text:
    A99A1980, A99A2150.
    CROSBY et al. v. COOPER TIRE & RUBBER COMPANY; and vice versa.
    (524 SE2d 313)
   Eldridge, Judge.

Jan D. Crosby, as the widow of Bobby Ira Crosby, as the administratrix of his estate, as the mother and next friend of Kelly L. Crosby, a minor, and as an individual on her own behalf, sued Cooper Tire & Rubber Company (“Cooper Tire”) for negligent design, negligent manufacture, failure to warn, violation of the implied warranty of merchantability, and strict product liability for a defective consumer product, the left rear tire, which allegedly blew out and allegedly caused the family Ford Bronco II to roll over. On November 10, 1997, the case went to trial before a jury. On November 19, 1997, the jury returned verdicts in favor of Cooper Tire and against Mrs. Crosby.

On June 16,1991, Bobby Crosby drove the Bronco 70 miles to his parents’ home. Suddenly a loud popping sound, like a shotgun, occurred. Mr. Crosby seemed to lose control of the Bronco. The vehicle jerked to the right, turned sideways, and flipped over. Immediately prior to Mr. Crosby’s loss of control of the Bronco, the testimony was that the rubber exterior of the left rear tire tore open with an explosive, shotgun-like sound. The left rear tire had allegedly blown out. Mr. Crosby was killed, and Mrs. Crosby and Kelly were seriously injured.

Less than a month prior to the rollover, Mrs. Crosby experienced shimmying or shaking in the Bronco. She took the vehicle in for service. The right rear tire was replaced as a result of failure, and the remaining tires were rotated and balanced, including the tire placed on the left rear. The shaking problem stopped. Mrs. Crosby thought that the shaking of the vehicle was caused by problems of tire balance, need for rotation, or misalignment. On Friday, June 14, 1991, Mrs. Crosby drove the Bronco and noticed the vehicle was again shaking. The Crosbys believed that the shaking again was caused by misalignment of the tires.

The tire that allegedly blew out was an Atlas A/W radial manufactured by Cooper Tire. In 1990, Cecil Bowen sold this tire as a part of a set of four to Mr. Crosby. Shortly after the purchase of the set, one of the tires had to be replaced, because the tire had a knot or separation, which was observable only when the vehicle was on the grease rack.

Case No. A99A1980

1. Mrs. Crosby’s first enumeration of error is that the trial court erred in instructing the jury to disregard her expert’s testimony as to how the tire failure began and progressed. We agree.

At trial, Mrs. Crosby’s expert witness testified on direct examination, without objection, that a split in the inner liner of the tire occurred after the radial belts in the tire separated. The location of the split corroborated his opinion that the separation in the tire belts was due to a manufacturing defect which caused the split and that the split did not cause the belt separation from rollover impact. The expert went on to testify without objection that, immediately prior to the rollover, a “rapid air out” occurred from a burst bubble in the tire and that this air loss occurred in only one to two seconds. Rapid deflation in the left rear tire caused the tire to become softer and allowed the tire to steer to the right and have greater compliance so that the vehicle physically shifted farther in a turn and oversteered to the right, affecting the stability of the vehicle. When the tire deflated, this shift caused the driver to believe that the vehicle had changed direction, and the driver reacted by a steering change, causing a rollover.

At the end of the direct examination of this expert, the trial court took a recess. At that time, Cooper Tire raised objections that this expert witness testified to opinions not previously divulged either in two depositions or in answers to interrogatories regarding the two-second tire deflation and the reason why the impact did not cause the radial belt separation. Cooper Tire moved for the trial court to strike such testimony and to instruct the jury to disregard such opinion testimony. The trial court granted the motion to strike and instructed the jury to disregard that portion of plaintiff’s expert’s opinion.

(a) Cooper Tire failed to make its objections to the admission of plaintiff’s expert’s testimony contemporaneously with the allegedly objectionable testimony and thereby waived such grounds to object. See Goodtitle v. Roe, 20 Ga. 135, 140 (4) (1856); Burtine v. State of Ga., 18 Ga. 534, 537 (1) (1855); Nashville, Chattanooga &c. R. v. Ham, 78 Ga. App. 403, 408 (1) (50 SE2d 831) (1948).

In this case, Cooper Tire moved to strike testimony as a discovery abuse sanction after the testimony had been given without objection and at the completion of the direct examination of the expert witness. The trial court erroneously granted such motion, striking the evidence and instructing the jury accordingly. Like any other objection, a motion to strike must be made contemporaneously with the objectionable testimony, or a waiver occurs. See Sharpe v. Dept. of Transp., 267 Ga. 267, 270-271 (2) (476 SE2d 722) (1996); see also Dept. of Transp. v. Wallace Enterprises, 234 Ga. App. 1, 4 (5) (505 SE2d 549) (1998).

(b) Exclusion of relevant and material evidence from trial is an inappropriate remedy for curing*>a discovery omission or abuse. The appropriate remedies for discovery abuse are (1) postponement of trial or recess of trial in progress, pending action to procure rebuttal evidence, or (2) a mistrial, if there is no practical opportunity to make discovery and to obtain rebuttal evidence. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (5) (417 SE2d 383) (1992); Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 379 (2) (274 SE2d 761) (1980); Jones v. Atkins, 120 Ga. App. 487, 490-491 (2) (171 SE2d 367) (1969); Nathan v. Duncan, 113 Ga. App. 630, 641 (7) (149 SE2d 383) (1966).

Such abuse of the trial court’s discretion in excluding this expert’s testimony as to a manufacturing defect and causation is harmful error requiring reversal and remand for retrial.

The trial court simply did not have authority or latitude to grant [Cooper Tire’s] motion to strike [Crosby’s] expert’s [new] testimony. The trial court’s judgment must therefore be reversed for a new trial so that a jury may consider [Crosby’s expert’s] testimony.

Hunter v. Nissan Motor Co., 229 Ga. App. 729, 730 (1) (494 SE2d 751) (1997).

Since the other enumerations of error raised in the instant appeal and cross-appeal are likely to again arise on retrial, this Court will also address them. Further, many of the issues are based upon the sound exercise of the trial court’s discretion, which may change upon retrial before another trial judge. See Davis v. Glaze, 182 Ga. App. 18, 21 (6) (354 SE2d 845) (1987).

2. Crosby contends that the trial court erred in excluding Cooper Tire’s admissions as to what types of tire failures are caused by manufacturing defects. We agree in part.

Cooper Tire’s adjustment records are not hearsay but were admissions against interest of a corporation made through its agents and produced by such corporation through discovery. See Gorlin v. Halpern, 184 Ga. App. 10, 15 (5) (360 SE2d 729) (1987), rev’d on other grounds, Burgess v. Gorlin, 258 Ga. 127 (365 SE2d 405) (1988). An admission against interest by a party is original evidence and is admissible as evidence as to the issue of liability. Cannon v. Rithmire, 156 Ga. App. 360, 361-362 (2) (274 SE2d 746) (1980).

(a) Since there was a material issue of fact as to whether the radial belting separated because of a manufacturing defect or impact in a tire with 30,000 to 40,000 miles of wear, the documents from Cooper Tire’s adjustment process in general were relevant and material to show as to all tires, as a matter of causation, the difference between customer fault, i.e., service abuse such as impact damage, under- or over-inflation, or road hazard damage, or a manufacturing defect, i.e., a problem with workmanship and materials, and the irequency of such manufacturing defects occurring after 30,000 to 40,000 miles of use. Limiting instructions must be given to the jury.

(b) Further, such adjustment documents were relevant, material, and admissible to demonstrate that the same model tires with prior or subsequent serial numbers from the same manufacturing plant had substantially similar manufacturing defects in either workmanship or materials or that such model tire had whatever incidence of manufacturing defects as compared with overall production of such tire. Browning v. Paccar, Inc., 214 Ga. App. 496, 498 (1) (448 SE2d 260) (1994); Carsten v. Wilkes Supermarket &c., 181 Ga. App. 834 (1) (353 SE2d 922) (1987); Gunthorpe v. Daniels, 150 Ga. App. 113 (1) (257 SE2d 199) (1979).

(c) Prior similar manufacturing defects would also be admissible to show defects, notice, prior knowledge and causation and for purposes of punitive damages. See Mack Trucks v. Conkle, 263 Ga. 539, 544 (3) (436 SE2d 635) (1993); Skil Corp. v. Lugsdin, 168 Ga. App. 754, 755-756 (1) (309 SE2d 921) (1983); Gunthorpe v. Daniels, supra. However, when admitted for these purposes as prior substantially similar defects, the foundation must be laid that such occurrences were with the same or similar model steel belted tires, made with the same or similar materials and manufacturing processes, and having substantially similar defects. This does not mean that the defects, tires, or occurrences must be identical, but only sufficiently substantially similar to be probative so that a jury can reasonably draw an inference of defect, causation, dangerousness, knowledge, producing the tire failure, or failure to warn. Mack Trucks v. Conkle, supra; Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 877-878 (1) (447 SE2d 302) (1994); Hayes v. Gary Burnett Trucking, 203 Ga. App. 693, 694 (1) (417 SE2d 676) (1992), overruled on other grounds, Patterson v. Lauderback, 211 Ga. App. 891, 893 (440 SE2d 673) (1994); Carlton Co. v. Poss, 124 Ga. App. 154, 155 (183 SE2d 231) (1971). It is within the trial court’s sound discretion to determine whether the prior similar occurrences or tire failures are sufficiently substantially similar to allow the admission of such evidence; this means a continuum of admissible, substantially similar occurrences, where at one extreme the occurrences were the same and at the other extreme the occurrences were barely sufficient to be substantially similar for admission so as not to be an abuse of discretion. Skil Corp. v. Lugsdin, supra at 756; Carlton Co. v. Poss, supra; Wright v. Dilbeck, 122 Ga. App. 214, 216-217 (4) (176 SE2d 715) (1970).

3. Crosby contends that the trial court erred in excluding Cooper Tire’s admissions of the relationship between tire failure and loss of vehicle control and the danger of tire vibration. We agree.

(a) To the extent that there was a prior recall of this model steel belted radial or models similar in design, materials, or manufacturing process so as to be probative, such recall would be admissible. Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286 (2) (260 SE2d 20) (1979).

The recall letter is admissible as long as there is first introduced some independent proof that the particular product in question suffered from the same defect. . . . [I]t is relevant on the question whether the defect was present when the [tire] left the manufacturer. [Cits.]

Id. at 287. It also may be admissible for other purposes.

(b) In this case, Crosby seeks to use recalls of other brands and types of tires conducted by Cooper Tire, both prior to and after the manufacture of the subject tire, not to prove a defect in this particular tire but to negate the Cooper Tire defenses that driving error caused the rollover or that product misuse caused the rollover by showing that Cooper Tire warned their dealers, but not their users, that tire vibrations were dangerous and that separation of radial belting leads to loss of vehicle control and rollover.

Product misuse did not relieve the manufacturer from liability for a defective product when such misuse was known by the manufacturer or was reasonably foreseeable by the manufacturer, as alleged in this case. See Talley v. City Tank Corp., 158 Ga. App. 130, 137 (279 SE2d 264) (1981). Thus, evidence of the knowledge by Cooper Tire that tire vibration is dangerous and that Cooper Tire warned its dealers of this goes to the issue of foreseeability of the danger from tire vibration and of product misuse by users in continuing to drive with vibrating tires. This knowledge of anticipated driver misuse in turn gave rise to the duty to warn users of the danger from vibrating tires. Id.

Thus, the redacted recall or other related documents would be admissible to prove a failure to warn, with proper limiting instructions to the jury as to what the evidence may and may not be used to prove.

4. Crosby’s fourth enumeration of error is that the trial court erred in precluding impeachment of Cooper Tire’s expert witness, Stephen Arndt, with inconsistent prior opinions based upon testing by his company which he considered in reaching his opinion in the case. This was a discretionary ruling that the trial court made as to the proper use of impeachment.

(a) This is not a factual situation in which the interest, attitude, and feelings of the witness toward Crosby or Cooper Tire came into play. OCGA §§ 24-9-64; 24-9-68. The fact that Arndt & Associates’ employees in different cases reached different opinions for different clients as to the cause of a rollover in a Bronco with a tire blowout does not demonstrate bias or interest; if anything, it demonstrates impartiality. In this case, the trial judge, in his sound discretion, properly limited cross-examination to exclude opinions reached in another case by employees or co-workers. See Duckworth v. State, 223 Ga. App. 250, 252 (477 SE2d 336) (1996).

(b) If Cooper Tire’s accident reconstruction expert Arndt did not take part in the prior case for the injured client, Walsh, where testing was performed to demonstrate that a blowout leads to rollover as causation so as to possess personal knowledge of such tests, then the trial court properly excluded cross-examination regarding the opinions of others, because such alleged prior contradictory opinion as to causation by Arndt’s co-workers would not be a prior statement or opinion of the witness for purposes of impeachment by a prior contradictory opinion of Arndt’s. OCGA § 24-9-83. See Waszczak v. City of Warner Robins, 221 Ga. App. 528, 530 (2) (471 SE2d 572) (1996). Different expert witnesses can come to divergent opinions based upon the same facts.

(c) However, such evidence of the prior opinions by his colleagues could be admitted to disprove or refute Arndt’s own testimony as to causation in this case in rebuttal as impeachment after the defense completes its case. OCGA § 24-9-82. But to do so, Crosby must first lay a foundation showing sufficient substantial similarity between the prior case and this case to be probative and, second, must also show an exception to the hearsay rule for the admission of the prior expert opinion prepared by a non-witness, unless such colleagues testify, because such conflicting opinion of non-witnesses would become substantive evidence in the case. Gibbons v. State, 248 Ga. 858, 863 (286 SE2d 717) (1982); see also Mack Trucks v. Conkle, supra; Gen. Motors Corp. v. Moseley, supra at 878.

In this case, the purpose of introducing such testimony would be to disprove Arndt’s opinion as to causation by using other expert opinion, but also to discredit him by showing that such opinion as to causation was rendered by his own co-workers and employees in unrelated cases. See Wesleyan College v. Weber, 238 Ga. App. 90 (517 SE2d 813) (1999).

5. Crosby’s last enumeration of error is that the trial court erred in precluding expert testimony as to the public’s awareness of danger from tire vibration. This is an area where the trial court has discretion to admit or deny expert opinion testimony when the trial court believes that the evidence would be a waste of time, cause undue delay, result in needless presentation of cumulative evidence, or be unhelpful, confusing, or misleading. See Barlow v. State, 270 Ga. 54, 56 (507 SE2d 416) (1998); Hicks v. State, 256 Ga. 715, 720-721 (13) 1352 SE2d 762) (1987).

Testimony by a human factors expert as to the general public’s awareness of the dangers from tire defects or that vehicle vibration may be life-threatening is not relevant in Crosby’s case-in-chief and only became relevant as rebuttal evidence after Cooper Tire raised through evidence in the defense’s case-in-chief that Mr. Crosby was contributorily or comparatively negligent in continuing to drive with the vibrating tire and that his conduct was the cause of the rollover.

The expert conducted a survey as to the general public’s awareness of danger from a vibrating tire. Statistical probability sampling is a matter for expert testimony. The trial court may take judicial notice that the procedure has been established with verifiable certainty. See Hawkins v. State, 223 Ga. App. 34, 36 (476 SE2d 803) (1996).

However, although the opinion evidence of experts as to questions of science or statistics is admissible into evidence, it is within the sound discretion of the trial court as to whether or not such opinion evidence would assist the jury or confuse the jury, and the decision to exclude such expert opinion from evidence will not be overruled absent a manifest abuse of discretion. See generally Jones v. State, 232 Ga. 762, 764-765 (2) (208 SE2d 850) (1974); Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592-593 (4) (452 SE2d 159) (1994).

Case No. A99A2150

6. Cooper Tire contends in numerous enumerations of error that the trial court erred in denying admission into evidence that the Crosbys were not wearing seat or safety belts at the time of the rollover, as required under OCGA § 40-8-76.1 (b). We do not agree.

Ga. L. 1988, pp. 31, 32, § 1, created OCGA § 40-8-76.1 and had prospective application only, because it created substantive rights that excluded evidence as to contributory negligence, comparative negligence, causation, and mitigation of damages under prior case law. Payne v. Joyner, 197 Ga. App. 527, 528 (1) (399 SE2d 83) (1990).

In the original Act, subparagraph (d) reads:

Failure to wear a seat safety belt in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, corporation, or insurer, . . . and shall not diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a passenger vehicle.

Ga. L. 1988, pp. 31, 32, § 1. The caption of the Act provided the legislative intent “to provide that failure to use seat safety belts may not be introduced in evidence in any civil action and may not be used to diminish recovery of damages.” Ga. L. 1988, pp. 31, 34, § 1. See Copher v. Mackey, 220 Ga. App. 43, 45 (4) (467 SE2d 362) (1996); see also Meyer v. State, 224 Ga. App. 183, 184 (480 SE2d 234) (1997); Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131 (105 SE 629) (1921). In Ga. L. 1993, pp. 516, 517, § 1, OCGA § 40-8-76.1 (d) was amended to remove “in violation of this Code section.” The caption of the Act stated the purpose to be “so as to provide that failure to wear a seat belt shall not be evidence of negligence.” Ga. L. 1999, pp. 276, 277, § 1, amended OCGA § 40-8-76.1 to substitute “[t]he failure of an occupant of a motor vehicle which has a seat safety belt or belts” and to add that such shall not be evidence of “causation” or “otherwise be considered by the finder of fact” as to liability. The caption stated the purpose

so as to provide that the failure to use a safety belt in a motor vehicle which has a safety belt or belts shall not be considered by a finder of fact as evidence of negligence or causation and shall not be considered in determining liability or to diminish a recovery for damages.

(a) Cooper Tire argues that the Bronco was an off-road vehicle mounted on a truck chassis exempted by the express language of Ga. L. 1988, pp. 31, 32, § 1 (OCGA § 40-8-76.1 (a)). “Off-road vehicle” is defined under OCGA § 40-7-3 (Ga. L. 1976, p. 330, § 3) as

any motorized vehicle designed for or capable of cross-country travel on or immediately over land, water, snow, ice, marsh, swampland, or other natural terrain and not intended for use predominantly on public roads. It includes, but is not limited to, four-wheel drive or low-pressure tire vehicles.

OCGA §§ 40-8-76.1 and 40-7-3 must be construed in pari materia, because at the time OCGA § 40-8-76.1 was first passed, the legislature was aware of the problems of highway crash safety that the safety act sought to remedy and did not intend to exclude “sport utility vehicles” (“SUV”) from coverage under the Act. See Ryan v. Commrs. of Chatham County, 203 Ga. 730, 733 (1) (48 SE2d 86) (1948); Undercofler v. L. C. Robinson & Sons, Inc., 111 Ga. App. 411, 414 (1) (141 SE2d 847) (1965), aff'd, 221 Ga. 391 (144 SE2d 755) (1965). However, while the Bronco, as a SUV, had design characteristics of an off-road vehicle, it was designed and intended primarily for use on public roads. Therefore, the General Assembly intended for seat safety belt legislation to apply to it as a passenger vehicle in order to promote safety. See generally OCGA § 40-4-2 (c) Type 6; C. W. Matthews Contracting Co. v. Gover, 263 Ga. 108, 109 (2) (428 SE2d 796) (1993); Mayor of Hapeville v. Anderson, 246 Ga. 786, 787 (272 SE2d 713) (1980). OCGA § 40-8-76.1 should not be construed to defeat the intent of the General Assembly to promote driver and passenger safety through mandating the wearing of seat belts but at the same time exclude the application to SUVs. See Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981); see also C. W Matthews Contracting Co. v. Gover, supra at 109. Although in 1988, when the Act was passed, there were not as many SUVs as today, there was a sufficient number of SUVs on the road that the General Assembly did not intend to exclude them.

“ ‘Passenger car’ means every motor vehicle . . . designed for carrying ten passengers or less and used for transportation of persons.” OCGA § 40-1-1 (41). While SUVs have a pickup truck chassis, the body is that of a passenger vehicle, fitting the definition of “passenger car” in terms of passenger capacity. “ ‘Truck’ means every motor vehicle designed, used, or maintained primarily for the transportation of property.” OCGA § 40-1-1 (70). Thus, SUVs more closely fit the definition of a “passenger car” than a “truck” and replace most station wagons as dual purpose vehicles. In the Act, the “exclusion of vehicles mounted on a truck chassis” was intended to exclude trucks and those motor vehicles used primarily to carry more than ten passengers, i.e., buses and mini-buses; it was not intended to exclude SUVs. While the plain language of OCGA § 40-8-76.1 (a) appears to exclude off-road vehicles and vehicles on a truck chassis from coverage, such literal construction would defeat the legislative purpose of protecting the driving public. Therefore, the statute is to be construed to effectuate its purpose to protect occupants of passenger vehicles. See Bd. of Trustees of the Policemen’s Pension &c. v. Christy, 246 Ga. 553, 554 (1) (272 SE2d 288) (1980); City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970); Bibb County v. Hancock, 211 Ga. 429, 439-440 (2) (86 SE2d 511) (1955).

(b) Cooper Tire argues that, under OCGA § 40-8-76.1 (d), for the exclusion of evidence to apply, the occupant must not be wearing the seat belt and be charged with not wearing the seat belt; otherwise the exclusion does not apply. In this case, Cooper Tire argues that, although the occupants were not wearing safety belts, they were never charged; thus, the exclusion does not apply. This strained construction flies in the face of the plain language of OCGA § 40-8-76.1 (d) and the stated purpose of the General Assembly to exclude such fact from evidence.

(c) Cooper Tire contends that the failure to wear seat belts by the occupants of the Bronco was relevant and admissible for the limited purposes of (1) reduction of any damages; (2) refutation of an element of plaintiffs’ failure to warn claim; and (3) impeachment. The language of the Act is plain and unambiguous when it says that failure to wear a safety belt “shall not be considered by the court on any question of liability” and “shall not diminish any recovery for damages arising out of the . . . occupancy, or operation of a passenger vehicle.” Ga. L. 1988, p. 33, § 1. The General Assembly intended to statutorily exclude comparative negligence, contributory negligence, causation, and mitigation of damages under former law. See OCGA § 40-8-76.1; C. W. Matthews Contracting Co. v. Gover, supra at 108; Tuggle v. Helms, 231 Ga. App. 899, 903 (2) (499 SE2d 365) (1998). Thus, unlike general rules of evidence which permit admission of evidence for one purpose although not for other purposes, the legislative intent of the statute was to prohibit the admission of evidence that no seat belt was worn for all purposes. See generally Johnson v. State, 146 Ga. App. 277, 280 (2) (246 SE2d 363) (1978) (an act may intend to exclude evidence for any purpose). Through each successive amendment to this Act, the General Assembly repeatedly expressed its overriding intent not to allow admission of the failure to wear safety belts. See Ga. L. 1999, p. 276, § 1; Ga. L. 1993, p. 516, § 1; Ga. L. 1988, pp. 31, 33, § 1; see also Porquez v. Washington, 268 Ga. 649, 652 (1) (492 SE2d 665) (1997) (subsequent amendments to an act affirm earlier legislative intent).

7. Cooper Tire contends that the trial court erred in denying it the opportunity to cross-examine Crosby on allegations in her complaint. We do not agree.

(a) The complaint was amended by the consolidated pre-trial order, which superceded the complaint and thereby amended the pleadings. OCGA § 9-11-16 (a). In her outline of the case in the pretrial order, Crosby amended the complaint as to causation, eliminating that Ford Motor Company negligently designed and manufactured the Bronco. Therefore, the contentions in the complaint were no longer solemn admissions in judicio, because the pre-trial order amended the complaint, deleting such contentions. OCGA § 24-3-30; Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 570 (1) (499 SE2d 722) (1998).

(b) The allegations of the defect in design and manufacture of the Bronco by Ford Motor Company, negligence, and causation were similar to the bare allegations made against Cooper Tire, i.e., mere opinions, conclusions, and allegations that plaintiff was required to prove at trial and not simple statements of fact. The mere allegations in pleadings, even when verified, do not rise to the level of evidence of facts. See Jerry Lipps, Inc. v. Lewallen, 118 Ga. App. 479 (164 SE2d 232) (1968). Likewise, conclusory allegations in pleadings or affidavits are not facts. Taeger Enterprises v. Herdlein Technologies, 213 Ga. App. 740, 744-746 (1) (445 SE2d 848) (1994); Sullivan v. Fabe, 198 Ga. App. 824, 826 (1) (403 SE2d 208) (1991); Cornell Indus. v. Colonial Bank, 162 Ga. App. 822, 823-824 (1) (293 SE2d 370) (1982). “The rule as to admissions in judicio applies only to admissions of fact and does not apply to opinions or conclusions. [Cits.]” Aycock v. Calk, 228 Ga. App. 172, 174 (491 SE2d 383) (1997). Therefore, there was no admission in judicio in the complaint, because opinions and conclusions in the pleadings are not admissions in judicio. Scott v. Jefferson, 174 Ga. App. 651, 652 (1) (331 SE2d 1) (1985).

8. Cooper Tire contends that the trial court erred in excluding from evidence portions of Crosby’s answers to interrogatories. We agree.

The answers to the interrogatories expressed the opinions or conclusions that Ford Motor Company was responsible for a joint proximate cause of the Bronco’s rollover through defective design and manufacture. This was an admission against interest and a prior contradictory opinion.

In this case, such answers to interrogatories by a party, while hearsay, were admissible in evidence as admissions against interest or to serve as impeachment of the party. Taeger Enterprises v. Herdlein Technologies, supra at 745; Carter v. Tatum, 134 Ga. App. 345, 347 (1) (212 SE2d 439) (1975). While such contentions as to causation and negligence by Ford Motor Company in the rollover were mere opinions or conclusions, these answers constituted prior inconsistent statements which could be used for purposes of impeachment of Crosby. Everson v. Franklin Discount Co., 248 Ga. 811, 813 (2) (285 SE2d 530) (1982); Benn v. McBride, 140 Ga. App. 698, 699-700 (3) (231 SE2d 438) (1976); Carter v. Tatum, supra.

Decided November 2, 1999

Reconsideration denied November 17, 1999

Cathey & Strain, Edward E. Strain III, David A. Sleppy, James E. Staples, Jr., Cottingham & Porter, Sidney L. Cottingham, Robert L. Porter, Jr., for appellants.

Drew, Eckl & Farnham, W. Wray Eckl, Lucian Gillis, Jr., Melanie C. Eyre, Watson, Spence, Lowe & Chambless, Dawn G. Benson, for appellee.

9. Cooper Tire’s final contention is that the exclusion of evidence of not wearing safety belts under OCGA § 40-8-76.1 (d) violates both equal protection and due process rights under both the United States and Georgia Constitutions.

On July 7, 1997, Crosby made a written motion in limine to exclude any evidence regarding the failure to wear safety belts under OCGA § 40-8-76.1 (d). On July 17, 1997, Cooper Tire filed its written response to the motion in limine, including a specific written constitutional attack on OCGA § 40-8-76.1 (d), both under equal protection and due process grounds under the United States and Georgia Constitutions. However, the trial court never expressly and plainly ruled upon the constitutional issues. Instead, the trial court granted Crosby’s motion in limine in a simple, four-line order.

Where a constitutional attack on a statute is not clearly passed upon by the trial court, such constitutional issue cannot be addressed on appeal. Kosikowski v. Kosikowski, 243 Ga. 413, 414 (3) (254 SE2d 363) (1979); Rowe v. Fleet Mtg. Corp., 226 Ga. App. 593, 594 (3) (487 SE2d 133) (1997); Bryant v. Employees Retirement System &c., 216 Ga. App. 737, 739 (2) (455 SE2d 839) (1995).

Judgment affirmed in Case No. A99A2150. Judgment affirmed in part and reversed in part and case remanded for new trial in Case No. A99A1980. Blackburn, R J., and Barnes, J., concur.

        Jackson v. Ensley, 168 Ga. App. 822, 827-828 (1) (310 SE2d 707) (1983), held that the prior contradictory opinion of a lay witness could be introduced for the limited purpose of impeachment, but that the trial court should instruct the jury that the prior opinion was admitted for the limited purpose of impeachment of that witness. See also Shropshire v. State, 226 Ga. App. 669, 670-671 (487 SE2d 384) (1997). The failure to instruct as to the limited purpose of its admission will not require a new trial. See Jackson v. Ensley, supra at 828; Pound v. Medney, 176 Ga. App. 756, 761 (2) (337 SE2d 772) (1985).

       Since the other Arndt & Associates co-workers or employees could be called to testify about Walsh v. Ford Motor Co. &c., rather than Crosby v. Cooper Tire, then OCGA § 9-11-26 (b) (4) (B) and (C) would not have to be satisfied, because such other experts were not Cooper Tire’s trial preparation experts and were not called as witnesses; however, if these coworkers of Arndt worked on both cases and are to testify about what they did for Cooper Tire, then such Code section would have to be satisfied. See Wesleyan College v. Weber, 238 Ga. App. 90 (517 SE2d 813) (1999); Heyde v. Xtraman, 199 Ga. App. 303, 308 (404 SE2d 607) (1991).

       The General Assembly wished to promote passenger safety by mandating safety belt wearing, but avoid any common law negligence either under comparative or contributory negligence or mitigation of damages. Thus, it prohibited the admission of evidence for such purposes. See former case law showing what was excluded by statute: Jones v. Livingston, 203 Ga. App. 99, 102 (3) (416 SE2d 142) (1992); Jones v. Scarborough, 194 Ga. App. 468 (1) (390 SE2d 674) (1990); Katz v. White, 190 Ga. App. 458, 459 (379 SE2d 186) (1989); RAF. Motor Cars v. Childers, 181 Ga. App. 821, 822 (3) (a) (354 SE2d 6) (1987); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154-155 (1) (342 SE2d 352) (1986).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A0804.
    STANFORD v. PAUL W. HEARD & COMPANY.
    (525 SE2d 419)
   Barnes, Judge.

Jack M. Stanford appeals the grant of summary judgment to Paul W. Heard & Company (“Heard & Company”) on his claim alleging tortious interference with employment, intentional infliction of emotional distress, and negligence in publishing his drug test results. He also appeals the dismissal of his claim for statutory penalties under 29 USC § 1132 (c) (1) because Heard & Company failed to give him timely notice of his rights under the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”). We disagree and affirm.

Stanford was an employee of Heard & Company until his employment was terminated after he tested positive on a drug test. While employed, Stanford was covered by Heard & Company’s group medical coverage. During Stanford’s employment, Heard & Company and Aviation Constructors, Inc. (“ACI”) formed a joint venture to build an aircraft fueling facility, and Heard & Company loaned Stanford to the joint venture to work on that facility. Heard & Company, however, continued to provide Stanford’s pay and benefits, and the joint venture reimbursed Heard & Company.

Subsequently, as part of a plan for Stanford to become an employee of the joint venture on ACI’s payroll, Stanford took a required drug test on which he tested positive. He was then terminated by ACI, but Heard & Company kept Stanford on its payroll until he was laid off for lack of work on February 6, 1995. Nevertheless, Heard & Company kept Stanford on its health plan at its own expense until July 1, 1995. In September 1995, the administrator of the health plan sent a letter to Stanford at his last known address advising him of his rights to continue his health care benefits at his own expense.

Subsequently, Stanford sued Heard & Company, ACI, as well as the entities that tested his blood, on various theories of recovery because of the termination of his employment. After the trial court granted Heard & Company’s motion for summary judgment and motion to dismiss, Stanford filed this appeal.

1. (a) The standards applicable to motions for summary judgment generally are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

(b) Although Stanford asserts that the grant of summary judgment should be reversed because the trial court did not open and consider all the sealed depositions, we will not reverse a grant of summary judgment solely on this ground. Taylor v. Schander, 207 Ga. App. 627, 628 (2) (428 SE2d 806) (1993). Instead, we will examine the depositions and decide whether the evidence contained in them creates a material issue of fact. Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 527 (2) (484 SE2d 249) (1997). The authority Stanford relies upon for this argument was overruled by Taylor v. Schander, supra, 207 Ga. App. at 628.

Stanford has not specified any evidence in the depositions that shows there is a genuine issue of material fact, and “[i]t is not the function of this court to cull the record on behalf of a party.” (Punctuation omitted.) Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (389 SE2d 251) (1989). “This court cannot read every line of the record and transcript to hunt for error.” Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895) (1968). Accordingly, this enumeration of error is without merit.

(c) Stanford contends the trial court erred by granting summary judgment because genuine issues of material fact remain for trial. Pretermitting whether Stanford was an employee of Heard & Company or of the joint venture, he was an employee at will (OCGA § 34-7-1; Anderberg v. Ga. Elec. Membership Corp., 175 Ga. App. 14, 15 (332 SE2d 326) (1985)), and his employment could be terminated for any reason or no reason at all. Meeks v. Pfizer, Inc., 166 Ga. App. 815, 816 (305 SE2d 497) (1983). Accordingly, Stanford’s claim for wrongful termination is without merit. Bendix Corp. v. Flowers, 174 Ga. App. 620 (330 SE2d 769) (1985).

Further, his claim that Heard & Company tortiously interfered with his employment is also without merit. As his employer, Heard & Company could not tortiously interfere with Stanford’s employment. Sullivan v. Horn, 221 Ga. App. 289, 290 (470 SE2d 765) (1996). For the same reason, Heard & Company cannot be liable under Stanford’s theory of conspiracy to effect his termination. See West Va. Glass Specialty Co. v. Guice & Walshe, Inc., 170 Ga. App. 556, 558 (1) (317 SE2d 592) (1984). Therefore, the trial court did not err by granting summary judgment to Heard & Company under this theory of liability.

(d) Stanford’s brief states that he incorporates by reference unspecified arguments he made in other appeals pending before this court. As we cannot ascertain to which arguments Stanford refers, we cannot consider these arguments even if we were to allow him to incorporate them by reference. Moreover, as these other appeals do not concern Stanford’s employer, the arguments in the other appeals do not appear relevant to this case.

Decided November 17, 1999.

Temple, Strickland, Counts & Dinges, William A. Dinges, Ellen Gettinger, Roderick B. Bobo, for appellant.

Shapiro, Fussell, Wedge, Smotherman & Martin, Herman L. Fussell, Peter K. Kintz, for appellee.

2. The trial court did not err by dismissing Stanford’s claim for penalties under COBRA. Stanford filed two Employee Retirement Income Security Act claims against Heard & Company. One claim was for damages to recover the medical expenses that would have been paid by the plan if Stanford had received proper notice of his rights and had elected to continue coverage under the plan. The parties agree that the trial court has jurisdiction over this claim, and it remains pending in the trial court.

Stanford’s second claim for the statutory penalty of $100 per day under 29 USC § 1132 (c) (1), however, was dismissed by the trial court because 29 USC § 1132 (e) grants exclusive jurisdiction over such claims to the federal courts. Although state courts have concurrent jurisdiction with the federal courts to recover benefits owed “under the terms” of a benefit plan (29 USC § 1132 (a) (1) (B)), this jurisdiction is limited to claims for benefits “under the terms” of the plan. Time Ins. Co. v. Roberts, 191 Ga. App. 766, 767-768 (1) (382 SE2d 718) (1989). Accordingly, as Stanford’s claim was for penalties under the law and not for benefits under a plan, the trial court correctly ruled that it had no jurisdiction over this claim. See Gale v. Hayes Microcomputer Products, 192 Ga. App. 30, 31-32 (3) (383 SE2d 590) (1989); Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 819 (2) (377 SE2d 901) (1989).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: Miller, Judge.

text:
    A99A1041.
    MATTHEWS v. TELE-SYSTEMS, INC. et al.
    (525 SE2d 413)
   Miller, Judge.

As a director and approximate one-third shareholder of a close corporation, Tele-Systems, Inc., Charles Matthews agreed to the $12,000-per-month salaries of two other director/shareholders even though he knew the revenue stream of the corporation would not support such unless a hoped-for contract soon began producing substantial revenue. The contract eventually produced the revenue to support the salaries. Based on false statements by these two directors and the one other director/shareholder that a major client did not want Matthews on the board, Matthews later resigned his directorship and voted his shares with these three to re-elect them to the board.

After issuing more stock to one of the other three stockholders so that Matthews now owned less than one-fourth of the stock, TeleSystems fired Matthews, and the remaining three director/shareholders voted for a reverse stock split (to which Matthews dissented) that transformed Matthews’ stock into a claim for cash. He sued Tele-Systems and its three director/stockholders for breach of fiduciary duty in several counts, including: excessive salaries (Count 1), issuing additional shares (Count 2), squeezing him out through the reverse stock split (Count 3), deceiving him into resigning the directorship (Count 5), attorney fees (Count 6), and punitive damages (Count 7). The court granted summary judgment on these counts, and Matthews appeals only those portions granting summary judgment on Counts 1, 5, 6, and 7. Because Matthews could pursue Count 1 only through a derivative action, and because he experienced no harm in Count 5, we affirm.

1. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Applying the de novo standard of review to an appeal from a grant of summary judgment, we must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party.

2. Three independent and separate reasons support summary judgment on Count 1, which alleges that two director/shareholders were overpaid. First, this is a breach of fiduciary duty claim which essentially alleges that the excessive salaries depleted or wasted corporate assets. “The general rule is that a shareholder seeking to recover misappropriated corporate funds may only bring a derivative suit.” Because this is a direct action, the claim must fail.

The exception to this rule is where the plaintiff-shareholder can show that the wrongful acts caused a special injury unique to him, i.e., separate and distinct from that suffered by other shareholders of the corporation. If the corporation has, creditors or other shareholders who would be prejudiced if the misappropriated funds were not returned to the corporation, then a direct action must fail.

Here Matthews alleged and proved that Tele-Systems funded the two excessive salaries through ongoing and unpaid loans (exceeding $300,000) received from Advanced Technology Associates, now a large creditor of Tele-Systems. Moreover, the fourth director/shareholder did not receive these excessive salaries and, along with the creditor, would also benefit from the return of the misappropriated funds to the corporation. Thus, a direct action was unjustified on this count.

Second, even though he had reservations about the lack of income to support the salaries, Matthews as a director and shareholder voted for and approved the salaries based on the assurances of the others that a hoped-for contract would more than provide the needed income. He testified that he felt the large salaries were in the best interest of the corporation. When the contract was long in coming, he as director made no effort to introduce a resolution or otherwise seek to have the salaries reduced. Having acquiesced in and ratified the salaries, Matthews is estopped from complaining.

Matthews contends, however, that after Tele-Systems fired him and after Tele-Systems generated sufficient income to justify the salaries, one of the stockholders abandoned a key project of the company that would have brought in additional income that would have benefited Matthews as a minority stockholder. Matthews’ evidence on this matter comes from a deposition that was taken after the court entered summary judgment and is therefore not available for our consideration in reviewing the court’s order. Even that evidence reflects that the project was delegated and not abandoned. Moreover, no evidence shows that any statements or commitments made regarding the hoped-for future project were made either in bad faith or without the present intent to perform.

Third, as conceded by Matthews below, the depletion of corporate assets through excessive salaries would relate to the value or price Matthews is to receive for his shares in the stock appraisal action currently pending in DeKalb Superior Court. Under Grace Bros. v. Farley Indus., Matthews’ exclusive remedy for matters affecting the price of his stock is in that action.

The court did not err in granting summary judgment on Count 1.

3. In Count 5, Matthews alleged that the other three director/ shareholders, who simply wanted to get rid of him, lied to him by saying that a major client of Tele-Systems wanted him removed from the board of directors. Based on this misrepresentation, Matthews resigned from the board at an October 25 meeting in which the corporation’s four shareholders (including him) re-elected only the other three shareholders to the board. He seeks damages caused by his loss of the director’s position.

Matthews’ claim must fail for the simple reason that the misrepresentation caused him no harm. At that time Matthews owned less than one-third of the shares, with the other three shareholders owning the rest. As owners of more than two-thirds of the outstanding stock, the other three shareholders under the shareholders’ agreement and by law had the right and power to vote Matthews out of office. He concedes that he had no contractual right to the office. “The control and management of corporations is always dictated by the majority. [Cit.]” Thus, they did not need to get him to resign voluntarily, and their antics in doing so may have been deceitful but were essentially meaningless since they had the power to oust him in any case.

This is similar to an employer who uses deceitful means to persuade an at-will employee to resign. Because the employer could have fired the employee at will at any time, the choosing of more palatable yet deceitful means does not harm the employee in the end analysis. The court did not err in granting summary judgment on Count 5.

4. Because the attorney fees (Count 6) and punitive damage (Count 7) claims are derivative of Counts 1 and 5, the court did not err in granting summary judgment on these counts also.

5. Seven months after entry of the summary judgment order, the trial judge sua sponte recused himself from the case based on a conflict of interest. Matthews moved the new judge for relief from the judgment and later moved for an extension of time to pay costs of appeal. He filed both of these motions more than eight months after filing his notice of appeal. In his final enumeration of error, he asserts that the court erred in failing to rule on these motions.

Decided November 17, 1999

Gaslowitz & Associates, Adam R. Gaslowitz, Walter Hamberg III, for appellant.

Robins, Kaplan, Miller & Ciresi, Thomas J. Gallo, Sandra G. Kirk, Fain, Major, Wiley & Brennan, Thomas E. Brennan, for appellees.

Matthews concedes that as the trial court has not yet ruled on the motions, there is no order from which to appeal. Thus, there is nothing for us to review. Moreover, even if the court had ruled, orders entered after the filing of the notice of appeal are not properly before the appellate court. Finally, the rulings in the divisions above render the motions irrelevant. Because our review of summary judgment orders is de novo, any alleged bias in the trial court’s ruling is moot.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       See OCGA § 14-2-1302.

       After the filing of the present suit, Tele-Systems began a stock appraisal action in DeKalb Superior Court to determine the fair value of Matthews’ shares. See OCGA § 14-2-1330.

       OCGA § 9-11-56 (c).

         Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997); Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citations omitted.) Thomas v. Dickson, 250 Ga. 772, 774 (301 SE2d 49) (1983); see Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (1) (397 SE2d 699) (1990) (breaches of fiduciary duty are generally causes of action belonging to the corporation and may be asserted by a shareholder only in a derivative action); Pickett v. Paine, 230 Ga. 786, 790 (1) (199 SE2d 223) (1973).

        Phoenix Airline, supra, 260 Ga. at 585-586 (1); Holland v. Holland Heating &c., 208 Ga. App. 794, 797 (3) (432 SE2d 238) (1993).

        Thomas, supra, 250 Ga. at 775; Medlin v. Carpenter, 174 Ga. App. 50, 53 (3) (329 SE2d 159) (1985).

        Pickett, supra, 230 Ga. at 792 (2); Medlin, supra, 174 Ga. App. at 52 (2).

        T & R Custom v. Liberty Mut. Ins. Co., 227 Ga. App. 144, 145 (1) (488 SE2d 705) (1997).

       Cf. Fuller v. Perry, 223 Ga. App. 129, 130-132 (1) (476 SE2d 793) (1996).

       264 Ga. 817, 820-821 (3) (450 SE2d 814) (1994).

       See also Croxton v. MSC Holding, 227 Ga. App. 179, 180-182 (1) (489 SE2d 77) (1997).

       See OCGA § 14-2-803.

         Comolli v. Comolli, 241 Ga. 471, 474 (1) (246 SE2d 278) (1978).

       See Johnson v. MARTA, 230 Ga. App. 105, 107 (2) (495 SE2d 583) (1998); compare Hampton v. Norred & Assoc., 216 Ga. App. 367, 369-370 (2) (454 SE2d 222) (1995).

       See Barber v. Collins, 194 Ga. App. 385, 386 (3) (390 SE2d 633) (1990).

        Mullen v. Nezhat, 223 Ga. App. 278, 283 (4) (477 SE2d 417) (1996).

        Desai, supra, 229 Ga. App. at 163 (1).


author: Eldridge, Judge.

text:
    A99A2082.
    WOODFORD v. THE STATE.
    (525 SE2d 408)
   Eldridge, Judge.

A Bibb County jury found Milton Woodford guilty of rape and incest for sexual acts he committed against his stepdaughter. On review, we affirm his convictions.

In a single, narrowly drawn enumeration of error, Woodford challenges the sufficiency of the evidence introduced against him. In so doing, Woodford does not contend that the State’s evidence failed to show the essential elements of the offenses for which he was charged. Instead, Woodford claims that the State’s evidence was insufficient because: (a) at trial, Woodford’s stepdaughter (the victim) recanted her outcry statements wherein she previously described in detail the acts Woodford perpetrated against her; and (b) DNA paternity tests — which in this case showed Woodford as the father of the victim’s baby with 99.95% certainty — are “not an exact science.”

Evidence of the victim’s outcry statements regarding Woodford’s sexual acts against her established the essential elements of rape and incest. OCGA §§ 16-6-1 (a); 16-6-22 (a) (1); see also Brady v. State, 233 Ga. App. 287 (1) (503 SE2d 906) (1998). “Prior inconsistent statements concerning the sexual activity in which [the victim] and [the defendant] were engaged were substantive evidence of [the defendant’s] guilt.” Id. at 287. See also Gibbons v. State, 248 Ga. 858, 863-864 (286 SE2d 717) (1982). The DNA paternity test corroborated the victim’s outcry statements as to Woodford’s sexual acts against her. This evidence was sufficient for a rational trier of fact to have found Woodford guilty beyond a reasonable doubt as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 17, 1999.

Nicholas E. White, for appellant.

Charles H. Weston, District Attorney, Graham A. Thorpe, Myra Y. Christian, Assistant District Attorneys, for appellee.

The fact that at trial the victim disavowed her prior outcry statements and the fact that DNA testing has a margin of error went to the weight and credibility that the jury wished to assign to the State’s otherwise sufficient evidence. “On appeal of a criminal conviction this Court does not weigh the evidence or determine the credibility of witnesses, but determines the sufficiency of the evidence.” (Citation and punctuation omitted.) Horne v. State, 231 Ga. App. 864, 865 (1) (501 SE2d 47) (1998). Accordingly, Woodford’s claim of error is without merit.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Johnson, Chief Judge.

text:
    A99A2180.
    In re VINCENT.
    (525 SE2d 409)
   Johnson, Chief Judge.

Benjamin Vincent received a head injury and permanent brain damage in an automobile accident in June 1991. The Bartow County probate court appointed guardians of his person and property in June 1992. In November 1997, Vincent petitioned to terminate the guardianship. Two months later the probate court granted Vincent’s petition. The probate court, however, vacated and set aside its order 11 days later, ruling that it wanted to receive more evidence regarding the need for a guardian. After hearing additional evidence, the probate court denied Vincent’s petition and appointed a county guardian. Vincent appealed de novo to the superior court, which held a jury trial. The jury returned a verdict terminating the guardianship of Vincent’s person, but continuing the guardianship of Vincent’s property. Vincent appeals from the judgment entered on the jury’s verdict. For the reasons that follow, we affirm.

1. Vincent argues that the probate court erred in setting aside its January 15, 1998 order terminating his guardianship because the probate court was divested of jurisdiction after it terminated Vincent’s guardianship. The guardian argues that this alleged error was not raised in the superior court and that the superior court made no ruling on this argument. It is well settled that only issues properly raised before the trial court will be considered on appeal. This rule applies in appeals from superior court judgments even when the superior court sits as an appellate court.

Nevertheless, a party may raise the issue of jurisdiction at any time in any court. Thus, we will address the probate court’s jurisdiction.

According to Vincent, once the Bartow County probate court terminated Vincent’s guardianship, Vincent chose to remain a resident of Polk County, and the probate court of Bartow County lost jurisdiction over him. We disagree.

While the probate court of Bartow County did terminate Vincent’s guardianship on January 15,1998, this did not end its jurisdiction. The probate court retains jurisdiction until the guardians make a proper accounting and letters of dismission are issued. In fact, the January 15, 1998 order required the former guardians to give a proper accounting of Vincent’s property. Thus, the probate court of Bartow County still retained jurisdiction when it vacated its January 15, 1998 order on January 26, 1998.

Moreover, a court has the power to revise, correct, revoke, modify or vacate any judgment or order during the term in which the judgment or order is rendered, except those judgments founded upon verdicts. This may be done even on the court’s own motion if a meritorious reason exists. Here, the record indicates that soon after the probate court entered its order on January 15, 1998, two of Vincent’s neighbors contacted the court because they were concerned about him. Subsequently, within the same term of court, the court vacated its order pending a more thorough evaluation of Vincent. The court was authorized to vacate its original order.

2. The trial court did not err in admitting the testimony of Dr. W. F. Blackerby.

(a) Vincent first argues that the trial court erred under OCGA § 29-5-9 (b) in admitting Dr. Blackerby’s testimony. OCGA § 29-5-9 (b) provides, in pertinent part: “In all proceedings under this Code Section . . . the prior adjudication of incapacity shall not be competent evidence in these proceedings.” Vincent argues that this Code section does not allow testimony from a doctor who examined and evaluated him in conjunction with an earlier guardianship proceeding. We disagree.

First, we note that this Code section prohibits introduction of the prior adjudication, not medical evidence which was used in the prior proceeding. Second, Dr. Blackerby testified at trial that he reexamined Vincent in January and February 1998 and was basing his conclusions on those examinations, not the examination he performed in 1994. Finally, the record shows that the bulk of the evidence concerning Dr. Blackerby’s initial evaluation of Vincent was not elicited on direct examination. Rather, Vincent’s attorney questioned Dr. Blackerby extensively regarding his previous findings to show Vincent’s improvement since the initial evaluation. Thus, if any party offered or placed into evidence Vincent’s prior adjudication of incapacity, it was Vincent. A party cannot complain of error created by his own legal strategy, trial procedure or conduct.

(b) Vincent complains that the trial court erred in admitting Dr. Blackerby’s testimony because Vincent’s attorneys were not allowed to be present during the evaluation. OCGA § 29-5-9 (c) provides that in a termination of guardianship proceeding, the ward possesses all the rights enumerated in OCGA § 29-5-6. One of these rights is the right to have an attorney present during the evaluation, though the attorney may not participate in the evaluation.

While Vincent correctly asserts that his attorneys should have been permitted in the room during his evaluation, he has failed to show how Dr. Blackerby’s failure to allow the attorneys in the room harmed him. The attorneys would not have been able to participate in the evaluation. Vincent’s attorneys were given a copy of Dr. Blackerby’s evaluation before trial and were permitted to question Vincent and Dr. Blackerby about the evaluation. In fact, Vincent’s attorney questioned Dr. Blackerby extensively at trial regarding Vincent’s improvement since his initial evaluation.

A party must show harm as well as error to prevail on appeal, and Vincent has failed to meet this burden. The trial court did not err in admitting Dr. Blackerby’s testimony

(c) In his appellate brief, Vincent argues that Dr. Blackerby’s testimony should have been excluded because he failed to submit his written report to the court within seven days as required by OCGA § 29-5-6 (c) (5) and because the probate court lacked the authority to appoint a second evaluator. However, these particular objections were not raised at any stage of the proceedings in the superior court. Thus, the superior court never had an opportunity to rule on these matters, and any objections Vincent may have had have been waived.

3. Vincent saw Dr. Neely, a psychiatrist, on March 24, 1997, and July 3, 1997, and spoke with him on the telephone on September 2, 1997. At trial, Dr. Neely testified that Vincent could not manage his estate and financial matters. Vincent argues that Dr. Neely’s testimony should have been excluded under the psychiatrist-patient privilege. We find any error in the admission of the testimony harmless.

Communications between a psychiatrist and his patient are to be excluded from evidence on grounds of public policy. The guardian argues that Vincent waived this privilege when he petitioned the court to remove his guardianship and placed his mental status at issue. However, the legislature has clearly expressed its intent that, as a matter of public policy, psychiatrist-patient communications remain privileged even though the patient’s care and treatment or the nature and extent of his injuries have been put at issue in a criminal or civil proceeding.

Our first inquiry would normally be whether a psychiatrist-patient relationship existed. It is not clear whether Vincent saw Dr. Neely as a medical doctor (to prescribe medicine to help with symptoms incurred as a result of his head injury) or as a psychiatrist. However, we need not determine whether the requisite confidential psychiatrist-patient relationship had been established because even if such a relationship existed between Vincent and Dr. Neely, any error in the admission of Dr. Neely’s testimony was harmless.

The testimony Vincent argues that should have been excluded was Dr. Neely’s opinion that Vincent needed a guardian of both his person and his property. Clearly, Dr. Neely’s testimony that Vincent needed a guardian of his person was harmless because the jury found that Vincent did not need a guardian of his person. As for Dr. Neely’s opinion that Vincent needed a guardian of his property, at least one other doctor who had evaluated Vincent also testified that, in his opinion, Vincent needed a guardian of his property. Because Dr. Neely’s testimony was cumulative of other evidence which was properly admitted, a reversal of the judgment is inappropriate.

Decided November 17, 1999.

Robert E. Brooks, Jr., Johnny R. Pannell, James O. Hindmon, Jr., for appellant.

Charles Crawford, for appellee.

All other objections to Dr. Neely’s testimony were waived because Vincent did not raise them at any time in the superior court.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        Young v. Scott, 212 Ga. App. 572, 574 (1) (442 SE2d 768) (1994).

       Id.

       OCGA §§ 9-11-60 (f); 9-12-16.

       See generally OCGA §§ 29-2-84 (a); 29-2-85.

       See Southern Drayage v. Williams, 216 Ga. App. 721, 722 (2) (455 SE2d 418) (1995).

       See Pekor v. Clark, 236 Ga. 457, 458 (1) (224 SE2d 30) (1976).

        Sharpe v. Dept. of Transp., 270 Ga. 101, 103 (505 SE2d 473) (1998); Clark v. Stafford, 239 Ga. App. 69, 72 (2) (522 SE2d 6) (1999).

       OCGA § 29-5-6 (c) (3).

       See Davis v. Hawkins, 238 Ga. App. 749, 752 (3) (521 SE2d 10) (1999).

       See Dept. of Transp. v. Cannady, 230 Ga. App. 585, 590 (2) (497 SE2d 72) (1998).

       OCGA § 24-9-21 (5).

       Id.

       OCGA § 24-9-40 (a); Dynin v. Hall, 207 Ga. App. 337, 339 (4) (428 SE2d 89) (1993).

        Rochals v. State, 184 Ga. App. 420, 421 (1) (361 SE2d 671) (1987); Wilson v. Bonner, 166 Ga. App. 9, 17 (5) (303 SE2d 134) (1983).

        Cannady, supra.


author: Eldridge, Judge. Pope, Presiding Judge,

text:
    A99A1586.
    FPI ATLANTA, L.P. et al. v. SEATON et al.
    (524 SE2d 524)
   Eldridge, Judge.

FPI Atlanta, L.P, formerly known as FPI Atlanta, Ltd., owned and operated Timber Trace Apartments, Stone Mountain, DeKalb County, Georgia. Fogelman Management Company is a Tennessee corporation that managed Timber Trace for the limited partnership. Fogelman Properties, Inc., a Tennessee corporation, and Avron B. Fogelman were general partners in the limited partnership. Collectively, they are referred to as the Fogelman defendants.

Myron Seaton was a tenant at Timber Trace and lived there with his roommate Demeshia Seals. The apartment complex had 989 apartment units. The apartment complex did not have fences, gates, or controlled access. As early as 1988, the Fogelman defendants recognized the need for security at Timber Trace and used off-duty DeKalb police personnel to provide security for the tenants for approximately two years. Since 1992, the Fogelman defendants recognized the need for security gates. The manager of Timber Trace requested the installation of controlled access gates. The manager also suggested fencing prior to the incident in this case, but it was not installed. As of May 11, 1994, the Fogelman defendants had entered into a contract with Security Gates, Inc., to install electronic gates, which were not installed until after the incident.

However, in 1994, Timber Trace had an unarmed security patrol from 10:00 p.m. until 6:00 a.m. seven days per week. By contract, the security patrol was only to look for loiterers who might be casing the place or looking for victims of opportunity, for potential and apparent security problems, and for disturbances. After investigating any potential criminal activity that was a threat to the tenants, the tenants’ property, or the landlord’s property and after ensuring that the clubhouse, pool, and weight room were locked, the security patrol was to call the police, if there were any disturbances or occurrences. Such patrol was to periodically visit the property, making a visual survey of the premises and to be seen.

Tony Talevski d/b/a Corporate Security Services, a division of First Security Protective Services, Inc., provided security for the Fogelman defendants at Timber Trace. Corporate Security Services was an independent contractor with the Fogelman defendants. The contract provided that,

CSS (Corporate Security Services) acknowledges its responsibility, by law, for the acts and omissions of its employees and agents in the carrying out of the duties imposed upon CSS herein, accept [sic] that CSS shall not be liable to Client or any other parties for loss or damage to property of Client or other parties which Client has placed in the immediate care, custody, and control of an employee or agent of CSS.

On the night of July 24, 1994, James Boone was the Corporate Security Services employee patrolling Timber Trace Apartments. Co-conspirators Marvin Earl Turner, Jr., Martin A. Boyer, and Marcus D. Crowder, drove to Timber Trace, looking for Myron Seaton, who was the Assistant Manager at a Picadilly Restaurant on Memorial Drive. However, Seaton had not returned from work. At approximately 10:00 p.m., Boone, one of the two men on the patrol, while making his security check of the premises, observed these men drive into the complex but did not investigate, because he saw nothing suspicious, in his opinion. About 30 minutes later, he saw the empty car and assumed that they must be visiting a resident. The car was parked with the rear to the curb, concealing the license tag from the patrol, and was positioned for a fast getaway. When the police arrived, immediately after the incident, Boone stated to the police in the presence of Seals that he had been distracted when he saw the men and wished that he had followed them.

At approximately 9:30 p.m., an unknown male called Seals and determined from her that Seaton was not at home. At 10:00 p.m., two men knocked on Seaton’s apartment door. Seals looked out the window and saw two unknown men with a television set. They told her that “Myron” had sent them with the television and to let them leave it inside. Seals opened the door, and the men entered, put down the television, and pulled guns. Seals’ hands and feet were tied; she was threatened with a gun and forced into a bedroom closet.

At about 10:30 p.m., when Seaton returned to the apartment, he had a shotgun put to his head and was taken back to Picadilly Restaurant by force. At the restaurant, he was forced to open the safe, and the men took approximately $10,000.

Seaton and Seals sued the Fogelman defendants, Talevski, and Boone. All of the defendants and the plaintiffs moved for summary judgment. The trial court denied the Fogelman defendants’ motion as to negligence, but granted it as to nuisance, found that a jury issue existed as to assumption of risk by Seals, denied the defense of release as to Seaton, and denied the motion as to punitive damages. The trial court granted Talevski’s and Boone’s motions for summary judgment. The trial court denied plaintiffs’ motion for summary judgment.

1. The Fogelman defendants contend that the trial court erred in finding that they negligently breached a legal duty owed to the plaintiffs. We do not agree.

(a) The landlord’s liability for third-party criminal conduct arises under OCGA § 51-3-1 from the duty to exercise reasonable care to keep the premises and approaches safe when such criminal act with risk of injury can be reasonably foreseen by the landlord from prior substantially similar criminal conduct of the same type. The duty to guard against injury from dangerous characters arises when “the [landlord] has reason to anticipate a criminal act,” from prior experience with substantially similar types of crimes. Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). See also Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995).

Accordingly, the incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her . . . tenants against the risk posed by that type of activity. In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.

(Citations and punctuation omitted.) Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997). See also Doe v. Briargate Apts., 227 Ga. App. 408, 409-410 (1) (489 SE2d 170) (1997).

The record shows that the Fogelman defendants had knowledge that, between May 23, 1989, and July 24, 1994, fifty-nine burglaries, five armed robberies, one robbery, one kidnapping, two murders, two pointing of a pistol at another/aggravated assaults, two persons shot/ aggravated assaults, one simple battery, and one criminal trespass had been committed in the complex. Such knowledge raised a factual question as to the reasonable foreseeability of plaintiffs being victims of burglary, armed robbery, aggravated assault, and kidnapping in their apartment. Sturbridge Partners, Ltd. v. Walker, supra at 786; cf. Doe v. Prudential-Bache/A.G. Spanos &c., 268 Ga. 604, 606 (492 SE2d 865) (1997).

The prior similar occurrences do not require that, in the past, someone else was kidnapped for the purpose of forcing the opening of a safe or store. “All that is required is that the prior incident be sufficient to attract the [landlord’s] attention to the dangerous condition which resulted in the litigated incident.” (Citation and punctuation omitted.) Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290) (1994), aff’d, 265 Ga. 235, supra. The type of violent crimes must be such that a reasonable person should reasonably foresee the risk of crime occurring to the tenants in their apartment. See Sturbridge Partners, Ltd. v. Walker, supra at 786; see also Crapp v. Elberta Crate &c. Co., 223 Ga. App. 902, 905 (479 SE2d 101) (1996). Clearly, 59 burglaries, not even considering the murders, aggravated assaults, robberies, and armed robberies, indicated that there was a substantial likelihood that someone would enter an occupied apartment to commit a felony and that the felony would be violent. See Sturbridge Partners, Ltd. v. Walker, supra at 787.

(b) The Fogelman defendants contend that hiring Corporate Security Services satisfied its duty of ordinary care owed to its tenants. However, under the contract terms, Corporate Security Services was liable to neither the Fogelman defendants nor any other parties for any property loss or damage. Further, Corporate Security Services was only to show its presence, check to see that the Fogelman defendants’ premises were locked, and to report anything to the police that looked suspicious. Under the circumstances of this case, whether or not this was an exercise of ordinary care created a jury question. Lau’s Corp. v. Haskins, supra at 493-494 (2).

Such contract for an active security patrol presence, without investigation and intervention, afforded no security that required intervention as evidenced by the fact that the three armed robbers and kidnappers proceeded with their criminal conspiracy, although they knew that they had been observed by Corporate Security Services. It can be reasonably inferred that the felons believed Corporate Security Services to have posed no threat, because they proceeded to complete such conspiracy unhindered by the security patrol. In a known high crime area, i.e., the apartment complex, between 10:00 and 10:30 p.m., Boone observed these three males driving around the apartment complex and parking with the rear of the vehicle to the curb for a fast getaway and to conceal the license tag from the security patrol. Such suspicious conduct required direct investigation; however, since Corporate Security Systems personnel were unarmed, then such direct action would put them at risk, and they chose neither to act, to actively investigate, to passively observe, or to report to the police.

Plaintiffs’ expert witness’ opinion was that the Fogelman defendants failed to exercise ordinary care when third-party criminal com duct was reasonably foreseeable, thereby creating a jury issue, so that the trial court did not err in denying their motion for summary judgment.

2. The Fogelman defendants contend that the trial court erred in holding that there was a genuine issue of fact as to causation between a breach of duty and the damages.

Inherent in every case of liability for third-party criminal conduct is the existence of concurrent proximate cause of the landlord’s prior negligent act or omission. Sutter v. Hutchings, 254 Ga. 194, 197 (1) (327 SE2d 716) (1985); Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); Atlantic Coast Line R. Co. v. Godard, 211 Ga. 373, 376-377 (1) (86 SE2d 311) (1955); Williams v. Grier, 196 Ga. 327, 336-338 (2) (26 SE2d 698) (1943); Bozeman v. Blue's Truck Line, 62 Ga. App. 7, 9-11 (7 SE2d 412) (1940). Generally, the independent, intervening criminal act of a third party, which directly caused the injury, will be treated as the supervening proximate cause of such injury, breaking the causal connection between the defendants’ negligence and the injury, unless such intervening criminal act was a reasonably foreseeable consequence of defendants’ negligent act or omission. Brown v. Mobley, 227 Ga. App. 140, 142 (488 SE2d 710) (1997) (physical precedent only); Crapp v. Elberta Crate &c. Co., supra at 904-905; Wright v. Ashe, 220 Ga. App. 91, 94-95 (469 SE2d 268) (1996); Simmons v. Dept. of Human Resources, 213 Ga. App. 98 (1) (443 SE2d 654) (1994); Tolbert v. Tanner, 180 Ga. App. 441, 444-445 (2) (b) (349 SE2d 463) (1986).

Division 1 controls the issue of reasonable foreseeability of the substantially similar type of criminal conduct by the landlord.

3. The Fogelman defendants contend that the trial court erred in not finding that Seals’ claim was barred by an assumption of the risk. We do not agree.

In Georgia,. . . defendant [s] asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [herself] to those risks. Knowledge . . . means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. ... In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given [her] consent to relieve the defendant [s] of an obligation of conduct toward [her], and to take [her] chances of injury from a known risk arising from what the defendants are] to do or leave undone.

(Citations, punctuation and footnotes omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866) (1996). See also generally Robinson v. Kroger Co., 268 Ga. 735, 740-743 (1) (493 SE2d 403) (1997).

Under the facts of this case, Seals was intentionally misled by a trick of the felons which caused her to open the door. She was told that “Myron,” her roommate, sent them; that they had a television set to deliver for “Myron” on his instruction; and that because it was heavy, they needed to put the television set down in the apartment, while she tried to find out about it and she saw that they did have a television. Thus, she lacked subjective knowledge of the risk of danger and had only a general awareness of a potential risk. Borders v. Bd. of Trustees, V.F.W. Club 2875, 231 Ga. App. 880, 882 (1) (b) (500 SE2d 362) (1998). The trial court did not err in denying the Fogelman defendants’ motion for summary judgment based upon an assumption of the risk, because a jury issue existed.

4. The Fogelman defendants contend that the trial court erred in denying their motion for partial summary judgment as to punitive damages. We do not agree.

OCGA § 51-12-5.1 (b) provides that punitive damages “may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed . . . that entire want of care which would raise the presumption of conscious indifference to consequences.”

In Divisions 1 and 2, reasonable foreseeability and concurrent proximate causation were held to be matters for the jury. Prior to January 1990, the Fogelman defendants had off-duty DeKalb County Police Department officers provide security. In January 1990, the Fogelman defendants decided to have only security patrols that merely exhibited a physical presence but took no active security measures to protect tenants, even though there was a high rate of violent crimes against persons and burglaries. In early 1992, the Fogelman defendants contracted for Corporate Security Services to drive through the apartment complex several times each night, check the landlord’s locks, and report crimes or suspicious conduct; such was not tenant security. Under the facts and circumstances of this case, the failure to provide a real “security patrol” for the apartment complex and to have a fenced and gated access gives rise to a jury issue as to an entire want of care, which gives rise to a presumption of a conscious indifference to the consequences for tenants. See Carlock v. Kmart Corp., 227 Ga. App. 356, 358-360 (2) (489 SE2d 99) (1997); see also Doe v. Briargate Apts., supra at 411 (2); Read v. Benedict, 200 Ga. App. 4, 7 (2) (406 SE2d 488) (1991); see generally Colonial Pipeline Co. v. Brown, 258 Ga. 115, 121-122 (4) (365 SE2d 827) (1988).

5. The Fogelman defendants contend that the trial court erred in granting summary judgment to Talevski d/b/a Corporate Security Services and James Boone. We agree.

(a) Under OCGA § 51-2-5 (4), the employer of an independent contractor is liable for the acts and omissions of such independent contractor when the duty is imposed by statute; in this case, OCGA § 51-3-1 imposes a personal and nondelegable duty upon the landlord to keep the premises and approaches safe when it retains possession and control. Feggans v. Kroger Co., 223 Ga. App. 47 (476 SE2d 822) (1996); Hickman v. Allen, 217 Ga. App. 701, 702-703 (458 SE2d 883) (1995); Moon v. Homeowners Assn. of Sibley Forest, 202 Ga. App. 821, 824 (4) (415 SE2d 654) (1992); Towles v. Cox, 181 Ga. App. 194, 196-197 (1) (351 SE2d 718) (1986).

Further, a personal and nondelegable duty imposed by statute cannot be avoided by a management company , employing a security company to protect only the owner’s property; the owner is liable for the torts of an independent contractor in protecting its premises. OCGA § 51-3-1; Peachtree-Cain Co. v. McBee, 254 Ga. 91, 94 (2) (327 SE2d 188) (1985). U. S. Shoe Corp. v. Jones, 149 Ga. App. 595, 596 (1) (255 SE2d 73) (1979), is distinguishable from this case, because it was based not upon negligence, but upon an intentional tort committed upon the owner’s premises in protecting merchandise. This action, however, is based in negligence; therefore, the dicta from foreign case law regarding negligence of an independent contractor, i.e., the security guard, have no application to this case. Similarly, Ellenberg v. Pinkerton’s, Inc., 125 Ga. App. 648, 651 (188 SE2d 911) (1972), is distinguishable from the facts and law of this case, because it was an intentional act, i.e., tortious invasion of privacy by an independent contractor. However, more importantly, the tortious act of the independent contractor did not occur on the owner’s premises, so that there was no statutory duty under OCGA § 51-3-1 owed to the plaintiff. OCGA § 51-2-5 (4). Relying upon the foreign dicta in U. S. Shoe Corp. v. Jones, supra at 596, this Court repeated such dicta again as dicta in Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga. App. 235, 237 (416 SE2d 776) (1992), because, although based upon a theory of negligence, the injury occurred off the premises and approaches of the owner, and the alleged negligence was committed not by the private security who were hired only to secure the entrances and exits and had notice, but by the off-duty Augusta Police Department officers hired to handle outside security, who had no notice of the potential criminal act. Thus, the dicta were not necessary to the holding of the case. None of such cases even considered that a statutorily imposed duty cannot be delegated to an independent contractor to escape vicarious liability under OCGA § 51-3-1. See OCGA § 51-2-5 (4); Feggans v. Kroger Co., supra; Moon v. Homeowners Assn., supra; Hickman v. Allen, supra; Towles v. Cox, supra. Therefore, the Fogelman defendants have vicarious liability for any negligent act or omission of its independent contractor/security guard, separate from its own liability under OCGA § 51-3-1.

(b) Under the contract, Corporate Security Services expressly excluded liability to either the Fogelman defendants or “any other parties” for damage or loss of property, but did not expressly exclude liability for personal injury to the owners, management, or “any other parties.” Thus, the express language of the contract clearly indicated that the signatories to the contract intended that there be third-party beneficiaries to the contract, i.e., “any other parties.” OCGA § 9-2-20 (b). For there to arise contractual duties to perform owed to a third party, it must appear from the contract that it was intended for the benefit of the third party by the contracting parties. Somers v. Avant, 244 Ga. 460, 463 (261 SE2d 334) (1979); Muldawer v. Stribling, 243 Ga. 673, 676 (256 SE2d 357) (1979); Stewart v. Gainesville Glass Co., 131 Ga. App. 747, 752-753 (206 SE2d 857) (1974), aff’d, 233 Ga. 578 (212 SE2d 377) (1975). In this case, the contract clearly indicates that parties not expressly named in the contract are to be affected by the contract as third-party beneficaries.

Where a contract is ambiguous on its face, the court as a matter of law must use the rules of construction to construe the contract to give effect to it. OCGA § 13-2-1. Under the contract, it is unclear to whom the phrase “any other parties” refers and what duties were owed to such “other parties” by Corporate Security Services. Under the attendant and surrounding circumstances, the owner and managers had a nondelegable personal duty to the tenants under OCGA § 51-3-1. See Lau’s Corp. v. Haskins, supra at 493-494 (2). Since the manager, as general partner, is a signatory of the contract and is in privity as one of the owners, i.e., the limited partnership, and since damage or loss of property of the owners is excluded, then the “any other parties” is not the limited partnership or the manager, because the contract otherwise covers them. OCGA § 13-2-2 (1). “Any other parties” should be given its usual and common meaning in this situation: someone to whom the landlord owed a duty under OCGA § 51-3-1, who had a possessory right to be on the premises and were on the premises, and whose property would be on the premises, i.e., the tenants. OCGA § 13-2-2 (2). Further, the contract should be construed against the drafter and party undertaking the obligation, Corporate Security Services. OCGA § 13-2-2 (5). Since the contract expressly excluded and limited liability only as to property, but did not expressly exclude or limit liability for personal injury, then Corporate Security Services under the written contract may be liable to the tenants for personal injury in conducting its security survey and patrol and in negligently failing to report suspicious conduct to the police.

(c) A fact question exists as to whether the conduct of the three felons was such as to arouse the suspicions of a reasonably prudent security person to investigate or to report the conduct to the police. While Boone stated his opinion that the conduct did not appear suspicious to him, in an ordinary negligence case, opinion evidence alone is insufficient to grant summary judgment, because the weight and credibility of opinion evidence are for the jury to determine. Harrison v. Tuggle, 225 Ga. 211, 213 (2) (167 SE2d 395) (1969); Ginn v. Morgan, 225 Ga. 192, hns. 2, 3 (167 SE2d 393) (1969); Galloway v. Banks County, 139 Ga. App. 649, 651 (229 SE2d 127) (1976); see also Home Ins. Co. v. Sunrise Carpet Indus., 229 Ga. App. 268, 272-273 (2) (493 SE2d 641) (1997); Walker v. MARTA, 226 Ga. App. 793, 797 (1) (487 SE2d 498) (1997); Johnson v. Autozone, 219 Ga. App. 390, 393 (465 SE2d 463) (1995). Further, Boone made certain admissions against interest which create a jury question as to his exercise of ordinary care.

(d) Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994), does not control under the facts of this case, because the contract in this case expressly stated “any other parties,” so that the tenants were the express third-party beneficiaries of the contract, while in Armor Elevator Co. invitees were not third-party beneficiaries. Further, in that case, PSI Security had no general duty to inspect and to warn others of the condition of the premises, while in this case, inspection and prevention were Corporate Security Services’ primary duties. In Armor Elevator Co., PSI’s primary responsibility as building security was to provide lobby security and limit access to unauthorized persons. In this case, Corporate Security Services was to patrol and to report to the police suspicious conduct or crimes. Here, Corporate Security Services’ duty was to prevent crime by its presence and by reporting suspicious conduct before a crime occurred. Unlike PSI, Corporate Security Services had an active duty that involved crime prevention for the benefit of the tenants.

Judgment affirmed in part and reversed and remanded in part.

Pope, P. J., concurs and concurs specially in Division 5. Smith, J., concurs in the judgment only.

Pope, Presiding Judge,

concurring specially.

I agree with the majority that there is an issue of fact regarding duty, breach, proximate cause, and punitive damages for the owner/ operators. See Doe v. Briargate Apts., 227 Ga. App. 408 (489 SE2d 170) (1997) (physical precedent). I specially concur with regard to Division 5, because the tenants were not third-party beneficiaries of the security contract.

First, there is no inconsistency in holding that the owner/operators may be liable even though the security defendants are not, as the trial court ruled. The owner/operators had a nondelegable duty to the tenants. OCGA §§ 51-2-5 (4); 51-3-1; Moon v. Homeowners’ Assn. of Sibley Forest, 202 Ga. App. 821, 824 (4) (415 SE2d 654) (1992). Seaton and Seals have alleged in part that the owner/operators failed to provide a sufficient amount of security given the past history of crime at the complex. See Briargate Apts., 227 Ga. App. at 410 (1). Under certain circumstances an independent contractor, such as the security defendants here, may not be liable for defective design of the work. See generally David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990).

The second question is whether the security company may be liable in addition to the owner/operators. The trial court held that the company owed no duty to the tenants. The majority reverses that decision based on a negative inference drawn from the wording of the contract. The majority reasons that because the security contract expressly provided that the security defendants did not have any liability to the owner/operators or “any other parties” for property damage, that the security defendants impliedly agreed they would be liable to “any other parties” in tort.

“In order for a third party to have standing to enforce a contract ... it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” (Citations and punctuation omitted.) Miree v. United States, 242 Ga. 126, 135 (3) (249 SE2d 573) (1978); OCGA § 9-2-20 (b). In Miree, the plaintiffs claimed third-party beneficiary status based on language in a contract between DeKalb County and the Federal Aviation Administration that stated the contract was “ ‘for the use and benefit of the public.’ ” Id. at 127. The Supreme Court found this language did not clearly show an intention by the parties to permit the general public to sue on the contract. Id. at 135-136. See also Page v. City of Conyers, 231 Ga. App. 264, 265-267 (1) (499 SE2d 126) (1998).

Here, in addition to the provision relied on by the majority, the security contract includes a merger clause which states, “this writing constitutes the sole agreement between the parties, and any representation, warranty or promise not included herein shall be of no effect.”

It is unreasonable to say that an intent “clearly appears from a contract” when a negative inference is required to show it, especially where there is a merger clause in the agreement. Further, there are over 2,500 tenants at the apartment complex. It is certainly not clear from the contract that by hiring one or two security guards to patrol at night that the owner/operators and the security defendants intended to give all 2,500 tenants the right to sue under the contract. See Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 30 (2) (443 SE2d 670) (1994) (building patrons not beneficiaries of contract between security company and building owners); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 349 (1) (d) (411 SE2d 75) (1991), rev’d on other grounds, Lemonds v. Walton County Hosp. Auth., 212 Ga. App. 369 (441 SE2d 821) (1994) (patient and family were not beneficiaries of contract whereby hospital authority agreed to maintain medical facility for the indigent); compare Kirby v. Chester, 174 Ga. App. 881, 884-886 (331 SE2d 915) (1985) (lender was third-party beneficiary of contract between attorney and borrower whereby attorney certified borrower’s title to land which was to secure the loan). The trial court correctly held that the tenants were not third-party beneficiaries of the security agreement even though they may have benefited from it.

However, the security defendants may be liable if they voluntarily undertook to provide security for the tenants. If so, they are liable if they were negligent and either (1) Seaton and Seals detrimentally relied on the security defendants’ actions or (2) the security defendants created an increased risk of harm by their own actions. Griffin v. AAA Auto Club South, 221 Ga. App. 1, 3 (2) (470 SE2d 474) (1996); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 71-72 (1) (b) (378 SE2d 323) (1989).

An expert for the plaintiffs testified that the security services that were provided would reasonably lead a tenant to the conclusion that security was being provided for them and that the premises were safe. Seals thought the security was for the tenants. Boone, the security guard on duty on the night in question, explained that he would watch over people in addition to the apartment complex property. The expert also testified that Boone’s failure to contact the police after seeing the suspicious vehicle fell below the standard of care in the industry. Thus, there is an issue of fact concerning whether the security company negligently undertook to protect the tenants, and for this reason I specially concur with regard to Division 5.

Decided November 3, 1999

Reconsideration denied November 18, 1999

Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Mary L. Hahn, for appellants.

Hammond, Carter & Watson, A. Cullen Hammond, Bauer & Deitch, Gilbert H. Deitch, for appellees.


author: Phipps, Judge.

text:
    A99A1237.
    CRAWLEY v. THE STATE.
    (525 SE2d 739)
   Phipps, Judge.

A DeKalb County jury convicted Sean Crawley of burglary, armed robbery, and aggravated assault. On appeal he enumerates ten errors, five raising sufficiency of the evidence issues, one claiming the court erred in admitting into evidence money found in a co-defendant’s clothing, one claiming the court erred in admitting evidence of prior difficulties, one claiming the court erred by admitting the handgun into evidence, and two others which are unsupported by argument and citations of authority.

Because we find that the evidence was sufficient to support the convictions, that the trial court did not err in admitting evidence, and that two of Crawley’s enumerations have been abandoned, we affirm.

Crawley advanced Cedric Smith cocaine to sell, but Smith lost the cocaine in a robbery and was unable to repay Crawley. Crawley and Anthony Lomax went to Smith’s apartment, kicked down the door, found Smith and a woman there, and demanded payment. Lomax was armed with a gun and threatened to kill the woman. Smith did not have enough money to repay Crawley, so Crawley took approximately $120 from Smith’s wallet and ransacked the apartment for valuables. Crawley and Lomax decided that they would take Smith’s furniture as payment for the debt and resolved to wait at the apartment until the next morning, when they could rent a U-Haul truck to move it. Crawley also decided to take Smith’s stereo. The stereo components would not fit into the car Crawley had driven to the apartment, so he ordered Smith to drive him to get his Bronco truck. The woman was left in the apartment with Lomax as a hostage, and he sodomized her.

Crawley and Smith returned to the apartment. Later Crawley and Lomax fell asleep, and Smith was able to call his sister on the telephone. At approximately 6:00 a.m. Smith’s brother arrived at Smith’s apartment, and he and Smith attacked Crawley and Lomax with knives. Crawley and Lomax were injured, but managed to escape — in Crawley’s case by bursting through Smith’s bedroom window. Five days later, a neighbor found an automatic pistol under the steps just outside this broken window.

1. The trial court, over Crawley’s objections, admitted into evidence $143 in cash found in the pockets of Lomax’s bloody pants. The money was found when the pants were searched by the prosecutor and Crawley’s counsel the day before trial. Before that time, although both the prosecutor and the defense counsel had access to the bloody clothes, neither had examined them.

OCGA § 17-16-4 (a) (3) requires the prosecuting attorney to make available to defense counsel for inspection, at least ten days before trial, all tangible objects in the State’s possession and intended for use as evidence. If before or during trial a party discovers evidence which is subject to discovery under the provisions of the article, that party shall promptly notify the other party and make the evidence available to him. Here, the prosecuting attorney and defense counsel discovered the evidence at the same time. The statute was not violated.

2. Crawley claims that the trial court erred in admitting “prior difficulty” evidence. The prior difficulty evidence presented by the State consisted of Smith’s testimony that, within the week before the incident giving rise to the charges here, Crawley had broken down the door of Smith’s father’s room at Dial Inn looking for Smith and the $3,000 which Crawley claimed Smith owed to him. Smith’s testimony regarding the prior event was admissible because it helped explain the motive for these crimes and Crawley’s course of conduct.

3. Crawley claims that the trial court erred in admitting the handgun into evidence because there were inconsistent descriptions of the gun and no fingerprint evidence from the gun was presented. The gun was found in an unusual location that corresponded to the path of Crawley’s escape route from Smith’s apartment. There was testimony that a handgun matching the description of this gun was used during the robbery. The trial court did not err in allowing the gun into evidence.

Decided November 18, 1999.

Daniel Conaway, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Robert E. Statham III, Assistant District Attorneys, for appellee.

4. Crawley’s enumerations of error 5 and 6 are not supported in his brief by argument or citation of authority and, under Rule 27 (c) (2) of this court, are deemed abandoned.

5. Crawley’s remaining enumerations of error challenge the sufficiency of the evidence to support his convictions for burglary, armed robbery, and aggravated assault. We must reverse under Jackson v. Virginia if “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” But the evidence showed that Smith’s door had been forced open and that Crawley and Lomax had robbed Smith at gunpoint, ransacked his apartment and threatened to shoot to kill Smith and the woman. This evidence was sufficient to support the jury’s verdict beyond a reasonable doubt.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       OCGA § 17-16-4 (c).

        Wall v. State, 269 Ga. 506, 508 (2) (500 SE2d 904) (1998).

       See Sims v. State, 226 Ga. App. 116, 118 (4) (486 SE2d 365) (1997).

       443 U. S. 307, 324 (99 SC 2781, 61 LE2d 560) (1979).