text:
    A96A1934.
    WILSON v. THE STATE.
    (476 SE2d 97)
   Blackburn, Judge.

Following a jury trial, Theopulas Jerome Wilson was convicted of trafficking in cocaine. On appeal, Wilson argues that the trial court erred in overruling his motion for mistrial, contending that a State’s witness improperly introduced evidence of his character during the trial.

On October 22, 1995, Wilson’s vehicle was stopped for a speeding violation by Terrell County Deputy Sheriff Eddie Fairbanks. Because Wilson was unable to produce his driver’s license upon request, Deputy Fairbanks conducted a computer check of Wilson’s license. The computer revealed that Wilson’s license had been suspended. Advising Wilson at this point that he was under arrest, Deputy Fairbanks asked for and received permission to search Wilson’s car. Cocaine was discovered in the passenger compartment and trunk of Wilson’s car.

Deputy Fairbanks testified that he and other officers found a black tote bag in the trunk of Wilson’s car. Inside the tote bag was a brown mailing envelope containing cocaine. When asked by the prosecutor if he had found anything inside the black tote bag identifying it as Wilson’s, Deputy Fairbanks responded affirmatively, and testified that a prison I.D. card had been found in the tote bag. Wilson’s counsel objected to this response and moved for a mistrial, contending that Wilson’s character had been impermissibly placed into evidence. The trial court overruled the motion for mistrial, gave a curative instruction before proceeding with the case, and Wilson’s counsel preserved his objection.

“The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial. Where a motion for mistrial is made on the ground of inadmissible matters being placed before the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion, the refusal to grant a mistrial is not error.” (Citations and punctuation omitted.) Edwards v. State, 200 Ga. App. 580, 582 (408 SE2d 802) (1991).

Deputy Fairbanks discovered the prison I.D. card during the course of Wilson’s arrest and the contemporaneous search of his vehicle. Wilson does not dispute that he consented to the search. ‘Where evidence is relevant and material, it is not objectionable merely because it is prejudicial or because its effect is incidentally to put the defendant’s character in issue.” (Punctuation omitted.) Sims v. State, 180 Ga. App. 537, 538 (349 SE2d 783) (1986). See Pemberton v. State, 220 Ga. App. 253 (469 SE2d 233) (1996) (officer’s testimony that defendant was found detained in the Clayton County Jail did not merit mistrial in light of the trial court’s decision to give curative instructions). “All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them.” (Punctuation omitted.) Coney v. State, 198 Ga. App. 272, 273-274 (401 SE2d 304) (1991).

Reference to a prison I.D. card does not necessarily infer that the holder is a prisoner. Many employees, vendors and other non-prisoner personnel are issued I.D. cards. However, even if the testimony had been improper, based on the trial court’s curative instruction, as well as the overwhelming evidence against Wilson, the evidence in question did not affect the jury’s verdict or hamper Wilson’s right to a fair trial and was therefore harmless. See Pemberton, supra. Accordingly, we find that the trial court did not abuse its discretion by denying Wilson’s motion for a mistrial. Id.

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, C. J., concurs specially.

Decided September 18, 1996.

Collier & Gamble, Wilbur T. Gamble III, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Beasley, Chief Judge,

concurring specially.

I concur in the judgment because, as the majority states, the curative instruction was adequate and the evidence against Wilson was overwhelming. However, the testimony that a “prison” I.D. card in defendant’s name was found with the contraband in the tote bag in his vehicle was not admissible and that is why the court gave a curative instruction after a lengthy discussion with counsel.

The certified law enforcement officer, who had been employed in law enforcement for six years, was asked on direct whether he found anything in the bag “that identified it as being connected in any way to the Defendant.” He responded: ‘Yes, sir. I found a ID card, a prison ID card inside.” Defendant moved for a mistrial on the ground that defendant’s character had been put in evidence. See OCGA § 24-9-20 (b).

While it is true that circumstances surrounding an arrest are admissible and that prejudicial evidence and evidence which incidentally puts a defendant’s character in issue are admissible if relevant and material, the fact that the I.D. card was one issued by a prison was not relevant, material, or necessary. As the trial court asked at the outset of the hearing on the motion, outside the presence of the jury, “Why was the witness not instructed to just say, T found an ID card,’ instead of T found a prison ID card?’ ” OCGA § 24-2-2 provides: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” The fact that defendant had been in prison was not relevant to any issue to be tried by the jury.

After the discussion and just prior to recalling the jury and instructing it, the court admonished the state’s attorney to instruct the witness “that anything that might bring this Defendant’s character into evidence he cannot say.” Considering the circumstances involving the nature of the evidence, the immediate reaction of defendant, the length of time the jury was sequestered while the matter was decided, and the cautionary instruction of the court, it is just as likely if not more so that a jury would infer that the card was issued to defendant as a prisoner rather than as an employee or outside vendor. Had it been one of the innocuous latter type, no doubt such an explanation would be given.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A96A1261.
    ROCKDALE BODY SHOP, INC. et al. v. THOMPSON.
    (476 SE2d 22)
   Birdsong, Presiding Judge.

Appellants/defendants Rockdale Body Shop, Inc. and Michael Dean Harris appeal from the verdict entered in favor of appellee/ plaintiff Keith Thompson and from the denial of appellants’ motion for judgment notwithstanding the verdict or in the alternative a motion for new trial. (Harris’s wife, who is not a party to this suit, served as the president of Rockdale Body Shop, and appellant Harris served as one of its corporate officers.)

Appellee, a builder, requested appellants to perform restoration services on his antique Ford pickup; a written restoration contract allegedly was executed between the parties. The truck was restored, but a dispute developed as to the amount due and owing appellants. Appellants contended the terms of the written contract fixed the price of restoration services; however, appellee denied executing the written contract and contended there existed an independent oral agreement between the parties that appellee would reduce his contractor fees on appellant Harris’s house from 13 to 11 percent in consideration of Rockdale Body Shop holding its restoration costs on the truck to $5,000. (At trial appellee introduced expert testimony that it was not the appellee who had signed his signature to the alleged written contract relied upon by appellants.)

Appellants held the truck pending receipt of the disputed payment. Appellee filed a suit in trover against both appellants/defendants for return of the pickup, paid a cash bond into the court registry, and received possession of the truck. Appellants filed a counterclaim for payment of restoration services rendered. Appellee subsequently amended his complaint also to aver a cause of action of fraud and to assert a claim for general and punitive damages against appellant Michael Dean Harris only. In support of the fraud claim, appellee in essence contended appellant Harris had defrauded him by manipulating the price charged for performed and unperformed work on the vehicle. The trial court directed a verdict in favor of appellant/ defendant Harris in his individual capacity as to the claim for fraud and also as to punitive damages and attorney fees, but not as to the trover claim; however, the trial court allowed appellant Harris’s name to remain on the caption of the verdict form for damages together with that of appellant Rockdale Body Shop. In so doing the trial court considered the issue of appellant Harris’s liability for breach of contract to be still pending and as warranting jury resolution. The jury awarded $6,500 damages against “the defendant” on the typed verdict form bearing the names of both appellants as the “defendant” in the caption, and awarded $2,500 punitive damages and $4,500 attorney fees against appellant/defendant Rockdale Body Shop on a handwritten verdict form. Judgment was entered in the amount of $6,500 damages against both appellants/defendants, and entered in the amount of $2,500 punitive damages and $4,500 attorney fees against appellant/defendant Rockdale Body Shop only.

Appellants enumerate that the trial court erred in denying their respective motions for directed verdict and in giving an instruction to the jury regarding the tort of forgery, and that the verdict was against the weight of the evidence and was contrary to the evidence and law. Held:

1. The standard for directed verdict and j.n.o.v. is the same. “Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554). The standard of appellate review of a trial court’s denial of a directed verdict motion is the “any evidence” standard. Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267).

2. In support of their enumerations appellants contend inter alia that in the consolidated pretrial order entered in the case, appellee stated only a cause of action of fraud against appellant Harris, failed to state a claim of forgery against either appellant/defendant, and failed to state a claim of breach of contract against either of the appellants.

At the outset we note that neither the complaint nor its amendment expressly avers a cause of action of breach of contract or of forgery. Likewise, neither did the consolidated pretrial order expressly address these particular causes of action. Nevertheless, the pretrial order stated that “the issues are in dispute,” by plaintiff, regarding the terms of the restoration contract. While not expressly addressing a claim of forgery, the pretrial order also identified as an issue whether defendants were obligated to plaintiff for fraud and listed the name of plaintiff’s handwriting expert as a witness. “ ‘(A) pretrial order should be liberally construed to allow the consideration of all questions fairly within the ambit of the contested issues.’ ” (Citation omitted.) Hathaway v. Bishop, 214 Ga. App. 870, 871 (2) (449 SE2d 318).

As a general rule, a pretrial order, when entered, controls the subsequent course of the action and serves to limit the issues for trial, unless modified at trial to prevent manifest injustice. OCGA § 9-11-16 (b). However, OCGA § 9-11-16 (b) (Rule 16 (b)) “must always be considered in light of the mandatory provisions of [OCGA § 9-11-15 (b) (Rule 15 (b))].” (Emphasis in original.) Carreras v. Austell Box Board Corp., 154 Ga. App. 135, 138 (2) (267 SE2d 792). Appellants’ reliance on Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443 (430 SE2d 813) is misplaced, as this case is distinguishable from the case at bar. Morris, does not address the relationship of OCGA § 9-11-16 (b) to the pleadings amendment provisions of OCGA § 9-11-15 (b); it is well settled that questions which merely lurk in a record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedent. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529), its progeny and cases cited therein.

Examination of the transcript reveals that evidence as to a breach of contract and forgery was introduced at trial without objection on the grounds that it was beyond the scope of the pleadings. We find that as to these issues, the pleadings were amended implicitly pursuant to the provisions of OCGA § 9-11-15 (b). “ The test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend, offer evidence or was misled.’ ” (Citation omitted.) Hathaway, supra at 872 (2); accord Carreras, supra at 138 (2). The record before us reveals that appellants had a fair opportunity to defend against these claims, to offer evidence, and were not misled thereby at trial. “Omission of an issue from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated.” Dunkin’ Donuts &c. v. Gebar, Inc., 202 Ga. App. 450, 451 (1) (b) (414 SE2d 683).

While the evidence as to a forgery committed by appellants was entirely circumstantial, it was sufficient to give rise to a question for jury resolution (Mattox, supra) and the trial court did not err in charging as to this issue. An instruction is neither abstract nor inapplicable when there is any evidence, however slight, on which to predicate it. To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on regarding it. East Side Auto Parts v. Wilson, 146 Ga. App. 753 (2) (247 SE2d 571).

All of appellants’ assertions in support of their enumerations of error are without merit. As to each appellant/defendant, there was some admissible evidence before the jury supporting the causes of action at issue. On appeal it is not the function of an appellate court to weigh evidence or to determine witness credibility (see generally Horney v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629)), but to determine evidence sufficiency. The trial court did not err in denying each appellant’s motion for directed verdict and in charging on the tort of forgery. Likewise, appellants’ claim that the verdict was against the weight of the evidence and that the verdict was contrary to law and evidence is without merit. There exist no errors of law as asserted; on appeal, this Court must construe the evidence to support the verdict and judgment, and if there is some evidence to support the verdict, we will uphold the judgment. Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696).

Decided August 29, 1996

Reconsideration denied September 19, 1996

Terry N. Massey, for appellants.

Burkett & Schneider, Gene Burkett, for appellee.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


author: Pope, Presiding Judge.

text:
    A96A1481, A96A1482.
    UNITED ACOUSTICAL & DRYWALL SYSTEMS, INC. v. FIDELITY & CASUALTY COMPANY OF NEW YORK; and vice versa.
    (476 SE2d 277)
   Pope, Presiding Judge.

These appeals involve a premium on a workers’ compensation insurance policy which United Acoustical & Drywall Systems, Inc. (“United”) obtained from Fidelity & Casualty Company of New York (“Fidelity”). In Case No. A96A1481, United appeals from the judgment in Fidelity’s favor; in Case No. A96A1482, Fidelity cross-appeals. For the reasons set forth below, we reverse the judgment in Case No. A96A1481 and affirm the judgment in Case No. A96A1482.

On August 18, 1994, Fidelity filed its complaint against United, alleging that United was indebted to it for various premium payments totaling $40,351, plus prejudgment interest and court costs. It was undisputed that Continental Insurance Company issued a workers’ compensation insurance policy for United through Fidelity for the period October 1, 1989 through October 1, 1990. The policy was an assigned risk pursuant to the Georgia Workers Compensation Plan. The estimated annual premium for the policy was $6,943. Nevertheless, the policy contained a provision by which the actual premium due would be calculated based on a final audit of United, which was to be undertaken by Fidelity.

The policy stated that the premium shown on the information page was an estimate and that the “final premium will be determined after this policy ends by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy. . . .” The policy further stated: ‘You [the insured] will keep records of information needed to compute premium. You will provide us with copies of those records when we ask for them.” Regarding audits, the policy stated: ‘You will let us examine and audit all your records that relate to this policy. These records include ledgers, journals, registers, vouchers, contracts, tax reports, payroll and disbursement records, and programs for storing and retrieving data. We may conduct the audits during regular business hours during the policy period and within three years after the policy period ends. Information developed by audit will be used to determine final premium.” The policy stated that “premium for this policy will be determined by our manuals of rules, rates, rating plans and classifications. We may change our manuals and apply the changes to this policy if authorized by law or a governmental agency regulating this insurance.”

Fidelity performed an interim audit on United on April 27, 1990. As a result of that audit, Fidelity issued an endorsement charging United an additional annual premium of $35,008. On August 1, 1990, Fidelity charged a further premium of $991. The policy was extended for the term of October 1, 1990 through October 1, 1991, and was cancelled on February 5, 1991. United does not contest the outstanding balance owed on the $3,851 premium charged for this period, and thus, we will not address it here. It is undisputed that Fidelity never performed a final audit at the conclusion of the October 1989-1990 policy period.

After Fidelity filed its complaint, United answered and filed a motion for protective order, arguing that Fidelity was barred from performing an audit since its request was more than three years after the end of the policy term, as provided for in the policy. Fidelity opposed United’s motion and filed the affidavit of its attorney, in which he swore that the premiums claim had been the subject of a May 1993 lawsuit, which suit was dismissed without prejudice based on an agreement in which United agreed to make its payroll records available. From the letters attached to his affidavit, it appears that United did not allow the audit to occur. In a second affidavit opposing the protective order, an insurance officer stated that in order to verify the premium due, it was necessary for United to provide certain records to Fidelity.

Fidelity then filed a motion for summary judgment, accompanied by the affidavit of Continental’s regional audit manager, who stated that United owed $38,313 for the disputed period. This representative then stated: “[ojrdinarily, [Fidelity] would have conducted an audit after expiration of the term, October 1, 1989 through October 1, 1990. One of [Fidelity’s] former employees, Gwen Morris, reported to [Fidelity] that an audit had been done when in fact one had not. [Fidelity] believed that a final audit had been performed. After [Fidelity] discovered that there had been no final audit for the term October 1, 1989 through October 1, 1990, [Fidelity] asked [United] to perform an audit. [United] agreed but [United] is now either unwilling or unable to cooperate in an audit.” Fidelity also attached the affidavit of an auditor for Continental in which he stated that he conducted an audit of United’s payroll, based on data provided by United, for October 1, 1989 to April 1, 1990.

United also filed a motion for summary judgment, arguing that it was entitled to summary judgment on all of Fidelity’s claims for the disputed premium. United argued that no final audit had been conducted, that the first request for a final audit came in February 1994, and that, accordingly, it owed no premium. Fidelity filed a response, arguing that United’s agreement in February 1994 to an audit barred its later refusal.

The day before the hearing United filed the affidavit of its president, Robert Coker, which stated that the interim auditor reviewed a summary of job categories but did not review payroll records, tax forms, or job records. Coker stated that he had never received a request from Fidelity to perform a final audit. He also stated that he had received correspondence from a Fidelity agent which stated: “there is obviously a mistake on 10/1/89 to 10/1/90 amount due. Please send to us all back up information.” The same day United also filed the affidavit of its attorney, J. Ed Segraves, in which he stated that he received a letter from Fidelity indicating that a final audit had been prepared on December 7, 1990.

The court heard argument on the motions and determined that it would not consider the untimely affidavits of J. Ed Segraves and Robert Coker. The court denied United’s motion for summary judgment; granted Fidelity’s motion for the undisputed amount for the period from October 1990 to February 1991; granted Fidelity’s motion as to half of the additional premium it claimed was due for the October 1989 to 1990 period based on the interim audit; and granted Fidelity’s motion for summary judgment as to the unpaid portion of the original (estimated) premium minus the amounts United had paid. The court entered final judgment in favor of Fidelity on the principal of $19,818 and interest at a rate of 18 percent, totaling $17,536.30. The court concluded that a factual issue remained regarding the last six months of the period in dispute — from April to October 1990.

Case No. A96A1481

1. We conclude that the state court erred in granting summary judgment to Fidelity. Although the court below interpreted the interim audit as a final audit for the period October 1989 through April 1990, there was ample evidence that the interim audit did not constitute a final audit to determine the final premium. Although the policy provided for audits during the policy term, its clear terms stated that the final premium would be determined after the conclusion of the policy term. Second, there was evidence that Fidelity’s failure to conduct the final audit was a mistake, and that the failure was attributable to Fidelity’s erroneous impression that a final audit had been performed. Finally, there was evidence that even Fidelity considered the interim audit a “test audit,” and not the basis for the calculation of the final premium.

Therefore, even in the absence of the affidavits which the court excluded from consideration, there was evidence that factual issues remain regarding the remaining balance on the policy. Although we are mindful of the logistical difficulties of calculating a premium from seven-year-old company records, this consideration does not alter our conclusion that there was evidence to preclude summary adjudication. See generally Dixieland Truck Brokers v. Intl. Indem. Co., 210 Ga. App. 160 (435 SE2d 520) (1993).

Similarly, our conclusion is not altered, as Fidelity argues, by the fact that this policy was one of assigned risk. We are mindful that “[w]hile as a general rule, it is true that the premium to be charged on an insurance policy is an essential term of the contract which requires the mutual assent of the parties for validity, this element usually arises from negotiations between the parties, which is absent when insurance coverage is provided through an assigned risk plan, as in this case. . . . [I]t is apparent that insurance coverage under the assigned risk plan is not the subject of normal negotiations between contracting parties, but is made effective by operation of law to serve the best interests of the general public.” (Punctuation omitted.) Skipper v. Fireman’s Fund Ins. Co., 212 Ga. App. 849, 850 (443 SE2d 302) (1994); see also Rondale Bus Svc. v. American Cas. Co. &c., 189 Ga. App. 869, 871 (1) (377 SE2d 726) (1989). This rule does not negate the clear policy terms providing for a determination of the premium at the end of the policy period, because the question here is whether the data used for calculating the premium was appropriate, while this argument goes to the allowable rates themselves.

2. United argues that the court erred in failing to enter summary judgment in its favor since the three-year term for performing an audit expired in October 1993/ We reject this argument, since there was evidence that Fidelity did request audit information before the expiration of the three-year period; moreover, there was evidence that United agreed to an audit. Given this evidence, the court’s denial of the motion was proper because there were factual issues as to United’s cooperation with the policy terms. See Diamonds & Denims v. First of Ga. Ins. Co., 203 Ga. App. 681 (417 SE2d 440) (1992); compare KHD Deutz v. Utica Mut. Ins. Co., 220 Ga. App. 194 (469 SE2d 336) (1996).

Decided September 19, 1996.

Zachary & Segraves, J. Ed Segraves, for appellant.

Stokes, Lazarus & Carmichael, Richard J. Joseph, for appellee.

Given our conclusion in Division 1, we need not reach United’s argument regarding interest. See generally C & H Couriers v. American Mut. Ins. Co., 170 Ga. App. 684, 685 (2) (318 SE2d 77) (1984).

Case No. A96A1482

3. In its cross-appeal, Fidelity argues that the court erred in partially denying its motion for summary judgment and awarding only half of the amount it sought. For the reasons set forth above, we find this argument without merit and affirm the partial denial of Fidelity’s motion.

Judgment affirmed in Case No. A96A1482. Judgment reversed in Case No. A96A1481.

Andrews and Smith, JJ., concur.

       Prior to this, the policy was cancelled briefly for nonpayment of premium hut was reinstated immediately once the premium payment was received.

       For this period, Fidelity audited United’s payroll in July 1991 and sent United an audit statement for $3,851.


author: Eldridge, Judge.

text:
    A96A2110.
    HICKS v. THE STATE.
    (476 SE2d 101)
   Eldridge, Judge.

Appellant Sheddrick Hicks challenges his conviction on one count of rape, one count of kidnapping with bodily injury, and one count of aggravated sodomy, for which he was sentenced to life in prison.

On January 23, 1994, police officers were dispatched to room 119 of the Candle Light Motel in Dublin, Laurens County, to respond to an assault. When police arrived, they found the victim upset, crying, and “a little hysterical.” The victim told police officers that appellant had entered the motel room where she was staying with her young child; that she had asked him to leave; that he forced her to have sexual intercourse; that he wrapped his belt around her neck and dragged her around the room; and that he forced her to perform oral sex on him. The victim was then taken to the local emergency room for treatment for bruises and bite marks on her face and neck.

After the victim identified the appellant as her attacker, police officers at the scene approached the appellant to ask him a few questions. At that time, appellant admitted to police that he had just had sex with the victim. The police officers asked appellant to get into the patrol car, at which time appellant told the officers that he needed to get his belt; appellant then retrieved his belt, which was on the floor of the motel room. The police officers were not questioning appellant when he mentioned his belt. The belt was later determined to be the same belt that was used to choke the victim during the assault. Appellant was subsequently charged with the crimes enumerated above and was convicted after a jury trial in November 1994. Appellant filed a timely appeal.

1. In the first enumeration of error, appellant alleges that the trial court erred by excluding portions of a conversation between appellant and the victim immediately prior to and during the course of the alleged criminal acts. The trial court ruled that the challenged evidence must be excluded under Georgia’s “rape shield” statute, OCGA § 24-2-3.

Under the state’s “rape shield” statute, “[i]n any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness shall not be admissible” unless the trial court finds that the evidence relates to “sexual behavior directly [involving] the participation of the accused . . . and [which] supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of. . . .” OCGA § 24-2-3 (a), (b). However, evidence relating to the accused is admissible only if it is “so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.” OCGA § 24-2-3 (c) (2). The purpose of the law is to “protect the complaining witness, thereby encouraging the reporting and prosecution of rapes” by excluding immaterial and prejudicial evidence of the victim’s sexual history. Brown v. State, 214 Ga. App. 676, 678 (448 SE2d 723) (1994). Further, “[w]hether to allow testimony concerning a rape victim’s prior sexual history is in the court’s discretion.” Id. at 677.

In the case sub judice, during an in camera hearing, appellant proffered evidence of portions of a conversation between áppellant and victim that involved her past sexual abuse by family members and others. The proffered evidence also referred to emotional problems that the victim was experiencing as a result of her past sexual abuse. This evidence does not involve the defendant and does not support a defense of the victim’s implied consent to appellant’s acts.

Appellant claims that the evidence may establish the existence of a non-sexual relationship between the appellant and victim that could have created the impression of implied consent; however, the evidence is still inadmissible under the rape shield law unless it proves past sexual behavior directly involving the appellant. The past sexual activity that was excluded did not involve the appellant, and the appellant admits that he had not met the victim prior to the date of the assault.

Finally, appellant claims that the evidence should have been admitted because evidence regarding prior false allegations of abuse made by victims may be used for the purposes of impeachment and as substantive evidence. However, “before such evidence can be admitted, the trial court must make a ‘threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists. . . . [Cit.]’ ” Smith v. State, 259 Ga. 135, 138 (377 SE2d 158) (1989), cert. denied, 493 U. S. 825, 110 SC 88, 107 LE2d 53) (1989). Appellant has proffered no evidence that the victim’s allegations of past sexual abuse were false. Therefore, the evidence regarding portions of a conversation between appellant and the victim was properly excluded.

2. In the second enumeration of error, appellant asserts that certain statements made to arresting officers the night of the crime should have been excluded, since the statements were made prior to appellant being advised of his Miranda rights. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Appellant specifically objects to the admission of statements made while he was getting into the patrol car.

The necessity of giving Miranda warnings exists only when an individual is questioned while in custody. Moses v. State, 264 Ga. 313, 314 (444 SE2d 767) (1994). “ ‘Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess.’” Id. at 315, quoting Minnesota v. Murphy, 465 U. S. 420, 433 (104 SC 1136, 79 LE2d 409) (1984).

In the case sub judice, the victim identified appellant as her attacker, and appellant admitted having sex with the victim. At that point, as police officers were directing appellant into the patrol car, appellant mentioned that he needed to get his belt from the motel room. Appellant was allowed to retrieve his belt, which was subsequently determined to be the belt that was wrapped around the victim’s throat during the assault. The police officers testified that they were not interrogating the appellant at that time, and the appellant has presented no evidence to the contrary. Even if the appellant was technically in custody at the time the statements were made, the appellant was not being questioned by police and Miranda warnings were not necessary. Therefore, the evidence was properly admitted.

3. Appellant asserts in his third enumeration of error that the trial court erred when it refused to instruct the jury on the rape shield statute, when the statute would have explained why some defense issues were not raised in the evidence. However, the rape shield statute was intended to protect rape victims by excluding irrelevant evidence of their past sexual histories. Brown, supra. By charging the jury with the statute, the victim’s sexual history is raised as a possible issue in the trial without further explanation, leading to juror confusion and unfair prejudice against the victim’s credibility. Therefore, this Court finds appellant’s argument regarding this proposed jury charge entirely without merit and affirms the judgment of the trial court.

Decided September 19, 1996.

Celia Larsen, for appellant.

Ralph M. Walke, District Attorney, Louie C. Fraser, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Smith, JJ, concur.


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A1374.
    PERKINS et al. v. MORGAN COUNTY SCHOOL DISTRICT et al.
    (476 SE2d 592)
   Ruffin, Judge.

Willie and Nettie Perkins sued the Morgan County Board of Education (“Board of Education”), Morgan County Schools, Superintendent James Hagin, Principal Andrew Ainslie, individual members of the Morgan County Board of Education, and vocational secretary Amy Greenway for the wrongful death of their minor daughter, Denise Perkins. The suit stems from the murder of Denise Perkins after being released from school early. The Perkins appeal the trial court’s order granting summary judgment to the defendants on the basis of sovereign and official immunity. We affirm.

Viewed in a light most favorable to the Perkins, the record shows that at the beginning of the 1993-1994 school year, the Board of Education developed and implemented a School Board Policy and Procedures Handbook applicable to all students in the Morgan County School District. This handbook was distributed to all students at the beginning of the school year. Principals of each school within the Morgan County School District had the authority and discretion to develop policies and procedures necessary for the effective administration of their particular school and to set forth these school-specific policies and procedures in the form of a student handbook. Morgan County High School had such a student handbook governing the specific policies and procedures of that school.

Appellee Amy Greenway, a vocational secretary at Morgan County High School, was responsible for handling early dismissal of students. Greenway received a copy of the Morgan County High School student handbook for the school year 1993-1994. Under the heading “Early Dismissal,” the student handbook states as follows: “If a student wishes to leave school early it is expected that the parent will call and let the office know that permission has been given. Without a parent call to verify the absence the student will not be allowed to leave. Any student who is to be dismissed early must be signed out in the main office by the parents or authorized person before leaving campus unless the student drives a car to school.” Greenway was instructed and understood that she had discretion to determine whether a student had to be signed out by a parent coming to the school or whether the student could be signed out based upon a parent’s express authority given by telephone. In fact, Greenway estimated at least one student per day was signed out and permitted to leave the school in the same manner Denise left the school on the day of her murder.

On January 12, 1994, Greenway received three telephone calls requesting that Denise Perkins be allowed to leave school early. During the second phone call, Greenway informed the individual on the telephone that Denise could not leave unless her mother or guardian called the office. The first two telephone calls were made by individuals with a male voice. The third telephone call was from a person who identified herself as Nettie Perkins, Denise’s mother. The caller requested that Denise be released from school early since there was a family emergency and Denise was needed to watch her sister’s children so that her sister’s husband could take her sister to the hospital. Greenway checked the school’s computer records and confirmed that the name given by the caller was Denise Perkins’ mother. The caller authorized Denise to be signed out of school to walk to her sister’s house.

After Denise left school, she was allegedly murdered by Robert Swain at an intersection away from school property. The record is clear that appellees had no reason to believe Swain posed any threat to Denise Perkins on or before January 12, 1994. Swain was not a student at Morgan County High School on January 12, 1994, and none of the appellees ever received any information indicating or suggesting that Swain had threatened or caused harm to Denise. When Denise reported to the office to be signed out, she did not state or suggest that she was in any fear for her safety or that there was anything unusual about her mother’s request that she walk to her sister’s house and watch her sister’s children.

The trial court, after hearing oral argument and considering all the evidence, ruled that the Board of Education and Morgan County Schools had sovereign immunity as provided in the 1991 amendment to the Georgia Constitution and that the other appellees had official immunity “because their acts, if any, were discretionary and without malice or intent to cause injury.”

While the Perkins argue that summary judgment was improper as to the members of the Board of Education, Superintendent James Hagin, and Amy Greenway, they do not argue that the grant of summary judgment to the Morgan County School District, based on sovereign immunity, or to Principal Ainslie, based on official immunity, was in error. Therefore, pursuant to Court of Appeals Rule 27 (c) (2), any such contention is deemed abandoned. Teston v. Collins, 217 Ga. App. 829, 831 (2) (459 SE2d 452) (1995). For reasons which follow, we conclude that the members of the Board of Education, Superintendent Hagin, and Amy Greenway are immune from individual liability because their duties and acts were discretionary, not ministerial.

1. Members of the Morgan County Board of Education and Superintendent James Hagin. The Perkins assert that members of the Board of Education and Superintendent James Hagin are not entitled to official immunity because they failed to perform ministerial duties required of them by law. Specifically, the Perkins assert these individuals failed to perform their ministerial duty to make rules governing the early dismissal of students from school. We find no merit in this assertion.

In support of their argument, the Perkins rely on OCGA § 20-2-59, which states “[t]he county school superintendent and county board of education shall make rules to govern the county schools of their county.” The Perkins contend that OCGA § 20-2-59 establishes a ministerial duty on behalf of the Board of Education members and Superintendent Hagin to make rules governing the early dismissal of students. They further contend these individuals cannot delegate their rule-making authority to the schools or principals. Therefore, they argue that since Board of Education members and Superintendent Hagin did not make rules governing the early dismissal of students, notwithstanding the fact that Morgan County High School had such rules in their student handbook, the Board of Education members and Superintendent Hagin failed to perform their ministerial duty required by law and cannot claim official immunity. The Perkins further contend that Superintendent Hagin is not entitled to immunity since he failed to enforce the Morgan County High School policy regarding early dismissal.

This case turns on whether Superintendent Hagin and members of the Board of Education were performing discretionary acts protected by official immunity or ministerial acts not shielded by official immunity. “Generally, the determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, .and is to be made on a case-by-case basis. [Cit.]” Wright v. Ashe, 220 Ga. App. 91, 93 (469 SE2d 268) (1996).

The record reveals that the Board of Education members did develop and implement policies and procedures applicable to all schools within the Morgan County School District and distributed these rules in the form of a policy and procedures handbook to all students in the school district. Thus, the Board of Education members and superintendent did not fail to make rules; they merely did not make a rule addressing the early dismissal of students. The Perkins’ allegation that Superintendent Hagin and the Board of Education members were bound to make all rules relating to the county schools is wholly unsupported by any authority. Moreover, we do not agree with the characterization of this failure as ministerial. “The power here conferred [by OCGA § 20-2-59] is clearly for the benefit of the school system, and what rules, if any, should be formulated is left in their good judgment.” (Emphasis supplied.) King v. Wells, 190 Ga. 776, 781 (10 SE2d 832) (1940) (this case was decided under a different Code section). As this Court noted in Wright, the “Georgia courts have consistently held that making decisions regarding the means used to supervise school children is a discretionary function” which is protected by official immunity. Wright, supra at 93-94. Therefore, the decision of the Board of Education and its members to adopt or not adopt an early dismissal rule or regulation is entirely discretionary.

The Perkins’ reliance on cases involving negligence per se is inapplicable with regard to the official immunity defense. As the Supreme Court held in Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 SE2d 476) (1994), the official immunity rule “provide[s] immunity for the negligent performance of discretionary acts. . . .” Moreover, “[r]eview of [the Perkins’] arguments shows that [they do] not allege that [the Board of Education members themselves nor Hagin himself] negligently supervised [their daughter], but that [their] decision, i.e., [their] exercise of judgment, regarding the means used to supervise the children was negligence. Such decisions are discretionary, not ministerial. . . . Accordingly, [the Board of Education members and Hagin were] entitled to the defense of official immunity and this defense precludes consideration of the issue whether [the individuals were] negligent in the performance of [their] duties.” (Citations omitted.) Lewis v. McDowell, 194 Ga. App. 429, 431-432 (3) (390 SE2d 605) (1990). Thus, the trial court properly granted summary judgment to Superintendent Hagin and the Board of Education members based on official immunity.

2. Amy Greenway, Secretary. The Perkins contend the trial court erred in finding that their suit against Amy Greenway was barred by the doctrine of official immunity. We disagree. It is clear that Green-way, as the vocational secretary for Morgan County High School, is a public agent and, as such, can be sued only in her official capacity if she (1) negligently performed a ministerial duty or (2) acted with actual malice or actual intent to cause injury while performing a discretionary function. Teston, supra at 830. The Perkins “did not rebut [Greenway’s] contention that the acts were performed within [her] scope of authority, and on appeal [have] not contended that [her] actions were done with wilfulness, malice or corruption. Accordingly, the issue presented for our consideration is whether [Greenway’s] actions were discretionary or ministerial.” Lewis, supra at 431 (3).

The Perkins argue that Greenway negligently performed a ministerial duty imposed on her by the school, handbook. We disagree. In Wright we rejected the contention that although creating school policies “supervising and controlling the activities of students” was a discretionary act, the simple implementation of these policies was ministerial in nature. Wright, supra at 93. In Wright, the issue was whether school officials were protected by the doctrine of official immunity when they “failed to protect Wright by not properly enforcing the school policies and not preventing him from leaving the campus during the class break.” Id. Likewise, in the present case the issue is whether a school official is protected by the doctrine of official immunity when she failed to protect Denise by not properly enforcing the school’s policy regarding early dismissal and allowing Denise to leave the campus. As in Wright, we believe monitoring, supervising, and controlling the activities of students is a discretionary action protected by the doctrine of official immunity. See also Guthrie v. Irons, 211 Ga. App. 502, 504 (2) (439 SE2d 732) (1993), disapproved on other grounds in Gilbert v. Richardson, 264 Ga. at 750.

Furthermore, we reject the Perkins’ characterization of Green-way’s testimony as contradictory. Her statement that she had discretion to determine the manner in which a student should be signed out is fully consistent with her statements that she was always required to follow the handbook procedures and that she, in fact, always did so. The instructions regarding her discretion were not “other guidelines” not contained in the handbook, as the Perkins contend; rather, these instructions were an explanation of the proper meaning or interpretation of the rules contained in the handbook. That is, Greenway was simply informed that the rules in the handbook, when properly construed, required her to exercise discretion as to the manner in which students were to be dismissed early from school. It is undisputed that Greenway regularly exercised her discretion to allow students to leave on foot without a parent physically signing them out in the main office. In fact, she estimated at least one student per day was signed out and permitted to leave in the same manner Denise left the school on the day of her murder. This policy is consistent with the early dismissal rule because once Green-way received permission from the parent or authorized guardian, Greenway was then an “authorized person” who could sign the student out in the main office.

Moreover, even if Greenway’s testimony is construed to be contradictory, the application of the contradictory testimony rule does not lead to the conclusion that the function of dismissing students early is ministerial rather than discretionary. Although the Perkins argue that if the contradictory testimony rule is applied, Greenway’s testimony must be construed against her and we must assume that she was required to follow the rules as they were written in the handbook, this contention fails to establish that the handbook, as written, imposes a “ministerial duty” and not a “discretionary duty.” As the above-cited cases hold, monitoring, supervising, and controlling student activities involve discretionary decisions, even when rules regarding these activities have been promulgated. See, e.g., Wright, supra; Guthrie, supra.

Therefore, the trial court did not err in granting Greenway’s motion for summary judgment based on the doctrine of official immunity.

3. In the alternative, appellees contend they are not liable to the Perkins under the theory of intervening cause. We agree. As this Court noted in Wright, “[i]n regard to proximate cause, the question is not whether the defendants’ conduct caused the injury, but whether the causal connection between the defendants’ conduct and the injury resulting therefrom is too remote to be the basis of a recovery. . : . Generally, an intervening criminal act of a third party, without which the injury would not have occurred, will also be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct.” (Citations omitted.) Wright, supra at 94.

In order to recover in this case, as in Wright, the Perkins must show that not only were the defendants negligent in supervising Denise, but also that such negligence was the proximate cause of Denise’s injury. Id. In this case, as in Wright, the victim’s injury was directly caused by the criminal act of a third party. The evidence is undisputed that (1) the appellees had no reason to believe Swain posed any threat to Denise on or before January 12, 1994, and (2) none of the appellees had ever received any information indicating or suggesting that Swain had threatened or caused harm to Denise. In addition, there is no evidence in the record that any other Morgan County High School student had been assaulted after being released from school early. Based on the record, it was not foreseeable that Denise would be murdered after being released from school early. The fact that Greenway received three phone calls regarding Denise’s early release does not change our decision since there is no evidence that these phone calls were in any way connected to Denise’s death or Swain. Moreover, as indicated earlier, the evidence is undisputed that Denise did not state or suggest she was in any fear for her safety or that there was anything strange about her early release when she reported to the office to be signed out.

“In the instant case, in viewing the facts in the light most favorable to the [Perkins], even if the [appellees] were negligent in their supervision and monitoring of [Denise Perkins], such conduct on the part of the [appellees] did nothing more than give rise to the occasion which made [her] injuries possible. Other unforeseeable circumstances, including the intervening criminal act of [Swain], preponderated in causing the injury to [Denise]. Thus, it appears that the defendants’ conduct was, at best, a remote cause of the injuries sustained.” (Citations omitted.) Id. at 95.

Accordingly, there are no genuine issues of material fact, and the defendants are entitled to summary judgment under both the doctrine of official immunity and intervening cause.

Judgment affirmed.

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

McMurray, Presiding Judge,

concurring specially and dissenting in part.

I agree with the majority in holding that members of the Board of Education and Superintendent James Hagin are immune from individual liability based on official immunity, but not for the reason given. I believe official immunity protects the Board of Education and Superintendent James Hagin because these school officials complied with OCGA § 20-2-59 by endorsing Morgan County High School’s rule pertaining to early dismissal of children from school. I cannot endorse, however, the majority’s holding that the school’s vocational secretary (Amy Greenway) was vested with discretionary power to allow the Perkins’ 14-year-old child to leave campus without transportation and without being “signed out in the main office by the parents or [an] authorized person. . . .”

“ ‘ “(I)n Georgia the distinction between a ministerial and a discretionary act, and therefore the scope of the immunity granted a public official in any given situation, turns upon the specific character of the complained-of act, not the more general nature of the job. Partain v. Maddox, (131 Ga. App. 778, 783 (206 SE2d 618) (1974)); Price v. Owen, (67 Ga. App. 58 (19 SE2d 529) (1942)). Under this standard it makes no difference that the official is required to perform discretionary acts if the complained-of act is more properly characterized as ministerial. The grant of qualified immunity, then, is really more in the nature of a transitory privilege rooted in the fear that a contrary rule would inhibit the judgment upon which good government rests. The single overriding factor is whether the specific act from which liability allegedly arises is discretionary or ministerial.” Miree v. United States, 490 FSupp. 768, 773 (1980).’ Shuman v. Dyess, 175 Ga. App. 213, 216 (333 SE2d 379). This determination is made on a case-by-case basis. Id. at 215.” Swofford v. Cooper, 184 Ga. App. 50, 52 (1) (360 SE2d 624), aff’d, 258 Ga. 143 (368 SE2d 518).

Decided August 26, 1996

Reconsideration denied September 20, 1996

John M. Clark, Eric E. Wyatt, for appellants.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Beth S. Reeves, Lambert & Roffman, Allan R. Roffman, for appellees.

In the case sub judice, Secretary Greenway admitted that she was aware that the school’s rules provide that “[a]ny student who is to be dismissed early be signed out in the main office by the [student’s] parents or authorized person before leaving campus. ...” I believe the mandatory language of this rule left no room for discretionary variance, but required Secretary Greenway to perform the ministerial task of making sure the Perkins’ child was “signed out [of school] in the main office” by either the child’s parents or a person authorized by the child’s parents. I therefore do not agree that official immunity shields Secretary Greenway.

I also cannot go along with the majority’s holding that the appellees’ liability for negligent supervision of the Perkins’ 14-year-old child is cut off by the intervening criminal act of the third party who killed the child because that intervening criminal act was unforeseeable. In Wallace v. Boys Club of Albany &c., 211 Ga. App. 534 (439 SE2d 746), this Court rejected this defense in a case involving the alleged negligent supervision of a child who was abducted and assaulted after a child was allowed to wander alone from the safety and protection of a summer camp. This Court pertinently reasoned as follows: “In the case of negligent supervision of a child, . . . what is reasonably foreseeable is not exclusively dependent upon what is known about a specific place. The danger is not only what may happen at a specific place but what may happen to any child at any place, given that children are mobile and may, as in this case, wander away from the place where they are supposed to be if they are not adequately supervised. What is at issue in a case alleging negligent supervision of a child is whether the danger of the type of harm the child suffered was reasonably foreseeable. Accordingly, the fact that no similar act had previously occurred on or near the defendant’s premises is not dispositive of the issue of whether a jury could conclude the defendant had notice that the danger of abduction and assault existed in regard to a five or six-year-old child who wandered away from defendant’s premises without adult supervision.” Id. at 536 (2).


author: Beasley, Chief Judge.

text:
    A96A1836.
    HILL v. THE STATE.
    (476 SE2d 634)
   Beasley, Chief Judge.

Hill was convicted of possession of marijuana with intent to distribute (OCGA § 16-13-30 (b)), obstruction of an officer (OCGA § 16-10-24), and weaving over roadway (OCGA § 40-6-48 (1)). After holding a hearing, the court dismissed Hill’s motion to suppress on the ground that it failed to state facts showing that the search and seizure were unlawful as required by OCGA § 17-5-30 (b).

1. Hill first contends that the court erred in holding a hearing on his motion in his absence.

Without a waiver or acquiescence by defendant, it is. prejudicial error to conduct an evidentiary suppression hearing in defendant’s absence. See cases collected in McGinnis v. State, 208 Ga. App. 354, 357 (4) (430 SE2d 618) (1993). In McGinnis, we cited with approval Riley v. State, 180 Ga. App. 409, 411 (349 SE2d 274) (1986), stating: “[w]e held that because defendant’s counsel failed to object to the trial court’s exclusion of the defendant and because only questions of law were addressed at the pretrial hearing from which the defendant was excluded, defendant’s exclusion did not constitute reversible error.”

Inasmuch as Hill’s counsel did not object to his absence from the hearing and only questions of law were addressed, no reversible error appears.

2. Hill contends that the court erred in dismissing his motion to suppress.

“In Lavelle v. State, 250 Ga. 224 (297 SE2d 234) our highest court pointed out that although [OCGA § 17-5-30 (b)] refers to Tacts’ ‘.. . analysis reveals that, with respect to warrantless searches, many of the necessary allegations are negative facts (e.g., the search was conducted without a warrant, the movant did not consent to the search) and conclusions based upon mixed questions of law and negative fact (e.g., the officer lacked probable cause to arrest or search).’ ” State v. Blosfield, 165 Ga. App. 111, 113 (2) (299 SE2d 588) (1983); see State v. Goodman, 220 Ga. App. 169 (1) (469 SE2d 327) (1996).

In Lavelle, “[t]he court observed: ‘The defendant’s motion to suppress shows the date of the search, the location of the search (albeit a general location as opposed to a specific location), the identity of the person searched, the number of officers making the search (albeit not their identities or the organization with which they were affiliated), the identity of the material seized, the fact that the search was conducted without a warrant being exhibited to the defendant, the fact that defendant did not consent to the search, and the conclusion that there was no probable cause for the search. . . .’ ” Blosfield, supra.

Decided September 20, 1996.

The Dallas Law Firm, Lucy J. Bell, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

The motion in this case contains facts showing the date of the search, the general location of the search, the identity of the person searched, the organization with which the officer making the search was affiliated, the fact that the search was conducted without a warrant, the fact that the defendant did not consent to the search, and the conclusion that the search was unsupported by probable cause or articulable suspicion. The motion does not identify the material seized.

As in Lavelle, Hill’s motion “ ‘was sufficient to put the state on notice as to the type of search involved (without warrant vs. with warrant), which witness to bring to the hearing on the motion, and the legal issues to be resolved at that hearing. . . .’”Blosfield, supra at 113. The focus is on what transpired, not on what was seized. As in Lavelle, Blosfield, and Goodman, the motion “was sufficient to require the State to meets its allegations with proof to the contrary.” Blosfield, supra at 114; compare Taylor v. State, 197 Ga. App. 678 (1) (399 SE2d 213) (1990); Boatright v. State, 192 Ga. App. 112, 117 (8) (385 SE2d 298) (1989).

Consequently, as in Stanley v. State, 206 Ga. App. 125 (1), 126 (424 SE2d 90) (1992), “[t]he case shall be remanded ‘to the trial court with direction to conduct a hearing on appellant’s motion to suppress. Should the trial court grant appellant’s motion, he would be entitled to a new trial. Should the trial court, however, deny appellant’s motion on the merits, appellant would be entitled to file a new appeal from his conviction, an appeal limited in scope to the denial of the motion to suppress. (Cits.)’ [Cit.]”

Case remanded with direction.

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


text:
    A96A1197.
    TILLER v. THE STATE.
    (476 SE2d 591)
   Birdsong, Presiding Judge.

Appellant Geroy Tiller appeals the trial court’s denial of his motion to suppress the in-court identification of appellant by Detective Mark Anglin. In his sole enumeration of error, appellant contends the in-court identification made by Detective Anglin was based on an impermissibly suggestive pretrial, single photograph identification and should therefore be suppressed. Held:

Appellant’s contention is without merit. Testimony indicates that around 2:00 a.m., Detective Mark Anglin noticed a vehicle parked outside the Post Oaks apartment complex gates. A man, later identified as Mr. Screen, stood beside the car. Anglin, who worked as a security guard for the complex when off duty, stopped Screen and inquired about his presence near the complex. While Anglin was speaking with Screen, he noticed bumping noises coming from the complex’s laundry room. Anglin then saw appellant emerge from the laundry room with a television in his hand. Anglin, who was standing eight to ten feet from appellant, pulled his gun and instructed appellant to put down the television. Anglin then ordered Screen to lie on the ground. As a floodlight, two halogen recess lights and lamppost lights illuminated the area, Anglin testified that he had no difficulty seeing appellant’s features. Anglin was able to observe appellant for 30-45 seconds before appellant ran away. Anglin then arrested Screen, who identified appellant by name. Ninety minutes later, the criminal history department located a picture of appellant, whom Anglin recognized as the burglar. At trial, Anglin again identified appellant as the burglar, noting that he was basing his identification on what he witnessed at the complex on the night of the burglary.

Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Talley v. State, 209 Ga. App. 79, 80 (1) (432 SE2d 667); see also Merritt v. State, 211 Ga. App. 228, 230 (438 SE2d 691). In fact, even where a pretrial identification has been found to be tainted, a subsequent in-court identification is admissible if it does not depend on the prior, tainted identification but has some other, independent basis. Jacobs v. State, 207 Ga. App. 714, 715 (429 SE2d 256), citing Arnold v. State, 198 Ga. App. 449, 450 (1) (402 SE2d 69). Here, Detective Anglin testified that he based his identification on seeing appellant outside the apartment’s laundry room, holding the television, and not on the picture of appellant he viewed after the burglary. Accordingly, as Anglin’s identification had an independent origin, his in-court identification was properly allowed. We therefore find that the trial court properly denied appellant’s motion to suppress Anglin’s in-court identification.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.

Decided August 6, 1996

Reconsideration dismissed September 23, 1996.

Letitia B. Delan, for appellant.

Geroy Tiller, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A96A1591.
    LEWIS et al. v. WHITE et al.
    (476 SE2d 602)
   Smith, Judge.

This appeal arises out of a dispute between neighbors over the use of an alleyway between their homes. Thomas Anthony Lewis and his wife brought this action for malicious prosecution and loss of consortium against their neighbors, Andrea White and her husband. The trial court granted the Whites’ motion for partial summary judgment, and the Lewises appeal.

The record reveals that Lewis was arrested after Andrea White informed police officers that he had blocked her way while she was attempting to use the alleyway and frightened her by beating on her car and yelling at her. Lewis was acquitted on the resulting charge of simple assault.

According to White, Lewis placed his upper body across the hood of her car, beat on her windshield and passenger side window with his fists, and threatened her verbally. She testified she was “very frightened” by his behavior. Lewis denied that he acted uncivilly. He insisted he was not angry and spoke in a moderate tone of voice, but was simply trying to get her attention because she backed her car into his fence. He and another neighbor testified that he did not lie across the hood of her car or pound her car windows.

In the criminal action, Lewis was bound over to state court at the preliminary hearing because the magistrate found that the evidence was in conflict. He was found not guilty at a bench trial, the judge finding that the State did not show “beyond a reasonable doubt that . . . Lewis committed an act which placed . . . White in reasonable apprehension ... of immediately receiving a violent injury.”

Decided September 4, 1996

Reconsideration denied September 23, 1996

Lowendick, Speed & Donahue, Kevin O. Skedsvold, for appellants.

Hollberg, Weaver & Kytle, James W. Kytle, for appellees.

In this appeal, the Lewises contend the court erred in granting partial summary judgment to the Whites on this malicious prosecution claim because genuine issues of material fact remain for jury determination. We agree and reverse.

“Among the essential elements of a claim for malicious prosecution are: (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff.” (Citations and punctuation omitted.) Williams v. Taylor, 202 Ga. App. 720, 721 (415 SE2d 498) (1992). The lack of probable cause is the gravamen of the action. Garmon v. Warehouse Groceries &c., 207 Ga. App. 89, 92 (2) (427 SE2d 308) (1993). A jury must determine whether probable cause existed unless the facts regarding probable cause are undisputed. Gantt v. Patient Communications Systems, 200 Ga. App. 35, 38 (2) (a) (406 SE2d 796) (1991); see also Garmon, supra. The fact that Lewis was bound over to state court constitutes prima facie, but not conclusive, evidence of probable cause. Monroe v. Sigler, 256 Ga. 759, 760 (3) (353 SE2d 23) (1987). It may be rebutted by evidence from the accused showing lack of probable cause. Garmon, supra at 93.

In this case, the facts were anything but undisputed. The two versions presented of the incident are diametrically opposed. If White is believed, then probable cause existed for the prosecution of Lewis. If Lewis and the other neighbor are believed, no probable cause existed for the prosecution. There is, then, a genuine issue of material fact regarding the existence of probable cause, and the trial court therefore erred in granting the Whites’ motion for summary judgment.

Judgment reversed.

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

       Summary judgment was granted as to Counts 1 and 3 of the Lewises’ complaint, dealing with malicious prosecution as to this incident and loss of consortium as to this incident. Summary judgment was later entered on the Whites’ motion as to another count of the complaint involving a different incident as well, but that ruling is not appealed.


text:
    A96A1616.
    JACKSON v. THE STATE.
    (476 SE2d 615)
   Beasley, Chief Judge.

An indictment was returned charging Jackson with the murder of Dustin Shannon, age two and one-half, and with cruelty to children. Jackson was found guilty of cruelty to the child (OCGA § 16-5-70) but not guilty of murder.

The evidence introduced in support of the verdict showed the following. Jackson, the boyfriend of Dustin’s mother, began living with them on about June 1, 1992, before which time Dustin had not been bruised or injured. Later in June, Dustin told his maternal grandmother that Jackson inflicted the bruises she observed on his buttocks. Although Dustin also told his mother that Jackson had bruised him, she dismissed his complaints and told everyone that her other child, six-year-old Little Marty, had hit Dustin. This injury was investigated by the Department of Family & Children Services (DFACS) as a result of the grandmother’s call. Because of it, the mother would not let the grandmother see Dustin anymore.

Another incident occurred in July, when Dustin was observed by family members and friends with “raccoon eyes,” dark circles around both eyes. Medical testimony was that the child’s skull was fractured. This occurred while Jackson was alone with Dustin. Jackson claimed he had been chasing Dustin when he fell and hit his head on a rocking chair. Dustin told the babysitter that Jackson had hit him, causing the black eyes. The DFACS was also called to investigate this incident.

On Sunday evening, October 4, Jackson had been watching Dustin at home while the mother momentarily left to run errands. When she returned, Dustin was crying. Jackson, who was in the bathroom with him, related to the mother he had spanked Dustin because he had urinated on himself, threw Dustin’s pajamas at her, and said she should finish dressing her son. Dustin told his mother that Jackson had hit him in the stomach. Although he said he was alright, he vomited in his bed twice during the night. The following morning, October 5, he lost consciousness and was taken to the hospital in critical condition. He was transferred to Scottish Rite Hospital and upon arrival was in a state of shock as a probable result of peritonitis or an inflammation of the bowel lining, his bowel had ruptured, his abdomen was distended, and he showed significant signs of brain injury.

While the victim’s mother and Jackson were at the hospital waiting to hear the victim’s prognosis, Jackson turned to her and was overheard saying, “Please don’t turn me in, Baby. Please don’t turn me in.” The next day, October 6, it was decided to remove Dustin’s life support because he was brain dead.

Two pediatric physicians from Scottish Rite testified that the injuries sustained by the child in the five-month period prior to his death were consistent with battered child syndrome. Both physicians and the medical examiner concluded that the injuries causing the victim’s death resulted from a direct blow to the abdomen by a blunt object, i.e., a fist.

1. In his first enumeration of error, Jackson raises two issues relating to an interrogation of him by police officers at Scottish Rite Hospital following the victim’s admission.

First, he maintains he made an equivocal request for counsel during the interview and that the officers denied him his Fifth Amendment right to counsel by not ceasing the interrogation and confining all questioning to clarifying his wishes regarding an attorney. Second, he contends that because the interview contained inadmissible evidence, the trial court erred in allowing the State to present it in its entirety.

Jackson has not complied with Court of Appeals Rule 27 (a) (1), which requires a statement in Part One of appellant’s brief setting forth “the method by which each enumeration of error was preserved for consideration.” “Appellate courts review enumerations [of error] for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court.” (Citations and punctuation omitted.) Cole v. State, 211 Ga. App. 236, 238 (438 SE2d 694) (1993). Upon our own search through the transcript, we do find that after a Jackson v. Denno hearing, the court found that Jackson’s statement to police was freely and voluntarily given. Appellant’s treatment of the issue was marginally sufficient to preserve it for appellate review.

(a) As to this issue, the transcript shows that Detective Harris, the lead investigator, first approached Jackson in the hallway of Scottish Rite on the morning of October 6 and asked to speak to him concerning Dustin. Jackson was already in police custody on an unrelated matter. At the outset, Harris and another officer showed Jackson a waiver-of-rights form and asked him to read his rights out loud. Jackson read the first part of the form and indicated that he understood his rights, but as he was reading the second part he asked what “coercion” meant. As the officers were explaining that term, he remarked, “What I — what I can’t understand is — I mean, is this — is this natural, I mean? Or is there something they’re trying to say we did? . . . Cause, I mean, if this is trying to say that I did something, you know, what should I do? Should I ask — should I ask for an attor--I don’t know.” Harris responded that the officers were just trying to find out what happened to the child from both his mother and Jackson, who were the only other persons present when he was injured; that they had already talked to the mother; and that they wanted to question Jackson and get a statement from him. After saying he had nothing to hide and loved the child, Jackson gave a statement and signed the waiver-of-rights form.

Under the circumstances, Jackson’s comments constituted a request for clarification concerning the officers’ purpose in questioning him, not an equivocal request for counsel. See Davis v. United States, 512 U. S. _ (114 SC 2350, 129 LE2d 362) (1994) (suspect did not request counsel when during the course of an interview he remarked, “Maybe I should talk to a lawyer.”); Byrd v. State, 261 Ga. 202 (2) (403 SE2d 38) (1991) (defendant did not request counsel by asking officer whether the defendant needed a lawyer); compare Henry v. State, 265 Ga. 732, 735 (4) (b) (462 SE2d 737) (1995) (defendant made an ambiguous statement regarding his desire to assert his right to counsel by stating, in response to the question of whether he wanted a lawyer, “I might need one. If I need one.”); Hall v. State, 255 Ga. 267, 268 (1) (336 SE2d 812) (1985) (defendant made an arguably ambiguous request for counsel by asking, “[W]hen do you think I’ll get to see a lawyer?”). “ ‘Mere mention of an attorney does not constitute an equivocal request for counsel, as the word “attorney” is not talismanic.’ [Cit.]” Byrd, supra at 204.

Moreover, the Georgia Supreme Court has held that “ ‘where the accused asks a question that contains an ambiguous or equivocal reference to the availability of counsel, an interrogating officer must be given considerable latitude in formulating a reasonable and responsive answer. . . .’ [Cit.]” Hall, supra at 274 (3). In this case, the officer did so. See Luallen v. State, 266 Ga. 174, 177 (4) (465 SE2d 672) (1996).

Davis, supra, relied on by the State, is distinguishable. The United States Supreme Court held that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers have no obligation to stop questioning a suspect and ask clarifying questions if the suspect has not made an unambiguous or unequivocal request for counsel. Jackson’s reference to an attorney came not while being questioned but while he was in the process of waiving his Miranda rights.

(b) As to Jackson’s second issue, he does not cite and we have not found where in the record Jackson preserved it for appellate review. We therefore do not address it.

2. Jackson complains of the trial court’s failure to charge the provisions of OCGA § 24-3-53: “All admissions shall be scanned with care, and confessions of guilt shall be received with caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.”

In the statements given by Jackson to the police, he admitted disciplining the child but denied intentionally hurting him or hitting him in the stomach. Such statements were at most admissions and not confessions. See Stowers v. State, 205 Ga. App. 518 (1), 519 (422 SE2d 870) (1992). Failure to charge the language of OCGA § 24-3-53 where there has been an admission but not a confession is not error. Richardson v. State, 256 Ga. 746, 748 (6) (353 SE2d 342) (1987).

3. Jackson contends that the trial court erred in allowing Detective Harris to testify in violation of the rule of sequestration (OCGA § 24-9-61) and in instructing the jury as to the rule without explaining its meaning.

The investigator had been exempted from the rule for a motion hearing the week before trial, where he was not a witness, because he was the main investigator. The request was not expressly renewed by the State at the outset of the trial, but the investigator remained after the rule was invoked, without his presence being challenged. When he was called as a witness, defendant objected. He was listed on the indictment as a witness and was shown on the warrant as the complaining affiant. According to Chastain v. State, 255 Ga. 723, 724 (2) (342 SE2d 678) (1986), permitting Detective Harris to testify was not error.

Moreover, “[a]ssuming arguendo a violation of the rule of sequestration, ‘ “ ‘(i)n criminal cases, the violation of the rule of sequestration of any witness . . . goes to the credibility rather than to the admissibility of the witness’ testimony.’ ” ’ [Cit.] A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.’ [Cit.]” (Emphasis in original.) Nelson v. State, 208 Ga. App. 671, 673 (5) (431 SE2d 450) (1993). In its charge to the jury, the court did explain the meaning of the rule in the language requested by defendant and specifically mentioned its applicability to Detective Harris. “On appeal, one cannot complain of a . . . charge that his own procedure or conduct aided in causing. . . . [Cits.]” Wright v. State, 199 Ga. App. 718, 719 (2) (405 SE2d 757) (1991).

4. Jackson contends that the court erred in its admission of prejudicial hearsay testimony.

At trial, Dustin’s maternal grandmother testified to statements made to her by Dustin’s brother concerning the allegation that he had caused the bruises on Dustin’s buttocks. Jackson objected because he had not been given an opportunity to cross-examine the brother. The court overruled the objection after confirming that the State intended to produce the brother as a witness. The brother did not testify, but Jackson did not renew his objection, thereby failing to preserve this issue for appellate review. “ ‘ “Where testimony is provisionally or conditionally admitted, counsel must renew his objection to it later and invoke a final ruling if he still desires its exclusion, and on his failing to do so no valid assignment of error can be made upon the court’s ruling.” (Cits.)’ [Cit.]” Harden v. State, 166 Ga. App. 279, 280 (2) (304 SE2d 456) (1983).

5. Jackson contests the court’s failure to charge the jury that the presumption of innocence “ ‘remains with [the defendant], in the nature of evidence, until rebutted by proof satisfying the jury of his guilt to the exclusion of reasonable doubt. . . .’” Reaves v. State, 146 Ga. App. 409, 412 (6) (246 SE2d 427) (1978). He argues that this omission was particularly harmful in view of the court’s charge that evidence does not include, among other things, the plea of not guilty.

Decided September 5, 1996

Reconsideration denied September 23, 1996.

Frank G. Smith, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Russell J. Parker, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In this case, like Rigsby v. State, 184 Ga. App. 330, 331 (2) (361 SE2d 694) (1987), and unlike Reaves, the trial court’s charge to the jury on the presumption of innocence was full, fair and complete. “The language requested . . . was used in Coffin v. United States, 156 U. S. 432, 458 (15 SC 394, 39 LE 481) in a legalistic discussion of the concept of the presumption of innocence, but was not intended to be required in a jury charge. [Cit.] It is not essential to the jury’s understanding of the principle and is arguably very obscure and overly narrow in meaning; moreover, it might be seen by a jury as limiting the defendant’s right to the presumption in some cases depending on the nature of the evidence.” Rigsby, supra.

6. Jackson complains of the trial court’s denial of his motion for directed verdict of acquittal, arguing that at the time the motion for directed verdict was made, the evidence was insufficient to support his conviction. “On appeal of the overruling of a motion for directed verdict, an appellate court can consider all relevant evidence of record whether presented before or after the motion was made. [Cit.]” Watkins v. State, 207 Ga. App. 766, 774 (7) (430 SE2d 105) (1993). The standard of review is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Hestley v. State, 216 Ga. App. 573, 578 (5) (455 SE2d 333) (1995). There was ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Jackson was guilty of the offense of which he was convicted.

Judgment affirmed.

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


author: Judge Harold R. Banke. Beasley, Chief Judge,

text:
    A96A1012.
    POWLEY et al. v. PRECISION PLUMBING COMPANY et al.
    (476 SE2d 777)
   Judge Harold R. Banke.

Jean F. Powley and William E. Powley, the parents of a minor, Mark Powley (collectively “Powley”), brought a personal injury action against Precision Plumbing Company (“Precision”) and its employee Richard Mixon to recover for damages allegedly sustained when Mark Powley collided with a piece of galvanized pipe protruding from the bed of Precision’s truck. Asserting four errors, Powley appeals the grant of summary judgment in favor of Precision and Mixon.

To prevail at summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the nonmovant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. At about dusk, Mark Powley, age 11, was throwing a frisbee with Mixon’s son and some friends on a public street in front of Mixon’s residence. As Mark Powley attempted to catch the frisbee, he slipped on some sand, fell, and impaled his face on a length of pipe which protruded beyond the rear bumper of a truck parked by Mixon, an employee of Precision.

Powley alleged that Mixon negligently and illegally parked Precision’s truck partly on the street pavement and partly on the shoulder, and that Mixon had negligently left the galvanized pipe jutting out past the rear edge of the truck. Mark Powley testified that the pipe protruded two feet beyond the tailgate and that he never saw anything sticking out from the bed of the truck or over the tailgate prior to falling into the pipe.

The trial court granted summary judgment finding that the pipe did not project far enough beyond the truck bed to require a flag or any sort of marking device. It further concluded that Powley was, at most, a licensee on Mixon’s premises, that Mixon’s liability was limited to only wilful or wanton injury under OCGA § 51-3-2 (b), and that Powley had equal or superior knowledge of the presence of the truck. The court also determined that there was no evidence of a causal connection between the allegedly improper location of the truck and Powley’s injuries. Held:

1. The trial court erred when it concluded that even if Mixon’s actions constituted negligence, there was no causal connection between the allegedly improper location of the truck and Powley’s injuries. See Jones v. Campbell, 198 Ga. App. 83, 85 (2) (400 SE2d 364) (1990). In this case, Powley’s evidence, if proven at trial, could show a causal connection between Mixon’s acts and omissions and Mark Powley’s injuries: 1) Mixon’s failure to utilize the truck’s elevated storage racks; 2) Mixon’s failure to safely position the pipe within the confines of the truck and allowing it to jut dangerously out past the tailgate; 3) Mixon’s failure to display a warning flag on the pipe if it, in fact, extended four feet or more past the truck bed (OCGA § 40-8-27); and 4) Mixon’s failure to move the truck completely off the street into his yard or driveway. Also at issue is whether the protruding plumbing pipe became a dangerous instrumentality when Mixon parked the truck on a residential street where children often played.

Precision’s reliance upon Jones, supra, is misplaced because in that case Jones failed to show any act or omission by Campbell that could have caused the defect at issue — a suddenly appearing sinkhole arising next to an eroding stream embankment. Jones, 198 Ga. App. at 85-86. “Ordinarily proximate cause is not appropriate for summary adjudication. North v. Toco Hills, 160 Ga. App. 116, 119 (286 SE2d 346) (1981).” Jones, 198 Ga. App. at 86. Questions of negligence, diligence, and contributory negligence are reserved for jury determination except in plain and indisputable cases. Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984). This is not such a case.

2. The trial court erred by relying exclusively on premises liability theory because it is disputed whether the incident at issue occurred on a public street or in Mixon’s front yard. The threshold question is whether premises liability law even applies if the incident occurred off Mixon’s property and no owner/invitee or licensee relationship existed between Mixon and Powley. See Keith v. Beard, 219 Ga. App. 190, 192 (2) (464 SE2d 633) (1995) (physical precedent only, Court of Appeals Rule 33 (a)).

In the event that premises liability analysis is inapplicable then Mixon owed Powley a duty of “ordinary care” or reasonable care under the circumstances. OCGA § 51-1-2. Whether Mixon’s conduct met the standard of the reasonable person is a jury question. Charter Bldrs. v. Sims Crane Svc., 150 Ga. App. 100, 102 (256 SE2d 678) (1979). See also, e.g., Shannon v. Walt Disney Productions, 156 Ga. App. 545 (275 SE2d 121) (1980).

3. The trial court erred in characterizing Mark Powley as a licensee because Powley’s evidence created a disputed issue of material fact whether the collision occurred on or off Mixon’s premises. See Division 2.

4. Even if Mark Powley was a licensee, summary judgment was improper. The trial court incorrectly determined that Mark Powley had equal or superior knowledge of the danger. “The superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care.” (Citation and punctuation omitted.) O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (1) (390 SE2d 248) (1990). In O’Steen, a static condition case, we determined that O’Steen could not recover because she had equal knowledge of the allegedly dangerous intersection because she had passed through it more than 5,000 times over a six-year period. Id. at 240. In this case, Precision failed to show that Mark Powley had equal knowledge of the danger. Although it is undisputed that Mark Powley was aware of the presence of the parked truck, it is also undisputed that he never observed the truck’s contents, it was dusk, and he was unable to see anything extending beyond the body of the pickup. Moreover, Mark Powley also testified that the truck was not parked where it was normally parked. The fact that Mark Powley had previously observed plumbing fixtures and pipes located on the truck in question does not negate his testimony that on this night he never saw anything extending beyond the rear of the truck. Compare Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140 (424 SE2d 85) (1992) (static brick retaining wall extending the entire length of an open field was open, obvious, and in plain view of child running to retrieve ball). No evidence was presented that prior to his fall, Mark Powley knew of and appreciated the possible danger posed by the pipe. Compare Riley v. Brasunas, 210 Ga. App. 865, 867 (1) (438 SE2d 113) (1993) (child social guest who knew of possible danger of falling from chin-up bar could not recover for fall); Evans v. Parker, 172 Ga. App. 416 (1) (323 SE2d 276) (1984) (social guest could not recover for slip on ice in driveway, absent showing wilful and wanton conduct on the part of property owner).

Neither Powley’s awareness of the presence of the truck nor awareness of the presence of sand establishes that Powley had knowledge of the danger posed by the protruding pipe. Whether Powley was contributorily negligent in failing to avoid the sand near the truck or by failing to keep a proper lookout for the danger are jury questions. Begin, 172 Ga. App. at 295; compare Glass v. Bell, 190 Ga. App. 159 (378 SE2d 385) (1989). Because Precision’s evidence failed to show that Mark Powley had equal or superior knowledge of the danger of the protruding pipe, and because Precision as movant did not establish that the defective condition was observable to Powley or that he failed to exercise ordinary care in connection with it, summary judgment must be reversed, even assuming that premises liability analysis applies.

Judgment reversed.

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

Beasley, Chief Judge,

concurring specially.

I concur in the reversal of summary judgment for defendants but not in all that is written with respect to the facts which are not disputed and the applicable law.

First as to the facts about which there is no genuine dispute, the parties do not dispute where the truck was parked. Both sides discuss it as in the driveway with its rear at the street. The two photos correspond to the deposition testimony. The photo taken June 22, 1992, five days after the incident, shows an in-driveway location. Mark Powley said it reflects the truck’s position at the time of the accident. The factual “dispute” between the parties concerns characterization of the evidence, such as whether the pipe jutted out “a few inches” or “two feet” beyond the yard out over the pavement.

The street does not have curbs or sidewalks and just meets the yards of the adjoining residences in an irregular fashion. Along the edges there is sand or dirt, which Mark knew would causé him to fall if he ran in it. He said at his deposition: “[Y]ou knew enough to get away from the sand; otherwise you’d fall.” The sand covered the area where the pipes protruded.

Mark saw the truck and had seen plumbing fixtures and pipes sticking out of the back of it on other occasions before this one. On this evening he was aware of the truck and of objects in its bed but did not know what they were because of shadows.

The truck was to Mark’s left as he stood in the middle of the street, and he slid on the sand as he was running, trying to catch the thrown frisbee. He testified at deposition that “whenever I’d got towards the truck I knew that I’d have to back away because of the sand. But once I started to, the sand made me slip.” He could not stop and instead fell and hit his face on the pipe which extended beyond the others in the bundle it was part of.

With respect to the law, premises liability law as presented by plaintiffs and as used in the trial court’s analysis is inapplicable because Mark was not injured on Mixon’s premises but on the public street. The case is governed instead by the liability of a landowner whose land is immediately adjacent to a public way. “Such a landowner may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public way may, by accident or some force not their own fault, fall upon and be injured by the artificial condition. [Cits.]” Intl. Paper Realty Co. v. Bethune, 256 Ga. 54, 55 (344 SE2d 228) (1986). See also McKinney & Co. v. Lawson, 180 Ga. App. 550, 551 (1) (349 SE2d 763) (1986) (“[T]he question for decision is whether the landowner negligently maintained its property in such a way as to render it liable to a person who, like plaintiff, is injured as a result thereof when he is rightfully at or near the property on a public street, sidewalk, or highway.”)

As in McKinney, defendants seek to avoid liability by focusing on the injured party. See OCGA § 51-11-7. They contend that his injuries were caused by a lack of due care for his own safety. But given plaintiff’s age, degree of knowledge, and all the undisputed circumstances developed thus far, defendants have not established that as a matter of law his negligence, if any, totally precludes recovery. “Questions necessitating a decision as to whether a given state of facts shows that lack of ordinary care for one’s own safety which will bar recovery [including assumption of risk] or only that comparative negligence which will reduce it are generally for the jury.” Stukes v. Trowell, 119 Ga. App. 651 (168 SE2d 616) (1969). “ ‘Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.’ [Cit.]” Ellington v. Tolar Constr. Co., 237 Ga. 235, 238 (227 SE2d 336) (1976).

Decided September 23, 1996.

Julian A. Mack, for appellants.

Whelchel, Brown, Readdick & Bumgartner, John E. Bumgartner, Gregory T. Carter, for appellees.

Summary judgment as provided in OCGA § 9-11-56 (c) is not authorized.