author: Andrews, Judge. Pope, Chief Judge,

text:
    A93A0964.
    GUTHRIE et al. v. IRONS et al.
    (439 SE2d 732)
   Andrews, Judge.

Plaintiffs’ 15-year-old son, Derrick Guthrie, a student at Harper High School in Atlanta, died from injuries sustained when Brian Ball, a fellow student, beat and kicked him in a school hallway between classes. This wrongful death action was brought against Ocie J. Irons, the school principal, and Mildred Faucette, a teacher at the school whose classroom was near the site of the attack. The trial court granted summary judgment in favor of both defendants, and plaintiffs appeal.

1. The complaint in this action does not seek to impose vicarious liability on the school system for actions taken by the defendant employees. Rather, the relief sought by the plaintiffs is to hold Irons and Faucette personally liable for the death of Derrick Guthrie. The immunity defense invoked in support of summary judgment by these individual defendants is not sovereign immunity, which protects the public treasury, but official immunity, which protects individual pub-lie agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988); Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980); Truelove v. Wilson, 159 Ga. App. 906, 907 (285 SE2d 556) (1981). Official immunity is a form of governmental immunity accorded public officials while acting in discretionary matters as agents for the state, and, as such, is an extension of the state’s sovereign immunity to the individual agents of the state through whom the state acts. Hennessy, supra at 330-332. The immunity issue presented by this action, filed on December 3, 1990, is governed by the former constitutional provision regarding sovereign immunity applicable to causes of action accruing prior to January 1, 1991, which provided: “[T]he defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided.” See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (as this paragraph of the Constitution appeared prior to the 1991 amendment eliminating waiver to the extent of liability insurance); Curtis v. Board of Regents &c., 262 Ga. 226 (416 SE2d 510) (1992).

The plaintiffs contend this action is not barred by official immunity because the individual defendants waived their immunity by purchasing liability insurance through their respective professional associations, covering this claim. It is undisputed that the school board, which employed the defendants, and which in the performance of a governmental function was entitled to the defense of sovereign immunity (Hennessy, supra at 329-330), did not provide the defendants with liability insurance. Under the constitutional provision applying to this case the state (or the board of education as the applicable governmental entity), by providing insurance, could choose to waive its own sovereign immunity, or the official immunity of its agents. Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 302-303 (357 SE2d 569) (1987); Swofford v. Cooper, 184 Ga. App. 50, 54 (360 SE2d 624) (1987); aff’d 258 Ga. 143 (368 SE2d 518) (1988); Hennessy, supra at 329; compare Loque v. Wright, 260 Ga. 206 (392 SE2d 235) (1990). However, neither Martin, supra, nor Swofford, supra, dealt with the issue of whether the official immunity of a governmental agent may be waived by insurance purchased, not by the state on behalf of its employees, but by the individual employee acting in his or her own behalf. Only action taken by the state (or applicable governmental entity) may waive governmental immunity of any kind. See Hennessy, supra at 329. Because official immunity is a form of governmental immunity arising from the state’s sovereign immunity, it may be waived under the applicable constitutional provision only where the state provides insurance on behalf of its employees. Moreover, if an employee of a governmental entity is allowed to waive his or her own official immunity by the purchase of private insurance, where a plaintiff seeks to impose vicarious liability on the governmental entity for whom the employee works, this would have the effect of allowing the employee to waive the state’s sovereign immunity, to the extent the employee’s insurance policy provides coverage for the state’s vicarious liability for the actions of the employee. See Dept. of Human Resources v. Poss, 263 Ga. 347 (434 SE2d 488) (1993). The purchase of private insurance by these individual defendants, even though it may cover negligence in the performance of their official acts as agents for a governmental entity, was purely a private decision, not an action taken by or on behalf of the governmental entity. Accordingly, the insurance purchased by the defendants did not waive their official immunity. Parker v. Wynn, 211 Ga. App. 78 (438 SE2d 147) (1993).

2. In the absence of any waiver of official immunity, the issue remains whether the defendants’ acts were discretionary, and therefore protected by official immunity, or ministerial acts not shielded by official immunity. Discretionary acts of government employees acting within the scope of their official authority, and done without wilfulness, malice or corruption, are protected by the doctrine of official immunity. Hennessy, supra. “It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well-established that where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without wilfulness, malice, or corruption.” (Citation and punctuation omitted.) Partain v. Maddox, 131 Ga. App. 778, 781 (206 SE2d 618) (1974). The determination as to 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 made on a case-by-case basis. Swofford, supra at 52.

The complained-of actions of both of the defendants were discretionary in nature. Plaintiffs argue that the defendants failed to protect Derrick by properly supervising students and monitoring the hallways. Plaintiffs claim Faucette failed to monitor the hallway outside her classroom during the change in classes. Evidence showed that school policy required teachers to be located in and around their doorways between classes to insure that students arriving in the classrooms took their seats in preparation for class, that other students moved on to their next class, and to monitor the halls. There was no inflexible rule governing this activity, which obviously required teachers to decide where their attention would be best directed at any particular moment to insure the orderly movement of students to the next class.

Faucette testified she was performing this task during a break between classes. She had moved a short distance down the hall from her classroom to move a group of students along when she heard a “thump” behind her. She turned around and saw Derrick on the hall floor with Ball standing over him kicking him. She immediately yelled at Ball to stop, and ran towards the boys. When she got there Ball stopped his attack, and Derrick got up, but collapsed a few seconds later. Faucette further testified that she had no knowledge of any previous threat made by Ball against Derrick.

In opposition to Faucette’s motion for summary judgment, the plaintiffs produced an affidavit and a deposition given by another student at the school, Jason Kent, a friend of Derrick’s, who testified that he told Faucette in her class the day before the attack that Ball had threatened to beat up Derrick. He further testified that neither he nor Derrick told anyone else at the school of the threat. Kent stated he saw Ball attack Derrick in the hall between classes outside of Faucette’s classroom, and that while the attack proceeded Faucette was just inside her classroom in a position near the door where she had a clear view of the area where the attack occurred in the hall. Kent testified that the attack went on for about two or three minutes, while the two boys were surrounded by a group of people screaming and making comments like “hit him, get up, whatever.” According to Kent, after Ball knocked Derrick to the floor with his fist, he repeatedly kicked Derrick in the head and chest with the steel-toed boots he was wearing, causing Derrick’s head to violently smash into the adjacent wall. He further stated that because of all the noise of people going to class, “[i]f you were standing around the corner and you just heard all the noise you would think they was just going to class. But if you looked and saw the circle you knew something was happening.” Kent did not testify that Faucette saw the attack and ignored it, but that she was not looking in that direction, that “evidently she must not have seen it,” and that she did not proceed into the hall until after the attack had stopped, and Derrick got up to walk away. Kent testified he did not attempt to call out to Faucette to draw her attention to what was happening during the attack. Of course, in reviewing the grant of summary judgment in favor of the defendants, we must accept the facts most favorable to the plaintiffs as set forth in Kent’s testimony.

As principal of the school, Irons was responsible for supervision of all the students and maintenance of discipline at the school. There was no evidence that he had any prior knowledge of Ball’s threat against Derrick. Irons was not in the area of Faucette’s classroom when the attack occurred, nor is there any evidence that he was required to be present in that particular location to help monitor the hall between class changes.

Plaintiffs argue that these duties required the defendants to carry out ministerial acts similar to those considered in Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) (1982), where the court determined it was the duty of a governmental agent to replace or repair missing or damaged road signs when instructed to do so by others, and that the act of replacing or repairing the signs, which required no exercise of discretion, was ministerial rather than discretionary. According to the plaintiffs, since the school board ultimately creates the policies giving rise to the duties at issue, the defendants simply carry out these duties by ministerial acts requiring no exercise of discretion. The ministerial duty carried out in Nelson, supra, is not remotely comparable to the difficult task faced by the school principal and teacher in this case in supervising and controlling the activities of students, especially during a change in classes, when large numbers of students are moving from one location to another.

“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Both this Court and the Supreme Court have previously held in other factual situations that making decisions requiring the means used to supervise school children is a discretionary function of a school principal. Lewis v. McDowell, 194 Ga. App. 429, 431 (390 SE2d 605) (1990); Hennessy, supra at 332. The general task imposed on Irons to monitor, supervise, and control the movement of large numbers of students during a change in classes, and the same task imposed on Faucette in the area of her classroom, necessarily required the exercise of some discretion in deciding where their attention should be directed at any particular moment, and what action might be required. See Hicks v. Walker County School Dist., 172 Ga. App. 428, 429-430 (323 SE2d 231) (1984) (school bus driver’s actions were discretionary and entitled to official immunity in suit arising out of an assault on a student by fellow students, while riding on a school bus). Under the circumstances presented in this case, the defendants were exercising what amounts to a policing function analogous to the discretionary activities of police officers. See McDay v. City of Atlanta, 204 Ga. App. 621 (420 SE2d 75) (1992); Logue, supra.

The plaintiffs argue only that Faucette and Irons negligently performed ministerial acts. Plaintiffs do not argue, nor is there evidence to support any claim, that Faucette wilfully ignored the attack, or that either defendant acted wilfully, maliciously, corruptly, or outside the scope of their authority in any manner that would remove official immunity even if their actions were otherwise discretionary. The difficulty of determining whether teachers charged with supervision of many students moving between classes should be held liable for failing to direct their attention in one direction rather than another underscores the conclusion that this is one of many judgment calls made daily by teachers dealing with supervision of students. Even if factual questions may exist as to negligence, the defendants’ actions in this case were made in the exercise of a discretionary function, and were shielded by official immunity. In exercising their professional judgment, the defendants should not be deterred or intimidated by the constant threat of personal liability, as long as they act within the scope of their authority, and without wilfulness, malice or corruption. Both defendants were entitled to summary judgment based on official immunity.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Johnson and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., dissent.

Pope, Chief Judge,

dissenting.

1. In my opinion, defendants are not entitled to summary judgment based on official immunity because their alleged negligence was in a ministerial rather than discretionary capacity. See Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). State officers or employees may rely on official immunity when they “are sued for acting in areas where they are vested with discretion and empowered to exercise judgment in matters before them.” Id. at 330. The record reveals that the school board promulgated a rule mandating that teachers stand in their doorways between classes to monitor the hallways. Nonetheless, evidence in the record supports plaintiffs’ allegations that teachers failed to consistently comply with this rule; that defendant Irons failed to enforce it; and that defendant Faucette was not monitoring the hall from her doorway at the time of the incident resulting in the death of plaintiffs’ son. The complained of act — failure to monitor the hallways between classes — was not one which was within the discretion of either defendant. The school board made the decision and took away from defendants the power to exercise their judgment to the contrary. The board’s decision to make the rule was discretionary; the defendants’ alleged failure to enforce and comply with the rule must be characterized as ministerial. See Swofford v. Cooper, 184 Ga. App. 50, 52 (1) (360 SE2d 624) (1987), aff’d Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988) (“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.”)

2. Because I conclude that defendants were not entitled to summary judgment based on official immunity, I must address defendants’ alternative argument that summary judgment was properly granted because plaintiffs presented no evidence that Derrick’s death was proximately caused by any breach of duty on their part.

Those who undertake to educate a child assume a duty to exercise ordinary care for the student’s safety. See Marques v. Riverside Military Academy, 87 Ga. App. 370 (73 SE2d 574) (1952). The pertinent analysis is similar to that applied in premises liability cases: the educator may be liable for failure to abate a dangerous condition if it appears, with due regard for the student’s age and ability to control his movements and actions, that the educator is in a better position than the student to know of the danger and abate or ameliorate it. See Watts v. Wayne County Bd. of Ed., 201 Ga. App. 777 (412 SE2d 541) (1991); Cooper v. Baldwin County School Dist., 193 Ga. App. 13 (1) (386 SE2d 896) (1989). The educator’s knowledge of the dangerous condition may be shown by evidence of prior, substantially similar incidents. Cooper, 193 Ga. App. at 14. Even if knowledge on the part of the educator is shown, however, the educator will not be liable if the injured party set into motion the chain of events leading to his injuries. See Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695 (1) (409 SE2d 89) (1991).

Viewing the evidence in the light most favorable to plaintiffs, it appears that in the two years prior to this incident, the police had been called to Harper High School forty-eight times. The record contains numerous police reports reflecting fighting and assaults in the school hallways, as well as almost 100 pages of transfer requests from parents fearing for their children’s safety. Almost all of these requests were denied. Indeed, Derrick’s mother had made such a request not long before his death, although it is undisputed that neither defendant saw it. The situation was bad enough that the school board established a rule requiring teachers to stand in their doorways to monitor the halls between classes. Yet there is evidence that this rule was not consistently followed or enforced.

Several days before Derrick was killed, Ball threatened him after Ball’s girl friend accused Derrick of attempting to rape her. Derrick’s friend Kent and Ball were both in Faucette’s third period chorus class, and when Ball was absent from chorus class the day before the killing, Kent explained Ball’s absence by telling Faucette that Ball had threatened to beat up Derrick and was probably out looking for him. Then, in the break between second and third period classes the following day, Ball carried out his threat by beating and kicking Derrick in the hallway outside Faucette’s classroom, inflicting the injuries which resulted in his death. Despite the rule requiring teachers to stand in their doorways and monitor the halls between classes, there is evidence from Derrick’s friend Kent that Faucette was not in her doorway on the day Ball killed Derrick and did not emerge from her classroom until the beating was over.

Unlike the plaintiffs in Watts and Cooper, plaintiffs in this case presented evidence showing that Irons knew or should have known that the school hallways were dangerous. See, e.g., Burdine v. Linquist, 177 Ga. App. 545 (340 SE2d 198) (1986). And even if Faucette was not aware of the police reports and transfer requests showing the dangerous nature of the hallways as a general matter, Kent notified her of the specific danger to Derrick posed by Ball the day before the incident. Accordingly, a jury could conclude that defendants were in a better position than Derrick to know of the danger in the hallways and act to ameliorate it, and that they nonetheless failed to do so. There is evidence in the record suggesting that Derrick did not need to be in the area of the chorus classroom, that he knew Ball would be there and that he set in motion the chain of events leading to his tragic death by purposefully choosing to go there and confront Ball. If so, defendants would not be liable under Sapp. See 200 Ga. App. at 696. As the record does not demand this conclusion, however, summary judgment was not warranted on this ground.

Defendants further argue that even if they were negligent, Ball’s intervening criminal act cuts off their liability because it rather than their negligence proximately caused Derrick’s death. However, the rule that the intervening criminal act of a third party cuts off a defendant’s liability applies only where the intervening criminal act is unforeseeable; it “is not applicable where the defendant has reasonable grounds for apprehending that such a criminal act will be committed. [Cit.]” Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986); accord Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241 (1) (414 SE2d 265) (1991); MARTA v. Allen, 188 Ga. App. 902 (1) (374 SE2d 761) (1988). In other words, the duty to provide safe conditions includes the duty to guard against criminal acts if those criminal acts are reasonably foreseeable. In this case, the known danger defendants failed to ameliorate was the danger of illegal acts such as assaults in the hallways. Thus, the evidence showing that the dangerous condition was known also shows that Ball’s intervening illegal act was reasonably foreseeable. For these reasons, I would conclude that questions of fact exist regarding whether Derrick’s death was proximately caused by a breach of duty on defendants’ part and would reverse the trial court’s grant of summary judgment.

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

Decided December 3, 1993

Reconsideration denied December 20, 1993

Neely & Player, David C. Marshall, Laura A. Shaw, Roberts & Isaf, Lawrence E. Newlin, for appellants.

Smith, Howard & Ajax, Warren C. Fortson, Julie J. Weatherly, for appellees.

       Although the trial court’s orders purport to grant each defendant’s “motion to dismiss,” the parties agree the orders should be treated as orders granting summary judgment since both defendants relied on evidence outside the pleadings.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A93A1074.
    GEORGIAN ART LIGHTING DESIGNS, INC. v. GWINNETT COUNTY BOARD OF TAX ASSESSORS.
    (439 SE2d 687)
   Cooper, Judge.

Appellant appeals the trial court’s grant of summary judgment to appellee, the Gwinnett County Board of Tax Assessors. The issue on appeal is whether the board correctly disallowed appellant’s claim to the freeport exemption provided by OCGA § 48-5-48.2.

Appellant filed personal property tax returns for the years 1988, 1989 and 1990 and also filed the necessary applications and schedules to receive the 80 percent freeport exemption from ad valorem taxation on personal property in Gwinnett County. Appellee conducted an audit of appellant’s personal property tax returns for those years, and the auditor discovered large discrepancies between the costs of inventory and supplies listed on appellant’s schedules and the costs listed on appellant’s financial statements. As a result, appellee proposed additional assessments for each of the tax years in question and imposed a ten percent penalty on the additional assessment. Appellee also refused to allow appellant the freeport exemption on the newly assessed property. Appellant did not contest the propriety of the additional assessments or the ten percent penalty but appealed the assessment to the Board of Equalization, contending that the freeport exemption should be allowed in determining the taxable value of the newly assessed property. The Board of Equalization ruled in appellant’s favor, granting it the exemption. Pursuant to OCGA § 48-5-311 (f) (1), appellee appealed the board’s ruling to the Superior Court of Gwinnett County. After hearing arguments on the parties’ cross-motions for summary judgment, the trial court granted appellee’s motion, concluding that appellant did not properly file for the freeport exemption and therefore waived its entitlement to the freeport exemption.

OCGA 48-5-48.1 authorizes a freeport exemption in Georgia, and provides in pertinent part: “Any person, firm, or corporation seeking an exemption from ad valorem taxation of certain tangible personal property inventory when such exemption has been authorized by the governing authority of any county or municipality after approval of the electors of such county or municipality pursuant to the authority of the Constitution of Georgia or Code Section 48-5-48.2 shall file a written application and schedule of property with the county board of tax assessors on forms furnished by such board. Such application shall be filed in the year in which exemption from taxation is sought no later than the date on which the tax receiver or tax commissioner of the county in which the property is located closes his books for the return of taxes.” OCGA § 48-5-48.1 (a). The statute further provides that “[t]he failure to file properly the application and schedule shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to make the application for such exemption for that year.” OCGA § 48-5-48.1 (c).

“The burden of proof in the superior court was on [appellee], as the part[y] who initiated the appeal to that court. [Cit.]” Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 (3) (350 SE2d 790) (1986). Appellant contends it is entitled to the freeport exemption because it complied with the statutory requirements of OCGA § 48-5-48.1 (a) by timely filing its personal property tax returns. However, appellee argues that since appellant understated the value of its inventory on the tax returns, appellant did not “file properly” the freeport exemption application and schedule as required by OCGA § 48-5-48.1 (c). Therefore, appellee contends that appellant is not entitled to claim the freeport exemption for property it failed to report on its tax returns. “[T]he applicable rule of statutory construction is that ‘forfeitures and penalties are not favored and statutes relating to them must be strictly construed, and in a manner as favorable to the person against whom the forfeiture or penalty would be exacted as is consistent with fair principles of interpretation.’ ” (Citations and punctuation omitted.) TEC &c. v. DeKalb County Bd. of Tax Assessors, 170 Ga. App. 533, 536 (1) (317 SE2d 637) (1984). Appellee suggests that we construe the statute broadly to mean that an application for the freeport exemption is not properly filed unless the application and accompanying schedules accurately and without error reflect the value of property for which the exemption is sought. “ [I]t is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature. The construction must square with common sense and sound reasoning.” (Citations and punctuation omitted.) Tolleson Lumber Co. v. Kirk, 200 Ga. App. 689, 691 (2) (409 SE2d 260) (1991). To apply the statute as appellee suggests would require the taxpayer to forfeit its statutory right to the freeport exemption on property not accurately reported on the application. We decline to place a construction on the statute when there is an existing statute which exacts a penalty on a taxpayer who fails to report the full value of personal property. See OCGA § 48-5-299. Accordingly, we conclude that appellant was entitled to the freeport exemption, and the trial court erred in granting summary judgment to appellee.

Decided November 30, 1993

Reconsideration denied December 20, 1993

Thompson & Sweeny, Virgil L. Thompson, Jr., Melanie W. Biondi, for appellant.

Karen G. Thomas, Jonathan A. Weintraub, Caryl B. Sumner, M. Van Stephens II, for appellee.

Judgment reversed.

Beasley, P. J., and Smith, J., concur.

       Although the trial court did not expressly deny appellant’s motion for summary judgment, such denial is implicit in the trial court’s ruling that appellant waived its entitlement to the exemption.


author: McMurray, Presiding Judge. Beasley, Presiding Judge, Johnson, Judge,

text:
    A93A1177.
    THE STATE v. SAVAGE.
    (439 SE2d 738)
   McMurray, Presiding Judge.

Defendant Savage was charged by accusation with driving under the influence of alcohol. The trial court granted defendant’s motion to suppress the results of an intoximeter test, finding that the arresting police officer failed to show that he had a reasonable articulable suspicion of criminal activity to justify the stop of the vehicle. The State appeals from that order, contending that the trial court erred in finding that the stop was unauthorized.

Shortly past 2:00 a.m. on Thursday, May 21, 1992, Officer Smith was on foot patrol in a “known drug area.” Smith observed defendant driving a truck through the area several times over a 15-minute period. After seeing the truck three times, Smith observed the truck pull over to the curb and stop. A pedestrian approached the passenger side of the truck, spoke briefly with defendant and made a gesture which alerted defendant to the officer’s presence. Apparently, defendant drove away after being alerted to the presence of Officer Smith. Smith radioed another officer who was also patrolling the area and told him to stop the truck if he saw it. Pursuant to this request, a traffic stop was made of the truck which resulted in the charge of driving under the influence of alcohol against defendant.

At the hearing on the motion to suppress, Officer Smith testified that he did not observe the truck violate any traffic laws. He also testified that he thought that defendant “was involved in a drug purchase due to observations he has made in past situations.”

In our view, Officer Smith had a reasonable suspicion that defendant was involved in criminal activity so that the stop of defendant was authorized under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). Although the trial court found that Officer Smith did not observe any exchange of goods or money, nor view any frantic movement or immediate flight, defendant’s actions of bringing to a halt what had been transpiring between him and the person with whom he was engaged, and distancing himself from that person and from the police when alerted to the latter’s presence, was an objective manifestation of guilt.

There is no significant distinction between the facts in the case sub judice and those in other cases wherein we have held that flight upon the approach of patrolling police officers in high crime areas provided articulable suspicion for a Terry stop. Harris v. State, 205 Ga. App. 813 (1), 814 (423 SE2d 723). The trial court erred in granting defendant’s motion to suppress evidence.

Judgment reversed.

Pope, C. J., Cooper and Andrews, JJ., concur. Beasley, P. J., concurs specially. Birdsong, P. J., Johnson, Blackburn and Smith, JJ., dissent.

Beasley, Presiding Judge,

concurring specially.

I concur, based on the analysis articulated plus the following. Although the trial court found that the officer did not observe any frantic movement or immediate flight, a cautious easing out of the location to allay suspicion could in fact arouse it. A reasonable inference is that the driver knew the policeman was watching, as the person on the street appeared to make a gesture alerting the driver to the police presence. Whether the driver’s exit was “immediate” and hurried or not, one cannot overlook that the person who alerted him had been standing on the street corner in a known high crime and drug area at 2:00 a.m. when the business establishments were closed. Due to the circumstances, including the officer’s observations in past situations, he suspected a drug transaction.

The totality of the circumstances is to be taken into account. They may not be, and likely will not be, identical to those in any other cases. The question is whether the circumstances in this case constitute a reasonable suspicion of a drug transaction in progress. “ ‘An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)’ [Cit.]” Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987). The factual indicators were sufficient to support the officer’s suspicion as a reasonable one, thus justifying a brief stop to determine whether or not what he suspected as fact, was indeed fact. The Fourth Amendment right against unreasonable seizures was not violated.

Decided December 3, 1993

Reconsideration denied December 20, 1993

Kenneth W. Mauldin, Solicitor, Ralph W. Powell, Jr., Assistant Solicitor, for appellant.

McArthur & McArthur, John J. McArthur, Sara M. McArthur, for appellee.

Johnson, Judge,

dissenting.

I would affirm the trial court’s grant of Savage’s motion to suppress the intoximeter results. “Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.” (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993). It is undisputed that the officers did not observe Savage committing any traffic violations. Moreover, while the officer testified that he thought that a drug transaction had taken place or was about to take place between Savage and the pedestrian, the fact that he did not observe any frantic movement, immediate flight, or the exchange of money or goods contradicted his suspicion. In my view, the reasons articulated by Smith for this suspicion simply did not justify a stop of the vehicle as a matter of law. In fact, the reasons given amounted to nothing more than a hunch. Compare Polke v. State, 203 Ga. App. 306, 309 (1) (417 SE2d 22) (1992) (where the defendant’s flight justified an investigative stop); compare also Jackson v. State, 191 Ga. App. 439, 440 (1) (382 SE2d 177) (1989) (where the defendant’s apparent concealment of something under the floorboard upon seeing police officers approach the car justified an investigative stop).

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


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A1180.
    BAKER v. THE STATE.
    (439 SE2d 668)
   Cooper, Judge.

Appellant was convicted of child molestation (five counts), aggravated child molestation (two counts) and statutory rape (one count). The offenses occurred against two victims, both of whom were twelve years old. Appellant appeals from the entry of judgment on the verdict.

Construed in a light to support the verdict, the evidence adduced at trial reveals that appellant had been a boarder in the home of Judy Long, the mother of T. A. L., one of the victims. T. A. L. confided in her mother that she was uncomfortable with appellant living in the home, and Mrs. Long subsequently learned of various instances of alleged sexual abuse involving appellant and her daughter. During an interview at the sheriff’s department, T. A. L. revealed that over the course of a year, appellant performed a series of acts which began with appellant touching her breasts and her vagina, progressed to the touching of her vagina with appellant’s mouth and eventually led to intercourse. A physician who examined T. A. L. testified that he observed a recently healed tear in T. A. L.’s vaginal area and concluded, based on his examination and T. A. L.’s account of the course of events, that there was “probable sexual abuse.” The sheriff’s department also interviewed D. S. H., a friend of T. A. L.’s, and learned that when D. S. H. was on an overnight visit with T. A. L., appellant entered the room where the girls were sleeping and performed similar acts on D. S. H., including fondling her breasts with his hands, touching her vagina with his hands and mouth and getting on top of her and placing his penis between her legs. Both victims testified at trial regarding the various alleged acts.

Following his arrest, appellant confessed to committing the sexual acts with the two victims. However, appellant testified at trial and denied committing any of the acts of which he was accused and stated that he confessed to two of the charges out of fear of receiving a life sentence and with the thought that if he confessed and entered a negotiated plea that he would fare better than going to trial. Appellant received eight consecutive sentences totaling 180 years.

1. In his first enumeration of error, appellant contends the trial court erred in sentencing appellant to consecutive sentences. Relying on OCGA § 16-1-6, appellant argues that several of the offenses should merge since, as to each victim, the alleged acts occurred on one specific occasion. However, “the crimes for which he was convicted arose from . . . separate acts as a matter of fact. OCGA § 16-1-6 (1). . . . [N]o elements of each offense are necessarily elements of the other. [Cit.]” Bryant v. State, 204 Ga. App. 856, 857 (2) (420 SE2d 801) (1992). With regard to T. A. L., appellant was convicted of two counts of child molestation based on his oral manipulation of her breasts and fondling the vagina, one count of aggravated child molestation by oral sodomy and statutory rape based on sexual intercourse with a female under fourteen years of age. As to D. S. H., appellant was convicted of three counts of child molestation based on his fondling of her breasts and vagina and genital placement on the victim and one count of aggravated child molestation by oral sodomy. Accordingly, the trial court did not err in entering separate sentences for each offense. Bryant, supra; Harris v. State, 198 Ga. App. 503, 506 (10) (402 SE2d 62) (1991), reversed on other grounds, 261 Ga. 386 (405 SE2d 482) (1991).

2. Appellant also enumerates as error the admission of his confession, contending that it was not voluntarily given because it was induced by fear, occurring during a lengthy post-arrest interview in which the deputy threatened him with a life sentence. See OCGA § 24-3-50. The trial court held a Jackson-Denno hearing during which the sheriff’s deputy who interviewed appellant following his arrest testified that before appellant confessed, he was fully advised of his Miranda rights. The deputy further testified that the life sentence was merely mentioned in a larger discussion of the plea bargaining process, initiated by appellant, during which the deputy also stated that she had no way of knowing what negotiated plea the trial judge ultimately might accept. Following this discussion, appellant paused for a few minutes, then declared that he wanted to plead guilty and proceeded to confess to the acts as alleged by the victims. Testifying in his own behalf, appellant stated that in the discussion of the plea bargaining process, the deputy told him that she and the judge were good friends; that she would make sure he got a life sentence and that the only way he might get a lighter sentence was to tell her what really happened. The trial court found that appellant was fully advised of his Miranda rights, that he knowingly and voluntarily waived them and that he was not threatened or promised anything to waive his rights. Although the deputy may have been in error in her belief that a life sentence might be imposed upon conviction of the offenses with which appellant was charged, we conclude based upon our review of the entire record that such error did not render the confession inadmissible. “ ‘Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. [Cits.]’ [Cit.]” Hunter v. State, 204 Ga. App. 25, 26-27 (4) (418 SE2d 402) (1992). Since the trial court weighed the credibility of witnesses and apparently believed the deputy’s testimony, we cannot say that the court’s finding was clearly erroneous. Hayes v. State, 203 Ga. App. 143, 145 (4) (416 SE2d 347) (1992).

3. Appellant contends the court erred in allowing witnesses to testify regarding out-of-court statements made by the victims without sufficient indicia of reliability.

“The trial court has broad discretion in the admission of evidence . . . , and may duly admit evidence subject to an adequate foundation for admissibility being subsequently established by the proponent. ‘The object of all legal investigation is the discovery of truth,’ (OCGA § 24-1-2) and as long as sufficient evidence of indicia of reliability appears in the record either before or after the introduction of the child’s out-of-court statements, the fair trial rights of the defendant are adequately protected. Thus, if the record contains sufficient evidence of ‘indicia of reliability,’ we would not reverse the correct ruling of the trial court regardless of the reason given. . . . [Cit.]” Gregg v. State, 201 Ga. App. 238, 240 (3a) (411 SE2d 65) (1991). In Gregg, we set forth several factors which may be considered to determine “the existence or absence of the requisite degree of trustworthiness” in a child’s statement. Id. at 240 (3b). Examination of the trial transcript in light of those factors establishes a showing of sufficient indicia of reliability as to the victims’ out-of-court statements which were testified to at trial in accordance with OCGA § 24-3-16. Moreover, the record also shows that the victims were “present at trial, testified as . . . court witness [es], and [were] subject to examination and cross-examination by appellant and the State. Thus, appellant had every conceivable opportunity to examine and cross-examine the child[ren] in the presence of the jury, regarding the child[ren]’s memories] of and the circumstances surrounding [their] making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the child [ren]’s demeanor [s] in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to appellant’s right of fair trial, and provided appellant full opportunity for confrontation.” Id. at 241 (3c). Therefore, the court did not err in admitting the testimony.

4. Appellant enumerates as error the court’s exclusion of certain evidence regarding T. A. L.’s prior sexual behavior. The evidence consists of the deputy’s testimony regarding a statement made by appellant about a sexual encounter between T. A. L. and a boy named “Bo” and references in a letter written by Judy Long to her inability to trust T. A. L. alone with boys. The trial court excluded the deputy’s testimony as hearsay and held that none of the various exceptions to the rule permitted admission of the statement. The letter was excluded as an improper reference to the victim’s sexual history. As a general rule, in child molestation cases, “evidence as to the victim’s reputation for nonchastity is not admissible. [Cit.]” Vargas v. State, 184 Ga. App. 650 (1) (362 SE2d 461) (1987). OCGA § 24-2-3 similarly excludes such evidence in rape cases. “The intent of the statute is to exclude evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused. [Cits.]” Lemacks v. State, 207 Ga. App. 160, 161 (427 SE2d 536) (1993). Appellant contends that Lemacks supports the admission of the evidence. However, in Lemacks, this court determined that evidence of the victim’s prior sexual molestation was not merely evidence of the victim’s character but was relevant to a determination of the guilt or innocence of the defendant; thus, the evidence was improperly excluded at trial. On the other hand, in the instant case, the evidence excluded by the trial court relates purely to the victim’s past sexual behavior and character, not appellant’s guilt or innocence. Therefore, it was properly excluded.

5. Finally, appellant raises the general grounds. Examination of the evidence demonstrates that a rational trier of fact could have found appellant guilty of the offenses with which he was charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur specially.

Beasley, Presiding Judge,

concurring specially.

I concur but am troubled, in connection with Division 2, about the misinformation given by the officer which apparently contributed to the defendant’s decision to make a confession. There is no evidence that the officer knew the information was erroneous. In fact, the officer did not know at that time what charges would be placed against defendant. Apparently she was merely guessing about the possible sentence defendant might face. Whether deliberate or not, however, the focus is on its effect on defendant’s confession. Did it render it involuntary?

The law answers in the negative. In Moore v. State, 230 Ga. 839 (199 SE2d 243) (1973), the police officers interrogating the defendant falsely told him that they had recovered the murder weapon. The defendant contended that his confession was inadmissible as it was made in response to the officers’ fraudulent statement. The Court held that “ ‘[t]he employment of any artifice, deception, or fraud to obtain a confession does not render it inadmissible, if the means employed are not calculated to procure an untrue statement. Accordingly, the fact that a confession was procured by the employment of falsehood by a police officer, detective, or other person does not alone exclude it, where not calculated to do other than elicit the truth . . . .’ [Cit.]” Id. at 840. This holding was affirmed in subsequent cases, including Jacobs v. State, 133 Ga. App. 812 (212 SE2d 468) (1975), and McLeod v. State, 170 Ga. App. 415 (317 SE2d 253) (1984).

The trial court was thus authorized to conclude that the belief that a life sentence could be imposed on defendant for his deeds did not constitute either the “hope of benefit” or the “fear of injury” to be derived from confessing which renders a confession involuntary. OCGA § 24-3-50.

Decided November 19, 1993

Reconsideration dismissed December 20, 1993.

Watson & Bott, Albert L. Watson III, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary Jane P. Melton, Assistant District Attorney, for appellee.

Compare Napue v. Illinois, 360 U. S. 264 (79 SC 1173, 3 LE2d 1217) (1959), which held that it was a denial of due process for the state knowingly to allow the jury to consider false testimony, without correction, as a basis for finding guilt.

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


text:
    A93A1223.
    JOHN W. ROOKER & ASSOCIATES, INC. v. WILEN MANUFACTURING COMPANY, INC.
    (439 SE2d 740)
   Cooper, Judge.

Appellant-plaintiff John W. Rooker & Associates, Inc. (Rooker) entered into a construction contract with appellee-defendant Wilen Manufacturing Company, Inc. (Wilen) for services to be performed in the erection of Wilen’s new manufacturing site. The scope of the written agreement was modified as work progressed, although not every change order was in writing. Wilen refused to pay the final invoice, and Rooker brought this action alleging breach of contract and fraud in the inducement. Specifically, appellant alleged that appellee entered into the agreement with the fraudulent intent to expand the scope of the work without intending to pay for the additional services. In support of this allegation of fraud, appellant sought to introduce the circumstances of unrelated contractual disputes that appellee had had which purportedly evinced fraudulent intent. Appellee successfully moved in limine to exclude this evidence as irrelevant. However, the trial court timely certified its order for immediate review, OCGA § 5-6-34 (b), and appellant’s application for interlocutory appeal was granted by this court. A timely notice of appeal was filed and Rooker appeals from the order of the trial court prohibiting it from “introducing into evidence any disputes, disagreements, litigation, or arbitration proceedings, identified by [appellant], involving contracts or transactions entered into by [appellee] or by Joseph M. Wilen, individually, other than the contract entered into between [appellant] and [appellee] in this proceeding.”

“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.” OCGA § 24-2-2. “In civil cases, [however,] such evidence is always admissible, when the nature of the action involves the general character of the party, or goes directly to affect it. And whenever a particular trait of character is involved in the matter charged against the defendant, there the character of the party, in that particular trait, is put in issue and may be given in evidence. We cannot doubt but that the character of the defendant, for want of integrity and trustworthiness, was put directly in issue by the [allegation of fraudulent inducement to enter into oral change orders].” McNabb v. Lockhart & Thomas, 18 Ga. 495, 512 (11) (1855). “Evidence that parties charged with having been engaged in a fraudulent scheme to defraud laborers and materialmen in a building transaction had proposed, or had engaged in, similar fraudulent schemes, is admissible to show fraudulent intent in the transaction in controversy. To render such evidence admissible, it must be shown that the other transactions were fraudulent, and it must appear that they were so connected in point of time and otherwise with the one in issue as to make it apparent that all were proposed or carried out in pursuance of a common fraudulent purpose. [Cits.]” Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240, 243-244 (1) (155 SE 1) (1930). “ ‘Similar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive may reasonably be supposed to exist, with a view to establish the intent of the defendant in respect to the matters charged against him in the [complaint]. [Cits.] . . . Intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. [Cits.] Other transactions showing fraud are admissible to show intent. [Cits.]’ [Cits.]” Tapley v. Youmans, 95 Ga. App. 161, 175 (7) (97 SE2d 365) (1957). See also Farmer v. State, 100 Ga. 41 (2) (28 SE 26) (1896) (prior acts admissible against one on trial for being a common cheat and swindler). “The issue being one of fraud, the range of circumstances ought to be very wide. . . . [Cit.]” Cowan v. Bank of Rockdale, 159 Ga. 123, 125 (2) (125 SE 194) (1924). “Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” OCGA § 23-2-57. “ ‘(I)t is apparent that the trial court’s ruling [on appellee’s motion in limine] rests upon [the] erroneous legal theory [that the alleged similar transactions could not be relevant]. The trial court’s reliance upon an erroneous legal theory requires reversal. (Cits.)’ [Cit.]” All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233-234 (2) (387 SE2d 429) (1989).

Decided December 3, 1993

Reconsideration denied December 20, 1993.

Action on contract. Fulton State Court. Before Judge Carnes.

Hishon & Burbage, Robert H. Hishon, Hugh M. Worsham, Jr., for appellant.

Schnader, Harrison, Segal & Lewis, C. Wilson Dubose, Griffin, Cochrane & Marshall, Terrence L. Croft, Warren N. Sams III, for appellee.

Judgment reversed.

Beasley, P. J., and Smith, J., concur in judgment only.


text:
    A93A1269, A93A1417.
    THOMPSON v. HARDY CHEVROLET-PONTIAC-BUICK, INC. (two cases).
    (439 SE2d 689)
   Cooper, Judge.

This is the second appearance of this tort claim by appellant-plaintiff, the passenger of a vehicle who was injured when the brakes failed and the vehicle left the road. See Thompson v. Hardy Chevrolet-Pontiac-Buick, 203 Ga. App. 499 (417 SE2d 358) (1992), for the underlying facts. The following procedural history is relevant to the resolution of the instant appeals: Appellee-defendant Hardy Chevrolet, the dealership which sold the vehicle, was named as a joint tortfeasor along with the driver and the owner of the vehicle. The case proceeded to trial against all defendants. At the close of the evidence, Hardy Chevrolet was granted a directed verdict. The jury returned a verdict against the remaining defendants, awarding appellant $47,500 for his injuries. This court affirmed the judgment against the driver and the owner. However, the grant of the directed verdict in favor of Hardy Chevrolet was reversed and the case remanded for a new trial. Thompson v. Hardy Chevrolet-Pontiac-Buick, supra at 503 (1). Before the retrial, Hardy Chevrolet claimed that the prior verdict and judgment against the other joint tortfeasors in favor of Thompson precluded him from relitigating the amount of his damages. The trial court took this under advisement, and the case proceeded to trial. The second jury returned a verdict against Hardy Chevrolet in the amount of $110,000. However, in molding the judgment, the trial court concluded that Thompson was entitled only to the amount of damages awarded by the first jury, $47,500, further reduced by payments made by the other joint tortfeasors. In Case No. A93A1417, Thompson appeals from the final judgment entered against Hardy Chevrolet. In Case No. A93A1269, he appeals from various interlocutory orders culminating in the final judgment as reduced. As the appeals raise identical enumerations of error, they are hereby consolidated for disposition in this single opinion.

Case No. A93A1417

1. Appellant contends that the trial court erred by limiting the amount of his recovery against Hardy Chevrolet to the amount of damages as established by the first jury and by failing to enter judgment based upon the $110,000 verdict returned in this second trial. We hold that the trial court correctly applied the doctrine of collateral estoppel or issue preclusion to permit Hardy Chevrolet to plead and prove the prior judgment against the other joint tortfeasors as a limitation on the amount of damages Thompson may recover against Hardy Chevrolet for the same injuries. “ ‘The trial court was correct in concluding that the (prior) judgment was conclusive and binding upon (appellant as to the amount of his damages), even [if], strictly speaking, (appellee) [had not been] in privity with the (defendant^]) in that action [due to the erroneous grant of appellee’s motion for directed verdict]. The modern trend in applying the (doctrine) of. . . collateral estoppel (or issue preclusion) is to confine the privity requirement to the party against whom the plea is asserted, so as to permit one who is not a party to the judgment to assert the judgment against a party who is bound by it, and thus to preclude relitigation by that party of issues which have been determined adversely to him in the prior action, even though if the issue had been decided in his favor in the prior action, he would not have been entitled to assert the prior adjudication in a subsequent action against a stranger to the judgment. (Cits.)’ [Cits.]” Green v. Thompson, 208 Ga. App. 609, 610 (431 SE2d 390) (1993). Appellant’s contention that this issue was untimely raised by appellee is without merit. The entry of a pretrial order before the first trial would not preclude the trial court from considering on remand the effect of the prior judgment to the extent it had been affirmed on appeal. “The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedents.” Ga. Const, of 1983, Art. VI, Sec. V, Par. III.

2. Remaining enumerations have been considered and are found to be without merit.

Decided November 30, 1993

Reconsideration denied December 20, 1993

Kyle Yancey, for appellant.

Gray, Gilliland & Gold, David S. Currie, Thomas J. Lehman, for appellee.

Case No. A93A1269

3. Case No. A93A1269, having been considered, is found to have been rendered moot and is dismissed.

Judgment affirmed in Case No. A93A1417. Appeal dismissed in Case No. A93A1269.

Smith, J., concurs. Beasley, P. J., concurs in judgment only.


author:
Andrews, Judge.
      Pope, Chief Judge,

text:
    A93A1303.
    ICI AMERICAS, INC. v. BANKS et al.
    (440 SE2d 38)
   Andrews, Judge.

This products liability action arose from the death of a nine-year-old child, who died after consuming a rat poison product manufactured by ICI Americas, Inc. (ICI). ICI manufactured a rat poison called Talon-G, which was registered by the Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC § 136-136y (FIFRA). As part of the FIFRA packaging and labeling requirements, Talon-G was packaged in a container with EPA-approved labeling, which displayed warnings cautioning users that it should be kept out of reach of children; that it may be harmful or fatal if swallowed, and that it be stored in its original container in a location inaccessible to children. ICI sold Talon-G only to professional pest control operators. The plaintiffs, the child’s parents, produced evidence that a pest control company servicing the Boys Club placed the Talon-G in an unmarked, unlabeled container stored in an unlocked cabinet at the Boys Club. The poison was apparently found in the container at the Boys Club by the child, who consumed a quantity of it.

After the pest control company and the Boys Club settled claims against them, the plaintiffs proceeded to trial against ICI on negligence and strict liability theories claiming Talon-G was negligently or defectively designed such that it was unreasonably dangerous to children, and that it was inadequately labeled. There was evidence that the danger the rat poison would be misused by being consumed by children was foreseeable to ICI, and that ICI withheld data from the EPA on instances of human exposure to the product. Other evidence showed that the danger could have been reduced, and the product made safer by the addition of ingredients which would cause humans, but not rats, to reject it as bitter tasting, or vomit after ingesting it. The jury found for the plaintiffs and awarded $510,000 in compensatory damages and $1,000,000 in punitive damages. Because plaintiffs had already received more than $510,000 in compensatory damages in their settlement with the other defendants, their actual recovery from ICI was reduced to the $1,000,000 awarded as punitive damages.

1. ICI contends the trial court erred in denying its motion for a directed verdict because plaintiffs failed to prove that its product was defective or that it was negligent. “In the subject product-design case, only semantics distinguishes the cause of action for negligence and a cause of action pursuant to OCGA § 51-1-11 [claiming strict liability for defective design].” Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 848 (321 SE2d 350), aff’d 254 Ga. 201, 202 (326 SE2d 436) (1985). In both causes of action the manufacturer’s conduct is judged by the traditional duty of reasonable care. Id.; Honda Motor Co., Ltd. v. Kimbrel, 189 Ga. App. 414, 418 (376 SE2d 379) (1988); Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44 (248 SE2d 15) (1978); Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 171 (393 SE2d 64) (1990); Vax v. Albany Lawn & Garden Center, 209 Ga. App. 371 (433 SE2d 364) (1993).

Rat poison is a useful rodent control product, which as designed and manufactured for the purpose of being eaten by rats is obviously a poisonous substance designed to kill rats. Because of its poisonous character, it may also harm or kill human beings who eat it. The poisonous character of rat poison is an inherent characteristic necessary to the usefulness of the product as a rat killer. The product is not defectively or negligently designed simply because it is poisonous, nor solely because it may be possible for the manufacturer to make the product safer by reducing the danger resulting from its poisonous character. Center Chemical Co. v. Parzini, 234 Ga. 868, 870 (218 SE2d 580) (1975); Weatherby, supra. “[OCGA § 51-1-11] imposes strict liability for defective products. It does not attach the condition that the defective product must be ‘unreasonably dangerous’ which limitation is included in the classic definition of strict liability. We can not read this into the statute. Strict liability is not imposed under the statute merely because a product may be dangerous. Many products can not be made completely safe for use and some can not be made safe at all. However, such products may be useful and desirable. If they are properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions, they can not be said to be defective. To hold otherwise would discourage the marketing of many products because some danger attended their use. We find nothing in [OCGA § 51-1-11] that makes a manufacturer strictly liable for such products absent a defect.” Center Chemical Co., supra at 870 (question was whether industrial drain cleaner containing almost pure sulfuric acid was defective). “In a products liability case predicated on negligence, the duty imposed is the traditional one of reasonable care and the manufacturer need not provide, from a design standpoint, a product incapable of producing injury. Georgia law does not require a manufacturer to occupy the status of an insurer with respect to product design. . . . The manufacturer is under no obligation to make a [product] accident proof or foolproof, or even more safe. The public policy enunciated by the legislature is a predominant factor in our determination.” (Citations and punctuation omitted.) Weatherby, supra at 170.

“Generally, [i]f a manufacturer does everything necessary to make the [product] function properly for the purpose for which it is designed, if the [product] is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands.” (Citations and punctuation omitted.) Poppell v. Waters, 126 Ga. App. 385, 387 (190 SE2d 815) (1972); Hunt, supra at 46. “[I]f the product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril.” Coast Catamaran, supra at 847. Moreover, in Georgia under the “open and obvious” or “patent danger” rule a product is not defectively designed if the absence of a safety device is open and obvious, and there is no duty to warn of an obvious danger or one generally known. Ream Tool Co. v. Newton, 209 Ga. App. 228-229 (433 SE2d 67) (1993). Under the “open and obvious” rule “[a]ctual knowledge by the user of the danger posed by a product is not necessary. . . . [Rather, in deciding] whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view of the product, and the subjective perceptions of the user or injured party are irrelevant.” (Emphasis in original.) Weatherby, supra at 171-172. The manufacturer is generally not liable for injury resulting from an abnormal use of the product, unless the particular unintended use was foreseeably probable. Mann v. Coast Catamaran Corp., 254 Ga. 201, 202 (326 SE2d 436) (1985); Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (319 SE2d 470) (1984). However, “if in the normal functioning of a product as designed such functioning creates a danger or peril that is not [objectively] known to the user or bystander, then the manufacturer is liable for injuries proximately caused by such danger. Thus, the manufacturer of a product which, to its actual or constructive knowledge, involves danger to users has a duty to give warning of such danger.” (Citations and punctuation omitted.) Ford Motor Co., supra at 335. “A duty to warn of danger in the use of a product extends only to the use of the product in the manner reasonably contemplated and anticipated by the manufacturer. When the use to which the product was being put at the time of injury is not that originally intended by the manufacturer, the determination of whether strict liability may be asserted as a viable theory of recovery or whether the manufacturer is insulated from liability because the use of the product was ‘abnormal’ and intervening depends, initially, upon the foreseeability that the product would be put to that use.” Talley v. City Tank Corp., 158 Ga. App. 130, 137 (279 SE2d 264) (1981). Foreseeability in this context means that which would be foreseeably probable or objectively reasonable to expect, not merely what might occur. Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 704 (294 SE2d 541) (1982); Ford Motor Co., supra at 335.

From the foregoing principles it may be gathered that, where a product in its normal functioning, as designed, creates a latent danger, arising from a foreseeably probable unintended use, and the user or injured party could not from an objective point of view appreciate the latent danger, the manufacturer may be held liable on a claim of defective or negligent design for failing to adequately warn of the foreseeable danger. Ford Motor Co., supra; Poppell, supra; Center Chemical Co., supra; see Mann v. Coast Catamaran, supra. In the present case, evidence showed that the product performed as intended as an effective rat killing poison. However, the facts were sufficient for a jury to conclude that in the normal use of Talon-G as a rat poison, the product, as designed, created a latent danger that it would be consumed by children, which danger could not be appreciated by children who mistook it as food, and that this dangerous unintended use was foreseeably probable to ICI. Compare Weatherby, supra at 173, 176 (discussing “open and obvious” versus latent danger as applied to the objective appreciation of such danger by an injured child); Greenway v. Peabody Intl. Corp., supra (not reasonably foreseeable to manufacturer that child killed when trapped between dumpster doors would play inside dumpster).

This analysis makes clear that under Georgia law, whether ICI may be liable under the negligence and strict liability claims made by plaintiffs depends on whether it gave adequate warning of the foreseeable danger. Evidence of a foreseeable latent danger, combined with other evidence that ICI could have made the product safer by reducing the danger of misuse by children, was not alone sufficient to support a finding that the product was defectively or negligently designed. There is no requirement imposed by statute or common law that would support the claim that Talon-G was defectively or negligently designed solely because ICI did not make the product safer, or attempt to incorporate the safety features in evidence. There is no evidence that the product, as designed, failed to comply with any specific federal or state standard. “ ‘To impose upon a manufacturer the duty of producing an accident-proof product may be a desirable aim, but no such obligation has been — or, in our view, may be — imposed by judicial decision.’ ” Hunt, supra at 47; Rhodes v. R. G. Indus., 173 Ga. App. 51, 53 (325 SE2d 465) (1984) (revolver not defective for lack of safety device that would have prevented three-year-old child from discharging it).

2. Although plaintiffs presented expert testimony that the warnings given by ICI on the labeling of the product were inadequate, the labeling and warning claims should not have gone to the jury because these issues were preempted by FIFRA. Labeling of rodenticides is governed by FIFRA, which provides that a state “shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” 7 USC § 136v (b). “To the extent that the [plaintiffs’] claims require a showing that [ICI’s] labeling or packaging should have included additional, or more clearly stated, warnings, those claims are pre-empted [by FIFRA].” (Citations and punctuation omitted.) Papas v. Upjohn Co., 985 F2d 516, 518 (11th Cir. 1993). Even claims that warnings other than those on labeling or packaging were not given is preempted by FIFRA. “[A]ny claim that point-of-sale signs, consumer notices, or other informational materials failed adequately to warn the plaintiff necessarily challenge the adequacy of the warnings provided on the product’s labeling or packaging. If a pesticide manufacturer places EPA-approved warnings on the label and packaging of its product, its duty to warn is satisfied, and the adequate warning issue ends.” Id. at 519. The plaintiffs’ claims that in obtaining an EPA-approved label and packaging, ICI failed to disclose data regarding incidents of human exposure to Talon-G, may subject ICI to FIFRA penalties for misbranding (see 7 USC § 136j (a) (1) (E)), but whether the approved labeling is inaccurate or incomplete, and if so what changes should be made is a matter for determination by the EPA, not a state court. Id. at 519.

The plaintiffs’ product design claims are ultimately grounded in the issue of adequate warning, and the warning issue is pre-empted by federal law under FIFRA. Since it is undisputed that the product at issue carried EPA-approved FIFRA warnings, ICI was entitled to a directed verdict.

3. In light of our conclusions in Divisions 1 and 2, we need not address ICI’s additional enumerations of error.

Judgment reversed.

Birdsong, P. J., Beasley, P. J., Johnson and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., dissent.

Pope, Chief Judge,

dissenting.

Plaintiffs’ nine-year-old son, Mario, discovered some rat poison pellets in a container behind a counter at a Boys Club and thought they were candy. The poison, an anticoagulant that kills by thinning the blood and breaking down the walls of the blood vessels, was slow acting by design. Mario showed no symptoms until four days later, when his nose began to bleed. After several more days, Mario’s condition continued to worsen and he was put in the hospital for blood transfusions. By the time the doctors discovered that Mario had ingested rat poison, it was too late for the antidote to work.

Although it was foreseeable that the rat poison would be consumed by children who mistook it for candy, ICI failed to add an emetic or an aversive agent to the product. Plaintiffs produced expert testimony that an emetic will cause any human who ingests the poison to immediately vomit, thereby expelling the poison, but will not have the same effect on rats because they do not have a vomit reflex. They also submitted expert evidence that the aversive agent Bitrex would make the poison taste bad to children but would not keep rats from eating it; that Bitrex was in use in a variety of products as early as the late 1970s; and that there was no reason ICI could not have begun testing its use in rat poison at that time. Viewing this evidence in a light most favorable to plaintiffs (this appeal is from a jury verdict for plaintiffs), a jury could find that ICI’s failure to add an emetic or aversive agent was unreasonable.

The majority nonetheless holds that ICI cannot be liable because its product had an adequate warning label, citing Center Chemical Co. v. Parzini, 234 Ga. 868, 870 (218 SE2d 580) (1975) for the proposition that a product need not be perfectly safe as long as it is packaged with an adequate warning label. However, there was no evidence in Center Chemical that the product in question could have reasonably been made safer. In this case, on the other hand, a jury could (and did) find that the product could have been made safer, without losing its effectiveness, if defendant had taken reasonable steps to do so. Center Chemical holds that a manufacturer should not be liable for producing a necessarily dangerous but useful product as long as the product is packaged with an adequate warning label; it does not hold that a manufacturer who can take reasonable steps to make its dangerous product safer can avoid liability by instead placing a warning label on its package. Thus, while I agree that plaintiff’s inadequate labeling claim is pre-empted, I would hold that ICI’s directed verdict motion was properly denied with respect to plaintiffs’ claims based on design defect and negligence.

Decided December 3, 1993

Reconsideration denied December 20, 1993

Rogers & Hardin, Phillip S. McKinney, Susan D. Burnell, Schweber, Izenson & Anderson, Barry L. Anderson, Hagler, Hyles & Adams, M. Stephen Hyles, for appellant.

Richard A. Childs, Webb, Carlock, Copeland, Semler & Stair, Wade K Copeland, Kelly, Denney, Pease & Allison, Ray L. Allison, Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, for appellees.

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

       Based on the portion of FIFRA quoted by the majority, at least four federal circuits have ruled that where a defendant’s label has been approved by the EPA, the federal agency charged with responsibility for administering FIFRA, state law tort claims alleging inadequate labeling are pre-empted because they require the plaintiff to show that the defendant failed to meet a standard “in addition to or different from” FIFRA requirements. See King v. E. I. DuPont de Nemours & Co., 996 F2d 1346 (1st Cir. 1993); Shaw v. Dow Brands, 994 F2d 364 (7th Cir. 1993); Papas v. Upjohn Co., 985 F2d 516 (11th Cir. 1993); Arkansas-Platte &c. v. Van Waters &c., 959 F2d 158 (10th Cir. 1992), adhered to at 981 F2d 1177 (10th Cir. 1993) upon reconsideration in light of Cipollone v. Liggett Group, 505 U. S._(112 SC 2608, 120 LE2d 407) (1992). Accord Hopkins v. CIBA-Geigy Corp., 432 SE2d 142 (N. C. Ct. App. 1993). Moreover, our Supreme Court has held that almost identical language in another statute clearly and expressly pre-empted state law tort claims based on the inadequacy of warning labels on tampons. See Poloney v. Tambrands, Inc., 260 Ga. 850 (412 SE2d 526) (1991).


author: Andrews, Judge.

text:
    A93A1305.
    HOSLEY v. DAVIDSON et al.
    (439 SE2d 742)
   Andrews, Judge.

Eddie Hosley, as administrator of the estates of his sister Barbara Wilson and her illegitimate minor son, Al-Sufi Hosley, brought this action to recover for their wrongful deaths. They died on April 26, 1989, when a vehicle in which they were passengers collided with a stalled truck which its operator, defendant Davidson, had left on an interstate highway. The truck was owned by Davidson’s employer, Computer Transport Company, and insured as to liability by North-brook Property & Casualty Insurance Company. Computer Transport and Northbrook were also named as defendants.

On July 27, 1992, Davidson moved for summary judgment on the basis that the claims for funeral and burial expenses and for the full value of the decedents’ lives were not brought by the proper party plaintiffs within the applicable two-year statute of limitation, OCGA § 9-3-33. On July 29, the other defendants filed a motion for summary judgment on the same ground.

On September 25, plaintiff Hosley filed a motion seeking leave to amend the complaint to add as a plaintiff, Wilson’s sole surviving child, Stephanie Hosley. Hosley acknowledges that the child is the proper person to prosecute the action for Wilson’s wrongful death. Hosley did not serve the motion on Davidson until September 28, at which time he also filed a brief in opposition to defendants’ motions for summary judgment, requesting that the motion for leave to amend be granted. On October 20, a consent order was entered extending the time for defendants’ response to plaintiff’s motion for leave to amend until November 6. Davidson filed his response on November 5.

Oral arguments on Davidson’s motion for summary judgment were heard on November 19. Also on that date, Davidson filed a motion to strike Hosley’s response, including his motion to amend the complaint, since it was not filed within 30 days of the filing of the motion for summary judgment, as required by Uniform State Court Rule 6.2. In so arguing, Davidson relied upon Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140 (1) (424 SE2d 85) (1992). He stated that he did not file the motion to strike until the day of the hearing because he did not become aware of Winchester earlier.

Although Hosley had not requested an extension of time for filing a response to Davidson’s motion for summary judgment, at the hearing the court suggested that Hosley’s counsel request a retroactive extension from Davidson’s counsel. Davidson’s counsel declined this request. The court concluded that it had no choice but to grant Davidson’s motion to strike. Thereafter, the court considered the record and granted Davidson’s motion for summary judgment.

1. In his first enumeration of error, Hosley contends that the court erred in granting Davidson’s motion to strike. Although a plaintiff has a right to file a motion to amend his complaint separate from his response to a defendant’s motion for summary judgment, in this case, unlike Winchester, supra, the motion to amend has been treated as part of the response.

Uniform State Court Rule 6.2 provides, “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion, or on the date of the hearing (if one is held) whichever occurs sooner.” (Emphasis supplied.)

“The presence of the conditional language in the rule clearly gives the trial judge discretion regarding the period of time by which a party must respond to a motion in a civil case.” Kidd v. Unger, 207 Ga. App. 109, 110 (2) (427 SE2d 82) (1993). In this case, there is no order by the court that extends or limits the 30-day period. Thus, in the absence of a court-ordered exception, the period for filing a response was 30 days. The rule does not give the court unfettered authority to excuse late filings, instead it gives the court the discretion to extend or limit the filing period. In the absence of exercised discretion, the guidelines are clear. In this case, Hosley’s failure to comply with the rule’s deadline warranted the striking of his response.

Because of our conclusion in this regard, we need not address Hosley’s arguments regarding his motion to amend the complaint.

2. Based upon evidence that the collision caused the child’s death before the mother’s, although only by seconds, Hosley argues that during the fleeting period between their two deaths, the mother had a cause of action for the child’s wrongful death which survived to him as her. representative. Hosley claims he is the proper party to recover for the wrongful death of the child, although the child was survived by his biological father, Ismael Jamaal.

Hosley relies upon Caylor v. Potts, 183 Ga. App. 133 (1) (358 SE2d 291) (1987), in which a divorced father brought an action for the wrongful death of his minor child. The father died during the pendency of the action. The mother was subsequently substituted as plaintiff. After entering into a settlement, she brought an action against the administrator of the father’s estate seeking a declaration that the estate was not entitled to a one-half share of the settlement proceeds. This court affirmed the trial court’s grant of the administrator’s motion for judgment on the pleadings. But see OCGA § 19-7-1 (c) (2) (C) and (c) (6).

The Court in Caylor determined that two statutes governed the rights of recovery of the parties — OCGA § 19-7-1 (c) and OCGA § 9-2-41. OCGA § 19-7-1 (c) is part of Chapter 7 (governing parent and child relationships generally), of Title 19 (governing domestic relations). It provides, in pertinent part:

“(1) In every case of the homicide of a child, minor or sui juris, there shall be some party entitled to recover the full value of the life of the child, either as provided in this Code section or as provided in Chapter 4 of Title 51.

“(2) If the deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents, if any, given such a right by this paragraph . . .

“(B) If either parent is deceased, the right shall be in the surviving parent. . . .”

OCGA § 9-2-41, which governs the survival of tort actions generally, provides in pertinent part:

“[No] action or cause of action for the recovery of damages for homicide, injury to the person, or injury to property [shall] abate by the death of either party. The cause of action, in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff.” (Emphasis supplied.)

The Court in Caylor noted that the words “or cause of action” were added to the first sentence of this statute in 1952 and that prior to that amendment the statute had been construed as enabling a parent’s existing right of action to recover for the homicide of a child to survive to the representative of the parent’s estate in the event of the parent’s death only if such an action by the parent was already pending at the time of the parent’s death. Id. at 133-134. The Court held that if a pending action was not extinguished by a parent’s death prior to the 1952 amendment, it would not be extinguished under the present statutory scheme.

The Court also observed that “since the passage of the 1952 amendment to the survival statute, it would appear that an existing right of action by a parent to recover for the homicide of a child will survive to the representative of the parent’s estate regardless of whether the action was filed during the parent’s lifetime.” Id. at 134.

However, in Caylor it was not necessary for the Court to hold that a cause of action which has not been brought by a parent can be brought by the representative of his estate even though the child is survived by his other parent. Such a holding would contravene OCGA § 51-4-5 (a), which was not considered in Caylor. As part of Chapter 4 (wrongful death actions) of Title 51 (torts), it provides in pertinent part: “When there is no person entitled to bring an action for the wrongful death of a decedent under Code Section 51-4-2 or 51-4-4, the administrator or executor of the decedent may bring an action for and may recover and hold the amount recovered for the benefit of the next of kin.”

Nor did Caylor consider West v. Mathews, 104 Ga. App. 57, 61 (121 SE2d 41) (1961), where a mother and daughter died in an automobile collision, the mother instantly and the daughter approximately eight hours later. This Court held that the administrator of the daughter’s estate was entitled to bring an action for the mother’s wrongful death, because the husband was deceased and there were no other children. The Court held that “[t]he 1952 amendment. . . was clear in its intent that a cause of action once accruing to a person would survive to the personal representative upon the death of such person where there was rio right of survivorship in any other person.” (Emphasis supplied.) Id.

Thus, where one of the parents of a minor child dies before instituting an action for the child’s wrongful death, the representative of that parent’s estate is not authorized to bring such an action if there is a surviving parent or other person entitled to bring it. To the extent that the reasoning and language used in Caylor are contrary, it must be disapproved. The proper person to bring this action for the child’s wrongful death is the child’s biological father and not plaintiff. Hosley does not argue that the biological father is barred from recovery. See Sapp v. Solomon, 252 Ga. 532 (2) (314 SE2d 878) (1984). He has not sought to amend the complaint to add the biological father. Nor does he argue that the father cannot be located. Cf. OCGA § 19-7-1 (c) (2) (C). Issues which would have arisen had he sought to amend or had he advanced these arguments need not be addressed.

Decided December 3, 1993

Reconsideration denied December 20, 1993

Daryl V. Yokely, for appellant.

Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., Quinton S. Seay, for appellees.

3. In a separate enumeration, Hosley claims that notwithstanding his late response, the trial court erred in granting summary judgment because summary judgment cannot be based upon a real-party-in-interest defense. He argues that this objection is a matter in abatement and a motion for summary judgment is not the proper procedural vehicle by which to adjudicate this objection. Warshaw Properties v. Lackey, 170 Ga. App. 101 (316 SE2d 482) (1984). However, as pointed out in Warshaw, in many cases it is irrelevant whether the motion by which such an objection is adjudicated is treated as a motion to dismiss or as a motion for summary judgment since the underlying basis for the grant of summary judgment may always be taken into account. See also Hammer Clinic, P. C. v. Crawley, 169 Ga. App. 522 (313 SE2d 778) (1984). Hosley has presented no reason why the procedural vehicle of the real-party-in-interest objection is determinative in this case and this argument is without merit.

4. Hosley argues that he is the proper party to bring an action for funeral and burial expenses of the decedents under OCGA § 51-4-5 (b), which provides, “[w]hen death of a human being results from a crime or from criminal or other negligence, the personal representative of the deceased person shall be entitled to recover for the funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person.” See Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 180 (2) (358 SE2d 468) (1987). The funeral and burial expenses are debts of the estate, see OCGA § 53-7-91 (2); compare Complete Auto Transit v. Floyd, 214 Ga. 232, 238 (3) (104 SE2d 208) (1958), and in his capacity as representative of the decedents’ estates, Hosley is entitled to recover these expenses under OCGA § 51-4-5 (b). See Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 772 (1) (403 SE2d 235) (1991). The court erred in granting the motion for summary judgment on this claim.

Judgment affirmed in part and reversed in part.

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