church and Conference under a theory of respondeat superior. Accordingly, although his claim is not barred by the statute of limitation, the Church and Conference also are entitled to summary judgment on Roger Stewart’s claim for loss of consortium. See Henderson v. Hercules, Inc., 253 Ga. 685 (324 SE2d 453) (1985) (right to recover on claim for loss of consortium is derivative and stems from spouse’s right to recover on his or her cause of action).

3. Next, the Church and Conference argue the Stewarts’ claim for negligent hiring and retention must fail because the First Amendment puts this issue beyond the jurisdiction of a civil court. We do not reach the constitutional issue, however, because we find the Stewarts have come forward with no evidence tending to show the Church and Conference knew or should have known that Boen had a propensity for this type of alleged sexual misconduct.

An employer may not be held liable for negligent hiring or retention unless the plaintiff shows the employer knew or should have known of the employee’s violent and criminal propensities. Thurmond v. Richmond County Bd. of Ed., 207 Ga. App. 437, 440 (428 SE2d 392) (1993); Odom v. Hubeny, 179 Ga. App. 250, 252 (345 SE2d 886) (1986). Specifically, the Stewarts must show that the Church and the Conference knew or should have known of Boen’s propensity for sexual misconduct. Slaton v. B & B Gulf Svc. Center, 178 Ga. App. 701, 702 (344 SE2d 512) (1986).

(a) Negligent hiring claim. There is nothing in the record before us to show the Church or Conference should have been on notice prior to ordaining Boen that he had a propensity for sexual misconduct. Boen had graduated from Columbia Theological Seminary and then worked for two years in a lay position before applying to be ordained. As part of the ordination process, Boen was required to submit letters of recommendation and transcripts and undergo psychological testing and extensive interviews by the ordination committee.

The Stewarts point out that Boen was suspended for a year while at Columbia for cheating on a Hebrew examination and his psychological evaluation indicated certain problems, such as difficulty controlling his impulses, a tendency to use poor judgment, a tendency to disregard the rights of others, and a likelihood to express aggression in a physical manner. This psychological evaluation consisted of the Minnesota Multiphasic Personality Inventory, the Interpersonal Behavior Survey, the Strong-Campbell Interest Inventory, and the Sentence Completion Test. The psychological evaluation also showed several positive characteristics such as: “He is very social and interested in leadership in (sic) service to other people. . . . He shows a pattern of interest moderately like those of successful ministers or social workers.” These types of generalized findings, without more, are not sufficient to put the Church and Conference on notice of a propensity for sexual misconduct. See Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119, 121 (421 SE2d 284) (1992) (in claims for negligent retention or hiring, plaintiff must show employer knew of those propensities which caused the alleged injury). Accordingly, we find no evidence in the record from which the Church or Conference could have concluded that Boen had a propensity for the type of sexual misconduct alleged by Ms. Stewart.

(b) Negligent retention claim. The record is also devoid of any probative evidence tending to show the Church or Conference was or should have been on notice of a propensity for sexual misconduct after Boen became a minister at the Church. The Stewarts make numerous allegations as to Boen’s conduct with different women but have submitted no admissible evidence in support of this contention. Although there was talk at the Church about Boen’s relationship with Beverly Merriam, a church employee, both Merriam and Boen were single at the time and later married each other. Further, Boen denied any sexual relationship with Ms. Merriam when Reverend Long questioned him on the subject. Nevertheless, because of the relationship with Merriam, Reverend Long recommended that Boen be transferred to another church in the spring of 1991. In addition, and most importantly, Boen’s personal, consensual relationship with Merriam is totally unrelated to the type of conduct complained of by Ms. Stewart. Id. at 121.

The Stewarts also argue that a letter to Reverend Long from a prospective church member put the Church and Conference on notice of Boen’s propensity for sexual misconduct. In the letter, the woman, Ms. Burkette, claimed Boen came to her house, apparently after having been drinking, made inappropriate comments and touched her on the knee. Long immediately called Burkette and met with her to discuss the letter. Long also discussed it with Boen who denied the events in the letter. Long stated that he believed Boen and felt Burkette was not telling the truth. Although Reverend Long testified about the letter from Ms. Burkette, the letter is not in evidence and there is no testimony from Ms. Burkette concerning the incident. The only evidence in the record on this matter is Reverend Long’s testimony, and he stated that, after a thorough investigation, he determined the woman was not telling the truth.

Further, as Long testified in his deposition, at no time did any woman come to him and say she was having a sexual relationship with Boen. Long also stated in his affidavit that he was never, at any time, led to believe that Boen was a threat to the women parishioners. Long further stated, “[i]n fact, I believe that Michael Boen possibly had an excellent future in the ministry.”

While Ms. Stewart states that she told Reverend Tinsley, the associate minister who succeeded Boen, about the affair with Boen, she also told him she was not ready to come forward and tell anyone else about the relationship. Accordingly, Ms. Stewart cannot now complain of Reverend Tinsley’s failure to act when she told him she was not ready to disclose her relationship with Boen. Ms. Stewart’s communications to Tinsley were privileged and could not be disclosed without her permission. OCGA § 24-9-22.

A review of the record shows the Stewarts have submitted no affidavit or deposition testimony from any woman, much less any church member, claiming any misconduct by Boen. If the Stewarts had anyone who could support their allegations as to Boen’s misconduct and the fact that the Church and Conference knew or should have known of this misconduct, it was incumbent on them “to have at least obtained an affidavit from such party so stating.” Thurmond v. Richmond County Bd. of Ed., supra at 441. The Stewarts did not do so, and therefore, there is no competent evidence in the record to support the Stewarts’ claim for negligent retention against the Church and Conference.

Decided June 18, 1996.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Joseph M. Maguire, Jr., Leslie S. Sullivan, for appellants.

George E. Tanner, Michael R. Hauptman, for appellees.

4. In light of our holdings above, we need not address the Church’s and Conference’s remaining enumerations of error as we find they are entitled to summary judgment on all claims.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       Michael Boen did not file a motion for summary judgment. Accordingly, the claims against him are not at issue in this appeal.

       While tort claims under OCGA § 9-3-33 have a two-year statute of limitation, claims for loss of consortium are governed by a four-year statute of limitation.


author: McMurray, Presiding Judge. Johnson, Judge,

text:
    A96A0512.
    TASSEN v. WAFFLE HOUSE, INC.
    (472 SE2d 545)
   McMurray, Presiding Judge.

This is a rainy day slip and fall case. Plaintiff Tassen was injured when, after dining at a restaurant operated by defendant Waffle House, Inc., she attempted to use some outside stairs constructed of railroad ties which were on her route back to an adjacent motel. Plaintiff and her companion had walked to the restaurant by a different route, so she encountered the steps for the first time immediately before her fall. After successfully addressing the first step, plaintiff’s foot slipped from under her when she placed it on the second step. Plaintiff had no difficulty seeing the steps and saw no foreign substance other than the rain to account for the slippery condition of the steps. A summary judgment was granted in favor of defendant, and plaintiff appeals. Held:

We have often cited Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 172 (138 SE2d 77) for the proposition that installation of an accepted building material does not constitute negligence simply because it becomes slippery when wet because there is scarcely any material that might be used in construction that is not made somewhat slippery by the presence of water. But we have also recognized that the use of inappropriate materials may present a particular peril when wet. Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166, 168 (1) (450 SE2d 275). In the case sub judice, we have evidence of such an extreme peril in that plaintiff has presented an expert’s affidavit stating that railroad ties are extremely slippery when wet because they are coated with creosote and that the steps at issue were inherently dangerous, due in part to the use of inappropriate materials in the construction of the steps.

The remaining issues deal with the relative knowledge of the parties concerning the characteristics of the railroad ties used in the construction of the steps since any recovery by plaintiff must be predicated upon defendant’s superior knowledge of the perilous instrumentality. Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114 (321 SE2d 830). This was plaintiff’s first encounter with the steps, and there is no suggestion that she had any advanced knowledge that inappropriate materials had been used in the construction of the stairs. Nor is there any evidence that the appearance of the steps gave any warning beyond the fact that they were wet. And, finally, there is no suggestion that the lack of suitability of railroad ties as a material for the construction of outside stairs is a matter of such common knowledge that plaintiff should be assumed to be aware of such information. Thus, a jury might conclude that plaintiff had no knowledge of the particular peril posed by the stairs constructed of railroad ties, that is, that when wet the stairs would be even more slippery than if constructed with commonly accepted building materials.

There was evidence that defendant regularly cleaned the steps. Defendant was also under a duty to inspect and keep the premises in a safe condition. “This includes ‘a duty to inspect the premises to discover possible dangerous conditions of which [it] does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.’ Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984), citing Prosser, Law of Torts (4th ed.) 393, § 61.” Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546). Regardless of whether defendant had any actual knowledge concerning the use of improper materials in the construction of the stairs, there is no evidence that it was incapable of discovering this fact through reasonable inspection. See Barlow v. Brant, 206 Ga. App. 313, 314 (2) (425 SE2d 309). Thus, for purposes of summary judgment, defendant must be presumed to have constructive knowledge that the railroad ties were an inappropriate material for use in the stairs and posed a hazard by becoming excessively slippery when wet.

There are additional issues for a jury concerning whether certain attributes of the steps, including the absence of a handrail and irregular dimensions of treads and risers, are violations of an applicable building code so as to constitute negligence per se and whether plaintiff’s knowledge of these allegedly defective conditions was equal to that of defendant. Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 125 (1), (2) (444 SE2d 341). It follows that the state court erred in granting defendant’s motion for summary judgment.

Decided June 18, 1996.

Jeffrey H. Dover, for appellant.

Croy, Harris & Hammond, A. Cullen Hammond, for appellee.

Judgment reversed.

Johnson and Ruffin, JJ, concur and also concur specially.

Johnson, Judge,

concurring specially.

I fully agree with the majority that fact questions were presented as to whether the use of railroad ties in the construction of the steps created a particularly dangerous condition and whether Tassen had superior knowledge of that hazard. I agree, therefore, that summary judgment was not appropriate in this case. I write separately to call attention to two of Tassen’s enumerations not addressed in the majority opinion.

Tassen contends that the trial court erred in holding that: (1) whether Waffle House’s failure to provide handrails constituted negligence was not a jury question; and (2) Waffle House’s failure to provide handrails and to provide stair treads and risers of particular height and width in violation of building code regulations did not amount to negligence per se. Both of these issues should have been resolved by a jury.

This Court has held that whether the failure to provide a handrail constitutes negligence is a jury question. Spencer v. Little Brownie Properties, 203 Ga. App. 324, 325 (416 SE2d 851) (1992). We have also held that a landlord’s failure to provide a handrail where a city code requires one is negligence per se, and that a jury must decide whether the code was violated. See Watts v. Jaffs, 216 Ga. App. 565 (455 SE2d 328) (1995). In her affidavit, Tassen’s expert stated that there was no handrail, that the treads and risers were of irregular dimensions, and that these conditions were in violation of the building code. Therefore, as to these issues as well as those specifically addressed in the majority opinion, questions of Waffle House’s negligence, including negligence per se, are for the jury to resolve.

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


text:
    A96A0528.
    STINSON v. THE STATE.
    (472 SE2d 538)
   Judge Harold R. Banke.

Sam Stinson was convicted of possession of cocaine with intent to distribute. Following the denial of his motion for new trial, Stinson appeals.

Stinson conducted his trial pro se, with appointed counsel assisting him with voir dire and motions arguments. Under cross-examination, the prosecutor asked Stinson, “And you never had enough money to where you could live on your own?” Stinson responded, ‘Yes, I have had enough money where I could live on my own; but at the time, I was going through financial hardship. And in between a permanent steady job to where — but I had someone that was helping me so that I was not out there having to convert myself to a criminal life in order to do that.” At this point, outside the presence of the jury, the State moved to introduce evidence of Stinson’s 1984 guilty plea to five marijuana sales. Determining that Stinson had opened the door to the introduction of his prior conviction, the trial court, over Stinson’s objection, permitted the State to question him about five previous marijuana arrests in July and August 1984 to which Stinson had entered a guilty plea. In the presence of the jury, the prosecutor asked Stinson if he were jobless would he then engage in criminal activity. Stinson testified that he was employed on each of the five dates specified, whereupon the State tendered certified copies of the indictment, guilty plea, and sentence. Stinson, the only defense witness, premised his defense on a mistaken identity theory, that the police inadvertently arrested the wrong man. After introducing the prior conviction evidence, the prosecutor queried Stinson as to whether he was the unluckiest person in the world, with undercover agents continually misidentifying him as a person selling drugs. Held:

1. The trial court erred in admitting the evidence of the guilty plea from 1984. OCGA § 24-9-20 (b) provides that when a defendant chooses to testify “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” Id. Where a defendant has not placed his character in issue, proof of prior offenses or convictions is not admissible unless offered for some proper purpose, and not to show that the defendant is a person of bad character. Jones v. State, 257 Ga. 753, 757 (363 SE2d 529) (1988); Williams v. State, 187 Ga. App. 564, 565-566 (2) (370 SE2d 821) (1988). Compare Gaither v. State, 194 Ga. App. 213, 214 (1) (390 SE2d 113) (1990) (defendant’s false denial of criminal past did not put character into issue within the meaning of OCGA § 24-9-20 (b) but did allow the State to rebut his protestations). As a general rule, “ ‘on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.’ (Cits.)” Stephens v. State, 261 Ga. 467, 469 (405 SE2d 483) (1991). To open the door to such evidence, a defendant must intentionally elect to place his good character in issue. Jones, 257 Ga. at 758.

The State’s ostensible reason for using Stinson’s prior conviction was its assertion that Stinson opened the door to this evidence. We do not agree that Stinson intentionally elected to put his character in issue within the meaning of OCGA § 24-9-20 (b) by his rambling, somewhat unresponsive answer. See McGuire v. State, 188 Ga. App. 891, 892 (2) (374 SE2d 816) (1988) (accused rapist’s comment that he was “not that type of person” did not open door to prior arrest on sex-related charges). Compare Butts v. State, 193 Ga. App. 824, 825 (2) (389 SE2d 395) (1989) (defendant’s testimony on direct examination that he had never been convicted of a crime and that nothing like this had ever happened to him opened character door); Hayes v. State, 189 Ga. App. 39, 41 (2) (375 SE2d 114) (1988) (defendant’s testimony about his past criminal activity opened the door to evidence of his prior convictions). Nor was there any showing that the evidence was being introduced for an otherwise proper purpose. Jones, 257 Ga. at 757; see, e.g., Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) and Uniform Superior Court Rule 31,3 (B). Because the trial court improperly admitted this character evidence, Stinson’s conviction must be reversed and a new trial ordered. Daniel v. State, 211 Ga. App. 455, 457 (1) (a) (439 SE2d 720) (1993).

2. The State concedes that the disputed jury charge on the presumption of witnesses’ truthfulness has been judicially disapproved. Although the charge is not unconstitutionally burden-shifting, it can be misleading. Frost v. State, 200 Ga. App. 267, 271 (5) (407 SE2d 765) (1991). For this reason, the Georgia Supreme Court has recommended discontinuation of its use. See Noggle v. State, 256 Ga. 383, 386 (4) (349 SE2d 175) (1986).

3. The trial court properly denied Stinson’s motion for the State to perform fingerprint analysis on the packages seized. The State is not required to provide evidence which is not part of the prosecutor’s files and to investigate the case for the defense. Simmons v. State, 174 Ga. App. 171, 174 (4) (329 SE2d 312) (1985).

4. The holding in Division 1 renders consideration of the remaining enumeration unnecessary.

Decided June 18, 1996.

Jonathan H. Lipsky, for appellant.

Lewis R. Slaton, District Attorney, William F. Riley, Jr., Juliette O. W. Scales, Assistant District Attorneys, for appellee.

Judgment reversed and remanded.

Andrews and Smith, JJ, concur.

       During the course of the trial, the State did not seek to introduce the prior conviction as similar transaction evidence or for any other purpose such as impeachment.


author: McMurray, Presiding Judge.

text:
    A96A0585.
    WADDY v. SCOTTISH RITE CHILDREN’S MEDICAL CENTER.
    (472 SE2d 702)
   McMurray, Presiding Judge.

Jewel Waddy asserted an action against her former employer, Scottish Rite Children’s Medical Center (“Scottish Rite”), for intentional infliction of emotional distress, alleging Scottish Rite trumped up malignant charges against her as an excuse for discharging her from employment. Specifically, Waddy alleged that Scottish Rite leveled these false charges “as retaliation for [her] filing a Worker’s Compensation claim” and that “[c]ertain named employees of Scottish Rite began to plan and/or conspire to have [her] terminated because of certain private hostilities they had against [her] stemming from [Waddy’s] physical limitations.” Scottish Rite denied the material allegations of the complaint, and Waddy ultimately presented her evidence at trial. The case never reached the jury, however, because the trial court granted Scottish Rite’s motion for directed verdict. The trial court explained, in response to a protracted exchange concerning proof Waddy cited in support of her claim, that “you haven’t satisfied any of the three elements [(the trial court apparently perceived as) essential for establishing a prima facie case for intentional infliction of emotional distress].” This appeal followed, upon which Waddy designated only a portion of the trial transcript for inclusion in the record on appeal. In this regard, Waddy’s amended notice of appeal provides: “Plaintiff requests that, instead of sending up the entire transcript, only a partial transcript be sent up. Specifically, the portion of the transcript regarding the ruling and the argument [she asserted in opposition to Scottish Rite’s motion for] directed verdict.” Held:

1. Waddy contends the trial court’s directed verdict in favor of Scottish Rite cannot stand because Scottish Rite did not assert specific grounds for the motion at trial. Waddy also insists that the trial court erred in discounting the proof she cited in opposition to Scottish Rite’s motion for directed verdict. These assertions are without merit.

In Green v. Knight, 153 Ga. App. 183, 184 (1) (264 SE2d 657), the trial court granted the movant’s motion for directed verdict even though the movant failed to state specific grounds on which the motion was based because the record supported the movant’s general assertion that plaintiff failed to make out a prima facie case. This Court affirmed on appeal, holding that, “where a motion for directed verdict is granted and the moving party is entitled to judgment as a matter of law, the judgment of the trial court should not be reversed merely because the moving party failed to properly specify the grounds on which the motion is based. [Cits.]” Id. Although this holding appears inconsistent with the rule in Grabowski v. Radiology Assoc., P.A., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (i.e., a ground not asserted in support of a granted motion for directed verdict cannot provide justification for the trial court’s ruling on appeal), this Court recently explained that the cases are distinguishable because “Green ‘involved a lack which could not be cured upon reopening the plaintiff’s case.’ Grabowski, supra at 300 n. 1.” Boykin v. North, 218 Ga. App. 435 (1), 436 (461 SE2d 598).

The panel in Boykin v. North reasoned that, “[e]ven when the movant fails to specify in its motion the particular ground urged on appeal, if the state of the evidence is such that were the plaintiff’s case reopened the verdict would still be demanded, then it appears obvious that retrial would be futile. [The Boykin panel then concluded that the] trial court’s error in granting the motion for directed verdict despite the movant’s failure to specify the proper ground is harmless.” Id. at 437 (1). The circumstances in the case sub judice are not significantly different from those in Boykin and are no different from the circumstances in Green v. Knight, 153 Ga. App. 183, 184 (1), supra.

Scottish Rite did not give specific grounds for its motion for directed verdict, and just as in Green, the trial court granted the movant’s motion for directed verdict based on the plaintiff’s failure to make out a prima facie case. Thus, since this basis for granting a motion for directed verdict “‘involve[s] a lack which could not be cured upon reopening [Waddy’s] case[,]’ Grabowski, supra at 300 n. 1,” Boykin v. North, 218 Ga. App. 435 (1), 437, supra, the only issue remaining in the casé sub judice is whether the evidence adduced at trial supports the trial court’s determination that Waddy failed to make out a prima facie case for intentional infliction of emotional distress. This question, however, evades appellate review since Waddy failed to provide this Court with a transcript of the evidence adduced at trial. See McClaskey v. Jiffy Lube, 197 Ga. App. 537 (398 SE2d 825). Consequently, absent such a transcript or proper stipulation supporting the factual abstract Waddy conveyed in opposition to Scottish Rite’s motion for directed verdict (which was questioned by the trial court and is now disputed by Scottish Rite), we must assume the evidence adduced at trial supports the trial court’s evidentiary determination and affirm the order granting Scottish Rite’s motion for directed verdict. Id. at 538.

Decided June 18, 1996.

Rita T. Williams, for appellant.

Smith, Currie & Hancock, Catherine M. Hobart, Larry E. Forrester, for appellee.

2. Scottish Rite’s motion to dismiss this appeal based on Waddy’s alleged failure to follow this Court’s rules is hereby denied.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.