author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A1963.
    DESAI et al. v. SILVER DOLLAR CITY, INC.
    (493 SE2d 540)
   Birdsong, Presiding Judge.

Mrs. Desai appeals the grant of summary judgment to Silver Dollar City, Inc., doing business as White Water Theme Park, on her claim against White Water based upon an injury she sustained to her knee while using one of the theme park’s water slides. The trial court also granted summary judgment on Mr. Desai’s claim for loss of consortium.

Mrs. Desai’s deposition testimony shows that she was a frequent visitor to White Water and that she and her family had season passes for at least three years, including the year she was injured. In fact, by the day of her injury, June 26, 1994, this was the fourth or fifth trip to White Water that year. Mrs. Desai testified that she was injured when, after going down the water slide at White Water in a raft as she had numerous times, she got out of the raft without being told to by an attendant and was struck by another raft. The record also shows that Mrs. Desai had observed the water slide in operation on many occasions.

On the day Mrs. Desai was injured the following announcement was played continuously over the public address system at the beginning of the slide and on the walkway leading to the top of the slide:

“Welcome to Bahama Bob-Slide. This is a thrilling ride. When you get to the top, the lifeguard will instruct you on how to board the raft. Listen carefully to these instructions. While in the raft, sit facing the center with legs crossed and hold onto the handles. Do not lean forward as you might bump heads. Remain seated throughout the entire ride. At the bottom of the ride do not get out of the raft until a lifeguard instructs you to do so. Other rafts will be coming down behind you and the water is shallow. Disregard for these rules may result in injury to yourself or others.” (Emphasis supplied.)

Although Mrs. Desai’s affidavit states that she did not hear this recorded message, she has not disputed that the message was being played.

Further, this sign was posted near the entrance of the slide:

BAHAMA BOB-SLIDE
RATING: THRILLING
WATER DEPTH: 0-3 FEET
RESTRICTION: MAX 6 people per Aquadiscs
HOW TO RIDE
. AQUADISCS:
. PLEASE STAY SEATED ON THE BOTTOM OF YOUR RAFT
. HOLD ON TO ONE OF THE HANDLES
. RENTAL TUBES CAN BE CARRIED TO TOP OF PLATFORM AND WILL BE SENT DOWN POOL
. PICK-UP AT BOTTOM OF RIDE
CAUTION
. DO NOT EXIT RAFT UNTIL ATTENDANT INSTRUCTS YOU TO
. DO NOT STEP ONTO CONVEYOR
. FAILURE TO ABIDE BY THESE RULES MAY RESULT IN INJURY TO YOUR SELF OR OTHERS

Although Mrs. Desai admits she definitely read the sign the first time she rode in 1992 or 1993, she testified that she did not read the sign on the day of the incident even though nothing prevented her from reading it. Nevertheless, Mrs. Desai testified that two years earlier when she read the warning sign, she knew that she should wait for an attendant to tell her to exit the raft even though she may not have remembered that on the day she was injured because she was not consciously thinking about it.

In response to a question concerning whether she knew that she should wait for the attendant before exiting the raft, Mrs. Desai testified: “See, what happened, I came out immediately from the thing. I didn’t have any problem to come out. Okay. My mother was with me, who was 65 years old. I wanted to make sure she got off properly from the ride. Because it was wobbly, on the water, the raft. So I was holding her raft so she can get off. And the lifeguard at that time was not present. They were doing something. And I wanted to make sure she got off. Because I was worried about her being the older person, and so she could come up safe. And I had no idea the raft from the back would come up and hit me from the back. And I was unaware of that.”

Mrs. Desai testified that her mother wanted to go on a slide and Mrs. Desai selected the Bahama Bob-Slide because she had been on it herself so many times. Mrs. Desai testified that she went in one raft with her children and her mother and others from her family went in another raft. She testified that, “I came out immediately, as soon as — because of — you know, because I wanted to make sure it wasn’t any problem for me to get out. Because I wanted to make sure my mother could get up properly because it was wobbling. And she was sixty-five years old. And I was worried about her, that if something happened to her, because she was visiting from India. And I wanted to make sure she didn’t get hurt. Because this was the first ride in her life. So I wanted to make sure. So I was holding the tube so she could get off properly. And I had no idea the other tube came and hit me on the side. And I was not aware of it. And due to the impact, I fell down immediately into the water. At that time, the lifeguard ran to me to help me out.” Mrs. Desai further testified her mother was still seated on the right side of the raft and it was her plan to stabilize the raft so that her mother could get out. Mrs. Desai also testified that on all of her previous rides on this slide she also exited the raft without the assistance of lifeguards.

Thus, Mrs. Desai’s deposition establishes that she left the raft first because she wanted to make sure her mother got out safely. Mrs. Desai also testified that she could not recall whether there was any reason why she could not wait for a lifeguard to assist her from the raft or whether there was any sense of urgency on her part to get out of the raft. In response to the question that, “[i]n other words, there was nothing that would have prevented you from waiting for the lifeguard to come and help you get out of the raft,” Mrs. Desai responded, “I don’t remember, sir. I did not think about it.” And in response to the question that, “[t]o your recollection, there was nothing that prevented you from waiting on the lifeguards,” Mrs. Desai answered, “Sorry. I don’t remember anything about that. It was a routine thing. And we just did the routine things.”

Mrs. Desai also testified that her children were getting out of the raft at the same time she was getting out and her mother was the last one to get out of the raft. Further, Mrs. Desai testified that, although she knew another raft would be coming down the slide, she did not expect it to be that close in time, and she never looked to see if another raft was coming.

In response to White Water’s motion for summary judgment, Mrs. Desai submitted an affidavit that states that she did not hear the recorded message, and she further testified that her mother panicked and attempted to get out of the raft by herself, head first; that Mrs. Desai looked for lifeguards but they were 25 feet away doing something with rafts and the conveyor system; that she jumped out of the raft to help her mother; and that it was no longer than 15 seconds before she was hit. Additionally, Mrs. Desai’s unverified complaint alleges that Mrs. Desai stepped out of the raft “to assist her mother out of the raft.”

The record also shows that Mrs. Desai is a certified public accountant who works as a senior accountant for the Federal Deposit Insurance Corporation managing several departments. She graduated from college with degrees in physics and chemistry.

After White Water moved for summary judgment contending that Mrs. Desai assumed the risk of her injuries, the trial court granted summary judgment on both Mrs. and Mr. Desai’s claims. This appeal followed. The Desais contend the trial court erred by granting summary judgment because genuine issues of material fact remain for trial. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746). Further, 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). 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. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535).

2. Because White Water’s motion for summary judgment was based on the affirmative defense of assumption of the risk, White Water had the burden of proving all the elements of that defense. Based upon the evidence set forth above, there can be no reasonable dispute but that White Water met that burden.

Both the recorded announcements and the posted sign clearly advised Mrs. Desai that she should remain in the raft until a lifeguard assisted her. For her own reasons, however, she disregarded those repeated warnings. Moreover, Mrs. Desai’s deposition testimony plainly shows that there was no emergency requiring her to leave the raft before she was instructed to do so. As she testified, “it was a routine thing. And we just did the routine things.”

Mrs. Desai’s affidavit is of no assistance to her because her affidavit contradicts her deposition in most every significant portion and she provided no explanation for these blatant contradictions. On motion for summary judgment a party’s self-conflicting testimony is to be construed against her unless a reasonable explanation for the contradiction is offered. Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680). Because Mrs. Desai offered no explanation for the obvious contradictions between her deposition and her affidavit, the trial court was required to eliminate the favorable.portions of her contradictory testimony, then take all testimony as it then stood and construe it in favor of the party opposing the motion in determining whether summary judgment should be granted. Prophecy Corp. v. Charles Rossignol, Inc., supra at 28. Applying this rule and construing Mrs. Desai’s deposition testimony in favor of White Water leaves only the evidence that she wanted to get out of the raft first to help her mother, who remained seated in the raft at the time. Also remaining is Mrs. Desai’s testimony stating that her getting out of the raft was a routine thing for her and that she knew that other rafts would be coming down the slide behind her.

Additionally, assuming this Court had been permitted to credit the unexplained contradictory statements in Mrs. Desai’s affidavit, those statements would not help her case. Who created this problem? Not White Water. Instead, it was created solely by Mrs. Desai’s voluntary actions when both Mrs. Desai and her mother should have remained seated. The record shows clearly and palpably that this was a problem of their own creation. Further, the mother’s wish to get out of the raft was not the result of any act or omission of White Water. These actions of Mrs. Desai and her mother were the proximate cause of Mrs. Desai’s injury as a matter of law.

3. Considering this evidence, the only possible conclusion is that Mrs. Desai assumed the risk. “The defense of assumption of risk requires: (1) that the plaintiff had some actual knowledge of the danger, (2) that [she] understood and appreciated the risk therefrom, and (3) that [she] voluntarily exposed [herself] to such risk. Stated another way: The doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from [her] freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law [she] has assumed all risk of injury. In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given [her] consent to relieve the defendant of an obligation of conduct toward [her], and to take [her] chances of injury from a known risk arising from what the defendant is to do or leave undone. In by far the greater number of cases, the consent to assume the risk has not been a matter of express agreement, but has been found to be implied from the conduct of the plaintiff under the circumstances. General Tel Co. v. Hiers, 179 Ga. App. 105, 106-107 (2) (345 SE2d 652).” (Citation and punctuation omitted.) Young v. Brandt, 225 Ga. App. 889, 891 (485 SE2d 519).

“In assessing whether a plaintiff had the requisite knowledge of the danger and appreciation of the risks, a subjective standard applies, that is, what the particular plaintiff knew, understood and appreciated. [Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866)]; Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (409 SE2d 524) (1991). A plaintiff lacking such subjective knowledge of the danger will not be taken to have assumed the risk even though his conduct may be deemed contributory negligence for his failure under an objective knowledge standard to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824.” Sutton v. Sumner, 224 Ga. App. 857, 859 (482 SE2d 486).

In this case, we find that the undisputed evidence shows that Mrs. Desai had actual knowledge of the danger because she was warned not to get out of the raft until instructed to do so, she knew that other rafts would be coming down the slide and she knew, because she was warned, that she might be injured if she left the raft. Although in many other instances, Mrs. Desai did not suffer the consequences of her action, in this instance the risk of injury she voluntarily assumed came to pass. In effect, even though she was warned do not do this or you might get hurt, Mrs. Desai tested the danger until she was hurt. It defies both logic and our law to permit a recovery under this evidence.

4. Further, although the dissent discusses many possible acts of negligence whether active or passive, e.g., failure to communicate between the top and bottom of the slide, lifeguards not immediately present, etc., the obvious fact remains that none of these acts would have resulted in Mrs. Desai’s injury if she had remained in the raft as she was instructed. It is not the individual acts of negligence to which one must consent, but the known risks arising from the chosen acts or omissions of the plaintiff. Mrs. Desai plainly and without dispute assumed the risk of her injury.

5. “Although assumption of the risk is ordinarily a jury question (Taylor v. Bloodworth, 198 Ga. App. 186, 187 (400 SE2d 691)), in plain, palpable, and indisputable cases resolution of the issue by a jury is not required. Moore v. Service Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480).” Young v. Brandt, supra at 891. Accord Daves v. Shepherd Spinal Center, 219 Ga. App. 835 (466 SE2d 692). This is such a case.

6. As Mr. Desai’s cause of action is derivative of his wife’s claim, the trial court also properly granted summary judgment on his claim as well. Hall v. Garden Svcs., 174 Ga. App. 856, 858 (332 SE2d 3).

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Andrews, C. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

I am compelled respectfully to dissent from the analysis and holding by the majority for the reasons that follow.

At the bottom of the slide, attendants were assigned to catch the raft and guide it to a safe landing place, so that it would not be struck when following rafts entered the lower pool. The attendants at the top and bottom of the slide were not in communication, either by radio, hand signals, mechanical signal, or signal light, and simply guessed at what intervals to release the next raft down the slide, because the bottom of the slide could not be seen from the top. The attendants at the top of the slide did not know that there were no attendants in place at the bottom in the landing pool, because these attendants were elsewhere, moving rafts to the conveyor belt as part of their duties. The attendants at the top of the slide released rafts at no set intervals. The rafts decelerated as they crossed the landing pool and approached the place of disembarkation.

The so-called warning signs and auditory instructions commanded the plaintiff to stay seated in her raft and not to attempt to get out without the assistance of the attendants; however, all the so-called warnings failed to inform the plaintiff of any danger or the specific danger which injured her, i.e., being struck by another raft. In fact, the warning signs warned of no specific dangers; the nonspecific warnings were, in fact, a command that the passenger was not to stand up or attempt to exit the raft or they might be injured. These so-called warnings were to control the passengers’ conduct and not to protect the passengers; if the protection of passengers was, in fact, the true purpose of the signs and intent of the defendant, then the attendants would have been in place to receive them safely at the bottom of the slide instead of doing a less important job of returning rafts. By commanding the passengers to remain docilely in the rafts like a herd of animals, fewer attendants were necessary, because the attendants could go place the rafts on the conveyor belt for return, while the passengers sat obediently, waiting for the attendants to return to the rafts. This was crowd control!

Mrs. Desai and her family rode the Bahama Bob-Slide, but when their raft reached the bottom of the slide (flume), there were no attendants to catch the raft and guide it to safety. The raft glided across the landing pool and came to a stop. Plaintiffs mother, who was elderly, started to get out, but had difficulty attempting to exit the raft without the assistance of the attendants. Plaintiffs mother seemed to panic and wanted to get out of the raft immediately without waiting for the attendants. Plaintiff got out of the raft to prevent her mother from falling out of the raft and to steady the raft so that her mother could get out without falling.

The next raft, launched without warning, came down the slide, crossed the length of the landing pool, and struck plaintiff, who was at the rear side of the raft, injuring her. Plaintiff was unaware that the next raft had been launched without warning or would arrive after such a short interval to place her in danger of being struck if she was in the water. The collision of the second raft with the plaintiff occurred at the end of the landing pool where patrons were to disembark. At the time plaintiff was struck by the second raft, she was standing near the left rear portion of the raft in the pool with her hands on the raft, facing her mother, who had been seated on the right side of the raft. Plaintiff was struck within 15 to 30 seconds after she got into the pool.

The attendants, who had been at the bottom of the slide prior to the launch of plaintiff’s raft, were then busy elsewhere, sending rafts up the conveyor belt some 25 feet away when plaintiff’s raft came to a stop. Although the attendants were only twenty-five feet and approximately ten seconds away, they were not at the point of disembarkation when plaintiff’s raft stopped; did not warn plaintiff or her mother to stay seated and to remain in the raft until they could provide assistance; and did not warn plaintiff to look out for the approaching second raft after she got into the pool. They were too busy clearing other rafts from the pool, to help, look, or warn. If they had bothered to look, the attendants were close enough to see what was happening and to warn her before she was struck. After the plaintiff was struck, it took the attendants only ten seconds to reach her.

(a) The first issue that should have been addressed by the majority was whether or not, under OCGA § 9-11-56 (e), the burden of production of evidence shifted to the plaintiff/non-moving party to show negligent acts or omissions of the defendant/moving party and whether evidence existed that negates the possibility of plaintiff showing negligence on the part of the defendant owner/occupier and its employees. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Greenforest Baptist Church v. Shropshire, 221 Ga. App. 465 (471 SE2d 547) (1996); Crosson v. Lancaster, 207 Ga. App. 404 (427 SE2d 864) (1993). The defendant failed to show that it was free from negligence.

In this case, there were two kinds of negligence asserted against the owner: (1) passive negligence or a static condition, i.e., the inability of the attendants to see from the top of the flume to the landing pool, the inadequacy of the visual or auditory warnings, and the lack of communications between the employees in éach of these areas; and (2) active negligence by the employees, i.e., sending the rafts down the flume at unsafe intervals; failure to be at the landing to assist, instead of putting rafts on the conveyor belt; failure of the attendant to warn the plaintiff and her mother to remain seated after they reached the landing pool and to remain in the raft when plaintiff started to get out; and failure to warn of the approach of the second raft after plaintiff got out of the first raft and placed herself in a position of peril without realizing the imminent danger to herself. Lipham v. Federated Dept. Stores, 263 Ga. 865, 866 (440 SE2d 193) (1994). The majority fails to distinguish between these two distinct kinds of negligence and insists that the acts of the employees were not active negligence.

The presence of the warning sign and the audio warning demonstrated fact questions as to whether there was a breach of the duty to warn adequately and specifically of known dangers by the owner/ occupier of the existence of active, as well as passive, dangers and as to the adequacy of the warning. The giving of the warnings acknowledged the existence of dangers and risks, but failed to identify the dangers, so that patrons could exercise ordinary care for their own safety to avoid such identified dangers. The “warnings” were diluted into commands to do a specific thing to avoid any and all possible risks without revealing specifically those risks, as if given to young children, the usual patrons who were accustomed to obeying directions blindly. For all a reasonably prudent adult could perceive from the warnings given, such instructions were mere crowd control directions that were given to help management and not to protect the patrons. The content of the message totally failed to bring home to the receiver the appreciation that there were any specific dangers to guard against. The obvious reason for the inadequacy of warning was to dilute the message of danger and to cause a sense of well-being, instead of alarm and alertness to danger, in this place of family fun. Management did not want to scare patrons away from returning to this potentially dangerous place; adequate warnings would be very bad for business. Patrons who are frightened for their and their children’s safety do not return.

The act of sending the second raft down blindly and too close in time to the first raft and not having attendants at the landing pool to assist in the disembarkation raised factual questions as to the employees’ active negligence. The acts of the attendants in loading the rafts onto the conveyor belt, instead of watching plaintiff’s raft and warning her either to sit down and stay in the raft, or to look out for the second raft when it was about to hit her, raised issues of active negligence. See Lipham v. Federated Dept. Stores, supra. Plaintiff’s evidence created material issues of fact as to whether or not White Water and its employees were negligent.

(b) The second issue to be decided was whether or not the defendant made out a prima facie affirmative defense by proving through competent evidence each and every element of such affirmative defense, for which it had the burden of proof both at trial and on summary judgment. Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485). (1994); Lau’s Corp. v. Haskins, supra; Hornbuckle Wholesale Florist of Macon v. Castellaw, 223 Ga. App. 198 (477 SE2d 348) (1996) (McMurray, P. J., dissenting); J. H. Harvey Co. v. Edwards, 219 Ga. App. 697, 698 (466 SE2d 246) (1995); Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994). This the defendant also failed to do.

White Water raised two affirmative defenses: (1) contributory negligence by the plaintiff; and (2) assumption of the risk by the plaintiff. If White Water made out each of the elements of either defense or both and plaintiff failed to produce evidence to raise a material issue of fact as to either affirmative defenses, then the defendant was entitled to summary judgment as a matter of law.

(1) White Water had the burden of proof both at trial and on motion for summary judgment as to the affirmative defense of contributory negligence by the plaintiff in failing to exercise ordinary care for her own safety. Hodge v. SADA Enterprises, 217 Ga. App. 688, 691 (458 SE2d 876) (1995); Stewart v. Mynatt, 135 Ga. 637 (70 SE 325) (1911); City Council of Augusta v. Hudson, 88 Ga. 599 (15 SE 678) (1891); Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856, 857 (3) (328 SE2d 746) (1985).

Contributory negligence is comprised of two separate and distinct defenses. See Savannah Elec. Co. v. Jackson, 132 Ga. 559, 562 (2) (64 SE 680) (1909); Savannah, Fla. &c. Co. v. Stewart, 71 Ga. 427, 428 (2) (1884); Whatley v. Henry, 65 Ga. App. 668, 673-674 (6) (16 SE2d 214) (1941). “[Fjirst the plaintiff must at all times use ordinary care for [her] own safety; that is, [she] must not by [her] own negligence (or consent) proximately cause [her] own injuries; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant’s negligence when it is apparent or when in the exercise of ordinary care it should become apparent. . . . Comparative negligence is applicable only when the jury has not found either the negligence of the plaintiff or that of the defendant to be the sole proximate cause. [Cits.]” Whatley v. Henry, supra at 674; see also Edwards v. Trammell, 187 Ga. App. 22, 24 (369 SE2d 288) (1988); Leonardson v. Ga. Power Co., 210 Ga. App. 574, 576 (436 SE2d 690) (1993).

Absent the negligence of White Water’s attendant launching the second raft too soon, without knowing the status of the occupants of the first raft or of the location of the lower attendants, plaintiff would not have been injured; plaintiff’s conduct was not the sole proximate cause of her injury but only concurred in the proximate cause with the negligence of the defendant. Therefore, the plaintiff was, at most, comparatively negligent.

“Comparative negligence by the plaintiff is that negligence which joins with the negligence of the defendant in proximately causing the injuries of the plaintiff and goes in reduction of the amount of recovery in proportion that the negligence of the plaintiff compares with that of the defendant, resulting, by reduction, in a bar of recovery when the negligence of the plaintiff is equal to or greater than that of the defendant.” Whatley v. Henry, supra at 674.

While plaintiff could see that the attendants were busy loading rafts 25 feet away and were not available to immediately help her get her mother out of the raft, the raft was unsteady as her mother attempted to stand. The only apparent danger appeared to her to be that either the raft would turn over with her mother standing up or that her mother would fall over the side of the raft. Plaintiff’s mother’s conduct immediately created a dangerous situation, which plaintiff could resolve in either of two ways: (1) her mother could sit back down and remain seated; however, the mother seemed to panic and could not be reasoned with, which reduced the feasibility of this alternative and her mother was an adult with a mind of her own; or (2) plaintiff could climb out and steady the tossing raft to prevent her mother’s fall, which she did. The negligence of the attendant on top of the flume in launching the second raft too soon and without warning was not immediately apparent to plaintiff, although she may have reasonably anticipated such conduct. However, no one has a duty to anticipate the active negligence of another. Poppell v. Smutney, 106 Ga. App. 480 (127 SE2d 335) (1962); Beadles v. Bowen, 106 Ga. App. 34 (126 SE2d 254) (1962); Economy Gas &c. Co. v. Kinslow, 74 Ga. App. 418 (39 SE2d 899) (1946).

A plaintiff has no duty to avoid the active negligence of another until such negligence has, in fact, occurred and is known by the plaintiff or, by the plaintiff’s exercise of ordinary care and diligence, should have been apparent to her; thus, until the second raft was launched and she saw it or should have seen it, she had no duty to anticipate or avoid the second raft. Newman v. Collins, 186 Ga. App. 595, 596 (1) (367 SE2d 866) (1988); Seaboard Coast Line R. Co. v. Clark, 122 Ga. App. 237, 240 (5) (176 SE2d 596) (1970).

In this case, while plaintiff may have known that other rafts were launched within short intervals, such general knowledge was not knowledge that, on this specific occasion, the other raft would be launched less than 30 seconds after the first raft, that no warning of the launch would be given, that the raft would cross the landing pool and collide with the other raft or her, or that the raft would have such force as to cause her injuries. Plaintiff’s negligence, if any, was not the sole proximate cause of her injury, but goes instead to the defense of comparative negligence, which is a jury question under the facts and circumstances of this case.

Further, the audio and visual “warnings” did not warn of any specific danger, but gave only commands and instruction as to the general conduct of patrons which could lead to injury, without revealing the potential dangers of such conduct. Thus, the warnings failed to adequately provide a notice of any actual or potential dangers; the warnings merely commanded certain conduct without identifying the dangers, which does not constitute a proper and adequate warning.

(2) Assumption of the risk occurs “[w]hen a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the taking of such a risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for [her] own safety, [she] cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of such other person.” Deere & Co. v. Brooks, 250 Ga. 517, 518-519 (1), (2) (299 SE2d 704) (1983); Newman v. Collins, supra at 596; see also City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995); Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988); Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 669-670 (88 SE2d 6) (1955); see also Fountain v. Thompson, 252 Ga. 256, 257 (312 SE2d 788) (1984).

“Testing a known peril acts as a transition between the concepts of avoidance and assumption of the risk. ‘One who recklessly tests an observed and clearly obvious peril is guilty of lack of ordinary care,’ Brooks v. Douglas, 154 Ga. App. 54, 58 (2) (267 SE2d 495) (1980) (two judges only), and is guilty of such negligence ‘which will be deemed the proximate cause of [the] resulting injury, and, in the absence of wilful or wanton misconduct by the defendant, will preclude recovery.’ Laseter v. Clark, 54 Ga. App. 669, 670 (1) (189 SE 265) (1936).” Newman v. Collins, supra at 596.

“Taylor v. Morgan, 54 Ga. App. 426 (188 SE 44) (1936), and other cases, appear to blend or merge the two concepts of avoidance and assumption of the risk when they are separate and distinct. Assumption of risk in its simplest and primary sense means that the plaintiff has given [her] express consent to relieve the defendant of an obligation of conduct toward [her] and to take [her] chance of injury from a known risk. Owens-Ill. v. Bryson, 138 Ga. App. 78, 79 (225 SE2d 475) (1976). Also, plaintiff with knowledge of the risk may be regarded as tacitly or impliedly agreeing to take [her] own chances. Id. at p. 79. In working out the distinction, the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it. Roberts v. King, [102 Ga. App. 518, 521 (1) (116 SE2d 885) (1960)]. The doctrine of avoidable consequences does not rest upon the idea that defendant is relieved of any duty toward plaintiff, but denies recovery for any damages which could have been discovered by plaintiff or might have been avoided by reasonable conduct on plaintiff’s part. Osborn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980). Avoidance of the consequences involves the failure to take action to overcome defendant’s negligence after it is discovered by plaintiff’s exercise of ordinary care. Lanier v. Turner, 73 Ga. App. 749, 753 (38 SE2d 55) (1946). The rule which requires one to avoid the consequences of another’s negligence does not apply until [she] sees the danger or has reason to apprehend it. Central R. &c. Co. v. Attaway, 90 Ga. 656, 661 (16 SE 956) (1892). See Griffin v. Campbell, 112 Ga. App. 420 (2) (145 SE2d 659) (1965); Smith v. 670 New Street, 111 Ga. App. 35, 38 (140 SE2d 495) (1965); Economy Gas &c. Co. v. Kinslow, [supra at 420].” (Punctuation omitted.) Newman v. Collins, supra at 596-597.

For the affirmative defense of assumption of the risk to be applicable to this case, there must be evidence that “the plaintiff had actual knowledge of the dangerous situation that resulted in [her] injury, and an appreciation of the risks associated with that dangerous situation.” (Emphasis supplied.) Vaughn v. Pleasent, 266 Ga. 862, 863 (471 SE2d 866) (1996). “The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that [she] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant 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 of the risk is the watchword of assumption of risk, and 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.” (Citations, footnotes, and punctuation omitted; emphasis supplied.) Id. at 864; see also Smith v. Mangram, 222 Ga. App. 585, 586 (474 SE2d 758) (1996); York v. Winn-Dixie Atlanta, 217 Ga. App. 839 (459 SE2d 470) (1995); Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 94-95 (3) (449 SE2d 618) (1994). Thus, the Supreme Court has returned tort law to again requiring subjective knowledge and appreciation of the danger before the affirmative defense of assumption of the risk bars recovery; subjective knowledge and appreciation of the specific danger has not been shown in support of this motion for summary judgment and remains a question of fact for the jury. The majority chooses to ignore this requirement in order to affirm by reference to general awareness of danger, which the Supreme Court held was not adequate to prove assumption of the risk as a bar.

While warnings of a kind existed in this case, the warnings were general in nature and not specific as to what dangers existed. The warning was that passengers should not attempt to get out of the raft; the warnings did not specify as the danger that the passenger could be struck by another raft; such warning could have caused a reasonable person to believe that the danger was tipping the raft or falling down or out of the raft, not being struck by another raft. For assumption of the risk to bar recovery, the plaintiff must be aware of the specific danger and choose to risk such specific danger. Seibers v. Dixie Speedway, 220 Ga. App. 811, 813 (3) (470 SE2d 452) (1996); Turner v. Sumter Self Storage Co., supra at 94.

In this case, the plaintiff asserted that she believed that the danger was in tipping the raft or falling, and that to protect her elderly mother, she got out of the raft to steady it.

“As a general rule, whether a party assumed the risk of [her] injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence. Taft v. Taft, 209 Ga. App. 499, 500 (433 SE2d 667) [(1993)].” Turner v. Sumter Self Storage Co., supra at 94. The defendant in this case failed to make out a prima facie affirmative defense of assumption of the risk, because subjective knowledge of the specific danger and appreciation of such danger has not been shown. This was not a plain, palpable and undisputed evidence case, although the majority seeks to make it appear as such.

(3) Plaintiff was confronted by what she perceived was a sudden emergency; her mother had attempted to get out of the raft, experienced problems, and seemed to panic. Therefore, a jury issue arose as to whether the facts and circumstances actually presented a sudden emergency and, if so, did she exercise ordinary care under the facts and circumstances of getting out to steady the raft, instead of making her mother sit down and wait for the attendants. The elderly mother created the situation; plaintiff merely reacted to her mother. In an emergency, one is not held to the same accuracy of judgment that would be required when there is more time for deliberation. Bass v. Seaboard Air Line R. Co., 205 Ga. 458 (53 SE2d 895) (1949); see also Artlip v. Queler, 220 Ga. App. 775 (470 SE2d 260) (1996); Johnston v. Woody, 148 Ga. App. 152 (250 SE2d 873) (1978); Gordon v. Gordon, 133 Ga. App. 520 (211 SE2d 374) (1974). If plaintiff was, in fact, negligent and presented with a sudden emergency, then it was for a jury to determine whether or not plaintiffs negligence was the sole proximate cause of her injury, was equal to or greater than the negligence of the defendant, or was less than the negligence of the defendant. The jury would have to decide if this was an assumption of the risk which would negate the exception of sudden emergency or if it was ordinary negligence on the part of the plaintiff so that sudden emergency and comparative negligence would be applicable.

Sudden emergency only applies to those acts immediately following a realization of peril or crisis and before there is time for mature reflection as to the safest course of conduct, thus it cannot apply when there was an assumption of the risk. Brock v. Avery Co., 99 Ga. App. 881 (110 SE2d 122) (1958); Stripling v. Calhoun, 98 Ga. App. 354 (105 SE2d 923) (1959); see also MARTA v. Mehretab, 224 Ga. App. 263, 264 (1) (480 SE2d 310) (1997); Thomas v. Stairs, 215 Ga. App. 288 (450 SE2d 326) (1994). Plaintiff may be held to realize the peril of standing up and getting out of the raft in falling or tipping over the raft; however, she was never aware of the peril from the hurtling raft after she successfully exited her own raft.

Whether or not plaintiffs elderly mother’s conduct constituted a crisis or emergency is for the jury to decide, along with the affirmative defenses of contributory negligence, assumption of the risk, and comparative negligence. The majority has taken the above issues from the determination of the jury and decided this case as a matter of law. While this case would probably be decided by a jury adversely to the plaintiff, under OCGA § 9-11-56, plaintiff has the absolute right to have the jury, and not the trial court, decide this case under these facts and circumstances. Lau’s Corp. v. Haskins, supra; Greenforest Baptist Church v. Shropshire, supra; Crosson v. Lancaster, supra.

Decided October 15, 1997

Reconsideration denied November 5, 1997

Rubin & Wildau, Martin H. Rubin, David Markus, for appellants.

Webb, Carlock, Copeland, Sender & Stair, Brian R. Neary, for appellee.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A1010.
    KNAPP v. THE STATE.
    (493 SE2d 583)
   Beasley, Judge.

Knapp was arrested April 24,1996, and convicted of driving with an unlawful blood alcohol concentration as prohibited by OCGA § 40-6-391 (a) (4), effective April 21, 1995, thereafter redesignated subsection (a) (5). Evidentiary, procedural, and jury charge issues are raised.

Knapp failed to stop at a road block license check. One of the officers got in his patrol car, followed Knapp, and stopped his car. Upon approach, the officer detected the odor of alcohol emanating from his breath. Knapp was unsteady on his feet, had red and watery eyes and, when asked if he had been consuming alcohol, said he had had whiskey and beer earlier. The officer conducted standard field sobriety tests and the alcosensor breath test. The results prompted the officer to inform Knapp of his implied consent rights (OCGA §§ 40-5-55 and 40-6-392 (a) (3)), arrest him, and take him to the police station. An intoximeter breathalyzer test showed a blood alcohol content of .16 percent in two sequential samples.

1. Knapp enumerates as error the jury charge in the language of OCGA § 40-6-392 (b). It states, among other things, that there shall be a presumption that the person was under the influence of alcohol as prohibited by paragraphs (1), (2) and (3) of subsection (a) of OCGA § 40-6-391 if the blood alcohol concentration exceeds certain amounts. Knapp contends the charge constituted impermissible burden shifting. This issue was settled in Simon v. State, 182 Ga. App. 210, 212 (4) (355 SE2d 120) (1987). See also Holcomb v. State, 217 Ga. App. 482, 484-485 (3) (458 SE2d 159) (1995); Ellerbee v. State, 215 Ga. App. 102, 104-105 (5) (449 SE2d 874) (1994). Simon held that where not properly qualified, such a charge is impermissibly burden shifting but, even if improperly given, it is not relevant to the determination of any element of the crime defined in OCGA § 40-6-391 (a) (4) and does not require reversal. The clear language of OCGA § 40-6-392 (b) itself shows that the presumptions do not apply to former subsection 391 (a) (4).

Gilbert v. State, 262 Ga. 840, 841 (2) (426 SE2d 155) (1993) is inapposite. In Gilbert, the Supreme Court specifically did not address any question of the relationship between subsection 392 (b) and former subsection 391 (a) (4) because the appellant had been acquitted of violating OCGA § 40-6-391 (a) (4).

2. Knapp next contends he was prevented by the court from showing the possibility of error in the Intoxilyzer 5000 test due to machine malfunction.

The State introduced in evidence the last quarterly certificate of inspection of the intoximeter before April 24, 1996, the date of the test on Knapp. It states that this particular instrument “was thoroughly inspected, tested, and standardized on February 12,1996 and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.” This met the evidentiary requirement that the chemical test conducted on Knapp be proved valid. OCGA § 40-6-392 (a) (1) and (f). In addition, the trooper who arrested Knapp and conducted the test on his breath described how the machine worked and explained the fail-safe mechanisms which preclude testing if the machine is not in perfect operating condition. Both samples taken in the test of Knapp’s breath showed a blood alcohol content of 0.16.

Knapp sought, in cross-examining the trooper, to attack the test by attempting to show the machine was not in good working order and thus not operating properly when he was tested. He may of course do so. As the Supreme Court stated in Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991): “An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction. Such evidence would relate to the weight rather than the admissibility of breathalyzer results.” See also Pratt v. State, 208 Ga. App. 617, 618 (2) (431 SE2d 397) (1993). Cf. Osley v. State, 210 Ga. App. 296, 298 (435 SE2d 705) (1993) (right to introduce evidence limited to evidence of the possibility of error in the machine used to test defendant).

Knapp showed the trooper a document that counsel described as a maintenance sheet of July 19, 1996, from the records of the sheriff’s office. It is styled a “service work order.” The court ruled it inadmissible as not relevant, on the State’s objection. The document indicates the machine was repaired sometime after mid-July but does not shed any light on when the machine first needed repair. Nor does it contain any information which would allow the inference the machine was not functioning properly on April 24, 1996.

Defendant was not permitted to cross-examine the trooper about it but proffered that the officer would have testified that there was no certificate for what would have been the next quarterly inspection on May 12 because the machine was not in good working order on that date. Defendant also proffered that the July 19 document and the officer’s testimony would have shown that various parts of the machine were replaced and that the machine was malfunctioning in June. He did not proffer any evidence tending to show when the machine stopped functioning properly after its February 12 satisfactory inspection or that it was not operating properly on April 24.

In the absence of any other evidence which would link the proffered evidence with the condition of the machine on April 24, when it was used to test Knapp, the proffered evidence would not logically raise a reasonable inference that the machine was not in good working order on that date. Speculation would be needed to make the connection.

The rule is that “Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. This rule “ ‘favors the admission of any relevant evidence, no matter how slight its probative value,’ [cits.], and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. [Cits.]” Baker v. State, 246 Ga. 317, 319 (3) (271 SE2d 360) (1980). But “the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985); Baker, supra.

Applying these principles, we hold that the court did not abuse its discretion; Knapp was not entitled to admission of the proffered evidence as a matter of law, as it was of remote relevance, if any, to the operating condition of the machine on which he was tested on April 24.

3. Enumerated as error is the court’s refusal to give Knapp’s written request to charge on good character. Knapp claims that his testimony about his own character entitled him to the charge.

“In State v. Braddy, 254 Ga. 366, 330 S.E.2d 338 (1985), the defendant testified that he was a church member, taught Sunday School, was an associate minister of youth at his church, and had never been charged with or convicted of a crime. This testimony was allowed as evidence of good character instead of testimony regarding his reputation in the community. The Supreme Court held that the defendant was entitled to a charge on good character after he testified regarding specific acts which he believed established his good character, holding that ‘conduct reveals character as accurately as reputation does.’ [Cits.] . . . [Thus], Braddy, supra, created a second method for introducing good character evidence so as to entitle a defendant to a jury charge on good character; a defendant’s testimony regarding his own conduct.” Etienne v. State, 219 Ga. App. 95, 96 (464 SE2d 396) (1995).

Knapp references no examples of conduct tending to prove his good character, as there were in Braddy but not in Etienne. “This case presents us with precisely the problem anticipated by Chief Justice Hill in his dissent in Braddy. That is, how many instances of good acts as recounted by the defendant will entitle him to a charge on good character? And further, what type of behavior constitutes such good deeds?” Id. at 97. The only evidence Knapp offers is his pure speculation about how he would react under certain hypothetical circumstances, and testimony that could just as easily be interpreted as evidence of bad character, i.e., he felt comfortable driving with his daughters in the car after he drank beer, and the acknowledgment that he has had “a couple of speeding tickets in [his] lifetime.” Cf. Brownlee v. State, 225 Ga. App. 311, 314 (2) (483 SE2d 370) (1997) (character in issue where defendant testified about her past experience and drinking patterns at tavern); Campbell v. State, 221 Ga. App. 105 (470 SE2d 503) (1996) (character in issue where defendant testified about community involvement, including helping disadvantaged and elderly). Knapp was not entitled to the requested charge.

4. Failure to conduct a Jackson-Denno hearing regarding the vol-untariness of certain statements Knapp made during the traffic stop is the next enumeration and is without merit. Such a hearing is only required where the statements sought to be introduced were made by a defendant in custody. Gilstrap v. State, 159 Ga. App. 11 (282 SE2d 644) (1981). A person is “in custody” if a reasonable person in the detainee’s position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984).

In Trudewind v. State, 224 Ga. App. 223 (480 SE2d 211) (1996), an officer initiated a traffic stop after he observed a vehicle weaving, crossing over into the oncoming lane of traffic, and driving onto the shoulder of the roadway. The officer requested the driver’s license and proof of insurance. As he produced the items, the officer detected a strong odor of alcohol on the driver’s breath and noticed that his eyes were bloodshot. The results of the subsequent field sobriety tests were admissible because the driver was not in custody as defined in Berkemer at the time of the tests.

Similarly, in Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988), after an officer stopped a driver and asked him to produce his driver’s license and proof of insurance, the officer detected the odor of alcohol on the driver’s breath. When asked if he had been drinking, the driver indicated he had. The driver was not placed under arrest until after the driver performed routine field sobriety tests and took an alcosensor test which showed positive results. The statement that the driver had been drinking was admissible despite the lack of a pre-statement Miranda warning and the absence of a Jackson-Denno hearing on voluntariness.

Decided November 5, 1997.

McDonald & Cody Law Offices, Douglas W. McDonald, Jr., for appellant.

Malcolm S. Campbell, for appellee.

There is no more evidence that Knapp was in custody than in Trudewind and Lipscomb.

5. Lastly, Knapp contends the court failed to require the State to lay a proper foundation before introducing evidence of the alcosensor results.

The admissibility of such evidence is not governed by OCGA § 40-6-392 when the alcosensor is not used as evidence of the amount of alcohol in a person’s blood, Turrentine v. State, 176 Ga. App. 145, 146 (335 SE2d 630) (1985), so the State need not lay the foundation required for test results on devices subject to OCGA § 40-6-392. Gray v. State, 222 Ga. App. 626 (1) (476 SE2d 12) (1996). Cf. Channell v. State, 172 Ga. App. 156 (322 SE2d 356) (1984) (alcosensor results inadmissible without proper foundation where results used to indicate blood alcohol level).

Nevertheless, where the testimony offered by the State is that the alcosensor showed evidence of alcohol on the defendant’s breath, the cases are consistent in that, at a minimum, the officer administering the test must testify that he used “a device of a design approved by the Director of the Division of Forensic Sciences” of the Georgia Bureau of Investigation. Rule 92-3-.06 (3), Rules of the Georgia Bureau of Investigation; Aman v. State, 223 Ga. App. 309, 310 (1) (477 SE2d 431) (1996); Ronskowsky v. State, 190 Ga. App. 147, 148 (2) (378 SE2d 185) (1989); Gray, supra at 630; Turrentine, supra at 146.

Despite objection by defense counsel both before and during trial, the court erroneously allowed testimony of the alcosensor results without first requiring the foundation described in Gray. The officer testified “I gave him the alco-sensor test, which was positive.” Given the totality of the evidence, it is highly probable that this did not affect the jury’s verdict. It thus does not constitute reversible error. Johnson v. State, supra, 238 Ga. at 61; Simms v. State, 223 Ga. App. 330, 333 (477 SE2d 628) (1996); Abdsharafat v. State, 195 Ga. App. 837 (395 SE2d 61) (1990).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A97A1147.
    GOURLEY v. FOOD CONCEPTS, INC.
    (493 SE2d 587)
   McMurray, Presiding Judge.

Plaintiff Honna Hendrickson Gourley brought this tort action against defendant Food Concepts, Inc., doing business as Sizzler Restaurant, seeking to recover for personal injuries sustained when she slipped and fell in defendant’s establishment. After discovery, the trial court granted defendant’s motion for summary judgment, concluding the undisputed evidence showed plaintiff knew or should have known of the hazard posed by the wet and slippery floor near the salad bar in defendant’s restaurant. Held:

“[I]t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely [her] knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which [plaintiff] observes and avoids.” (Emphasis in original.) Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (2), 16 (288 SE2d 846).

Viewed in the light most favorable to plaintiff as the non-movant, the evidence indicates that plaintiff and her son, nearly 13-year-old Hugh Hendrickson, entered defendant’s establishment at approximately 11:30 a.m., i.e., when defendant first opened for business to the public for that day. Someone had to unlock the door with a key. Plaintiff’s son immediately noticed the “tile floor . . . was very slippery and it was glossy because of the water. It gave it a glossy shine to it. . . . There were no wet floor signs. . . . There was nothing in the hallway that said caution, [wet or] slippery floor.” Hugh Hendrickson affirmed he “said something to [his] mother” about slipping. At the checkout, plaintiff and her son, “just said [to the cashier] the floor was very slippery.” Once plaintiff and her son selected their table, Hugh Hendrickson went to the salad bar, where “[i]t was very slippery. The whole floor was slippery. [Hugh Hendrickson thought] before [defendant] opened [employees] mopped the floor for sanitary reasons.” Hugh Hendrickson “had to hold on to the salad bar a few times, and [he] walked very carefully back because . . . where the exit and enter is, enter the seating area, was very slippery.” Hugh Hendrickson “mentioned to [plaintiff that he] almost slipped by the salad bar.” Hugh Hendrickson “did not see [his mother] fall.”

Plaintiff affirmed that she has “had a problem with [her] memory since the fall.” She testified that she and her son arrived at defendant’s restaurant “[r]ight when they opened the doors.” Plaintiff did not fall right inside the entrance but “close to the salad bar . . . that food bar.” She fell “[t]he second time to the food bar.” But “when [she] made that first trip to the food bar, [it] was [not] the same area that [she] fell. ... It was a different part” of the food bar. Specifically, she “hadn’t been there before.”

Plaintiff was wearing rubber-soled tennis shoes. She was “[w]alking back to [her] table, walking towards where the table is, . . . but . . . right there close to the food. . . . [Her] two feet just split, started sliding and [plaintiff went] back.” Plaintiff “was knocked out.” She affirmed “that the floor was slick in some way or slippery.” She “just lost control[; her] feet just started sliding.” There was nothing for plaintiff to grab onto, “[i]t happened so quick[ly].” Plaintiff admitted she realized, when she walked into the restaurant, that the floor was slippery “[a]t the front door.” There were no signs or other warnings, “nothing.” “When [plaintiff] went to the salad bar to get [her] son’s stuff, the floor was normal.” She affirmed that “[a]t the time that [plaintiff] went to get the food for [her] son [at one area of the display], [she] did [not] notice [whether] the floor was slippery in the [other] area where [she subsequently] got [her own] food.”

Plaintiff denied the floor was “continuously slippery from [the front entrance] up until [she] got to the table.” When plaintiff first entered the restaurant and noticed the floor was slippery inside the front entrance, she “looked down . . . [and saw] nothing” to indicate a dangerous floor, “no [accumulated] water or nothing.” That is, she “didn’t see anything visible to the eye.” Plaintiff is “sure that the reason [she] fell was because the floor was slick.” She felt the lighting “was adequate.” After her fall, plaintiff “rubbed the floor and it was like there was a film. You couldn’t see it. Nothing was shiny. It was like a Vaseline feel. It was just like a real greasy film was on there, but the light didn’t make it look wet or any color.” This perceived film did not “leave any type of grease mark or any type of wetness on [plaintiff’s] clothes.”

Defendant’s motion for summary judgment contended “there is no evidence of negligence on [its] part. . . particularly since no wax or wax like substance was even used on the floors, and since the Plaintiff had equal or superior knowledge of any ‘slick’ condition on the floor prior to falling and assumed the risk of her injuries.” In support of its motion, defendant submitted the affidavit of Paul Kaigler, Assistant Manager of the Sizzler restaurant, who deposed that the tiled flooring used at the restaurant “is standard flooring frequently and customarily used in the restaurant business. In addition, the tiles are not made of a slippery substance such as marble.” Furthermore, the tiles are not waxed and are cleaned only with soap and water.

Although the dissent concludes that plaintiff “was told by her son of the condition of the floor near the food bar before she fell,” (dissenting opinion, p. 184, post) the evidence, as recited above, indicates only that Hugh Hendrickson told his mother he almost slipped by the salad bar. Any additional but unimparted knowledge held by Hugh Hendrickson of the floor’s slippery condition cannot be imputed to his mother. In plaintiff’s experience, the floor was not continuously slippery from the entrance to the food bars. When plaintiff approached another area of the salad bar to serve herself, there were no visible conditions of accumulated water or fallen food that a prudent patron would see and avoid. Constructive knowledge is not necessarily imputed to the patron who traverses different areas. See Cedartown-Polk County Hosp. Auth. v. Watwood, 195 Ga. App. 321, 322 (393 SE2d 476). In our view, the facts of the case sub judice authorize the favorable inference that the floors had just recently been washed by defendant’s employees with soapy water and were not yet completely dry when someone unlocked the front door and allowed plaintiff and her son to enter the restaurant. Defendant’s knowledge of the presence of soapy water on a floor open to patrons is presumed, since defendant authorized the mopping. Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327); Broomberg v. Hudgens, 206 Ga. App. 797, 799 (3), 800 (426 SE2d 617). Plus, defendant’s cashier was informed of the slippery entrance.

“In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of [her] injury and which could not have been avoided . . . through the exercise of ordinary care.” Alterman Foods v. Ligon, 246 Ga. 620, 624, supra. Defendant is not entitled to summary judgment unless the evidence shows that no genuine issue of material fact remains as to plaintiff’s equal knowledge of the wetness and whether, in the exercise of ordinary care, she could have avoided it. Broomberg v. Hudgens, 206 Ga. App. 797, 799 (3), 800, supra.

Defendant’s omission, in breach of its duty of care to invitees, is established by evidence of a total absence of signs warning patrons of the wet floor. We do not agree with the dissent’s conclusion that plaintiff’s knowledge that the entrance was slippery, combined with her son’s statement that he almost fell near the salad bar, is sufficient notice to make plaintiff’s alleged knowledge of the soapy slippery floor equal or superior to that of defendant’s. Nor does the fact that she successfully negotiated one spot near the salad bar conclusively establish that she should have known of the hazard posed by slippery, soapy water at another area of the salad bar.

“To hold that [defendant] is insulated from potential tort liability for its own negligence because its customers are deemed to have had ‘constructive knowledge’ of an invisible [film of soapy water in one location open to the public] as the result of their actual knowledge of [similar] conditions and hazards [at another location open to the public] would make those customers, in effect, mere trespassers on [defendant’s] premises to whom virtually no duty would be owed with regard to the maintenance of [a slippery, soapy] hazard. We do not understand this to be the law in slip and fall cases. [Cit.] Assuming the proprietor to be at ‘fault’ with regard to the [invisible soapy, slippery] hazard [the proprietor applied near the salad bar], the true issue is whether the invitee was ignorant of that hazard.” Telligman v. Monumental Properties, 161 Ga. App. 13, 14 (2), 16, supra. The record in the case sub judice reveals no evidence that plaintiff’s son expressly mentioned to her the possibility that the floor was slippery due to recent mopping, although that possibility occurred to him. Thus, defendant is incorrect to urge that plaintiff cannot recover under OCGA § 51-11-7, in that she knowingly proceeded to test the obvious risks of a floor with accumulated water. Compare Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 661 (445 SE2d 810). The question whether plaintiff should have appreciated the invisible risk posed by the wet, slippery floor near the salad bar involves proximate cause and comparative negligence. In this case, these are questions for the jury — and not this Court — to determine. “Notwithstanding [defendant’s] evidence concerning the nature of the tile floor and the properties of its cleaner, [plaintiff’s] evidence was sufficient to show that a genuine issue exists [as to the safety of the floor when defendant’s restaurant opened its doors for business]. Additionally, nothing in the record shows that [plaintiff] failed to exercise ordinary care for her own safety [in avoiding the danger posed by the invisible slippery film on defendant’s floor].” BBB Service Co. v. Glass, 228 Ga. App. 423, 435 (1) (491 SE2d 870) (Birdsong, P. J., and Ruffin, J., concurring specially). Since the evidence in the case sub judice reveals the existence of genuine issues of material fact, the grant of summary judgment must be reversed.

Judgment reversed.

Beasley, Ruffin and Eldridge, JJ, concur. Andrews, C. J., Birdsong, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. Because the uncontradicted evidence shows that Gourley had knowledge equal to that of Food Concepts of any defect, I would affirm the trial court’s grant of summary judgment.

Evidence was presented that Gourley knew the floor surrounding the food bar was slippery. According to Hendrickson, while he visited the food bar and walked completely around it as he served his food, he noticed the floor “was very slippery.” It looked shiny and wet, like the floor in the entranceway. Hendrickson stated he had to hold onto the food bar because the floor was so slippery. After Hendrickson returned to his table, he told Gourley he had almost slipped at the food bar. He testified that Gourley then went to the food bar and fell. Gourley did not controvert this testimony that Hendrickson explicitly mentioned the condition of the floor near the food bar.

To recover in a premises liability case such as this, it is incumbent on a plaintiff to show the existence of two elements: (1) fault by the proprietor; and (2) the invitee’s ignorance of the danger. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305) (1992). As to the second element, if the invitee has knowledge equal to that of the proprietor, the invitee is charged with exercising ordinary care for his or her own safety and using all his or her senses to avoid harm. Steele v. Chappell, 222 Ga. App. 451, 452 (474 SE2d 309) (1996). See also Eid v. Great A & P Tea Co., 222 Ga. App. 714, 715 (476 SE2d 25) (1996). Where the invitee “knows of the condition or hazard there is no duty on the part of the proprietor to warn [her] and there is no liability for resulting injury because the invitee . . . has as much knowledge as the proprietor does and then by voluntarily acting, in view of [her] knowledge, assumes the risks and dangers incident to the known condition.” (Citations and punctuation omitted.) O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 241 (1) (390 SE2d 248) (1990). This “superior/equal knowledge” rule “presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care.” (Punctuation omitted.) Id. at 242.

Decided November 5, 1997.

Rubin & Hoyt, Robert P. Hoyt, for appellant.

Food Concepts submitted evidence on motion for summary judgment that Gourley was told by her son of the condition of the floor near the food bar before she fell. As respondent on motion for summary judgment, it was Gourley’s burden to come forward with evidence contradicting this fact. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This she failed to do. The evidence therefore shows that Gourley had equal knowledge of the alleged hazard and nonetheless chose to enter that area and to walk away from the food bar without looking down at the floor. Even assuming that the restaurant had knowledge of some substance on the floor, Gourley elected to traverse the area without looking at the floor despite being warned of its condition and her consequent knowledge of its condition. She failed to exercise ordinary care for her own safety and therefore should not recover. See Steele, O’Steen, Shansab, supra. Although issues of negligence ordinarily require jury resolution, where the facts are plain, as here, summary judgment is proper. Warnke v. Pace Membership Warehouse, 215 Ga. App. 33, 34 (449 SE2d 629) (1994).

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

Baker & Shivers, Thurbert E. Baker, Charles E. Johnson III, for appellee.


author: Ruffin, Judge.

text:
    A97A1330.
    BRIAN REALTY CORPORATION v. DeKALB COUNTY et al.
    (493 SE2d 595)
   Ruffin, Judge.

This action involves Brian Realty Corporation’s (“Brian Realty”) request for a refund of 1992 ad valorem taxes paid on property located in DeKalb County. The superior court granted the county’s motion for summary judgment and denied Brian Realty’s motion for partial summary judgment. Brian Realty appealed, and for the following reasons, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The record shows that in 1986, the owner of approximately 71.73 acres, known as the Perimeter Summit/Lake Hearn Development (“Lake Hearn Property”), sought to rezone the property from residential to office-institutional. The DeKalb County Board of Commissioners rezoned the property to “01 (conditional),” meaning office-institutional with conditions. One of the conditions imposed in 1986 required the owner to set aside approximately 23 acres for a perpetual conservation easement.

The property sat untouched for several years until May 1991, when the new owner of the property, Dalford Associates, L.P. (“Dalford”), filed an “Application for Conditional Zoning Alteration.” The county approved the change in conditions without altering the conditional O&I zoning designation. The conditions affecting the property were listed in the county board of commissioners’ minutes that authorized the change in conditions as well as on an attachment to the minutes. Included in this list of conditions was the 23-acre conservation easement, as well as the requirement that the owner set aside an additional 20 acres for a “10-year restricted area” conservation easement. These two zoning conditions provided that no development permits could be issued until the developer provided the DeKalb County Planning Commission with evidence that the conservation easements had been recorded with the superior court. The easements were not recorded with the superior court until May 1992.

In assessing ad valorem taxes for 1992, the county valued the entire 71.73-acre tract as unimproved land zoned office-institutional. In 1993, after the easement documents were recorded, the county reassessed the taxes, taking into account the recorded easements. On February 8, 1994, the current owner of the Lake Hearn Property, Brian Realty, filed with the county a request under OCGA § 48-5-380 (b) for a refund of taxes paid for 1992, claiming the county failed to consider the zoning conditions requiring the easements that restricted Brian Realty’s use of over 40 acres of the property. After a year passed with no resolution from the county concerning the request, Brian Realty filed suit in superior court pursuant to OCGA § 48-5-380 (c) seeking a refund of not less than $350,000. Brian Realty also raised a 42 USC § 1983 claim, arguing that the “illegal assessment” denied Brian Realty its due process rights and amounted to an illegal taking.

The defendants, DeKalb County and members of the DeKalb County Board of Tax Assessors (collectively “the county”), moved for summary judgment, arguing, inter alia, that Brian Realty’s avenue of recourse was through the procedures of OCGA § 48-5-311, not OCGA § 48-5-380. Brian Realty responded and moved for partial summary judgment, seeking a ruling that it was entitled to a refund because the county failed to consider the zoning conditions.

In granting summary judgment to the county, the superior court ruled that “there was no .error of fact on the tax records as of January 1, 1992 because the [Office & Institutional] designation was correct and the easements were not yet recorded.” The court concluded that while the zoning designation was a matter of fact, the zoning conditions were not. The court said how the easement conditions affected the value of the property was a matter of opinion. Relying on Gwinnett County Bd. of Tax Assessors v. Gwinnett I Ltd. Partnership, 265 Ga. 645 (458 SE2d 632) (1995), the superior court ruled there was no viable action under OCGA § 48-5-380. Brian Realty appealed from this decision.

1. Before addressing the merits of this appeal, we must consider whether Brian Realty was the real party in interest. The county argues that Brian Realty did not have standing to bring this tax appeal because Dalford was the owner of the property at the time of the 1992 assessment and the GE Pension Trust (“GE”) paid the taxes on the property for Brian Realty.

The record shows that while Dalford was listed as owner, it was a legally defunct limited partnership under Delaware law at that time because it only had one partner, Brian Realty. See 6 Del. Code § 17-101 (8) (a limited partnership is a partnership formed by two or more persons). For purposes of winding up its affairs, Dalford quit-claimed all of its interest in the property to Brian Realty on April 10, 1992, which included any interest Dalford would have had to bring the refund action as the owner of the property.

As for GE, although the taxes on the property were paid on checks issued by the trust, Brian Realty is a wholly-owned subsidiary of the trust, according to the GE trustee. GE’s auditor further stated in an affidavit that GE is the sole shareholder of Brian Realty, and that the checks for the 1992 taxes were written on behalf of Brian Realty to pay Brian Realty’s debts. The auditor stated the payments were assessed against Brian Realty’s account, and were “included and deducted as property tax expense on the 1992 income tax returns for Brian Realty.” Given the trustee’s and auditor’s statements, we are satisfied that Brian Realty is the “taxpayer” for purposes of seeking the refund. The county has not offered any evidence contradicting the fact that while GE actually issued the checks, Brian Realty actually paid the taxes since the expenses were charged against Brian Realty’s account.

Even if GE was a proper, party to the suit, it is well established that “summary judgment cannot properly be granted to a defendant on the basis of a real-party-in-interest objection. [Cit.]” Dept. of Human Resources v. Holland, 263 Ga. 885, 887 (2) (440 SE2d 9) (1994). The proper remedy is dismissal, but only after “a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. . . .” OCGA § 9-11-17 (a).

Finally, in that it is peripherally related to the question of the real party in interest, we address the county’s argument that Brian Realty improperly assigned its interests in the refund action to a tax consulting firm, Winthrop & Jones. This argument is contradicted by •the clear terms of the agreement between Brian Realty and Winthrop & Jones. Winthrop & Jones was hired to pursue the tax refund on Brian Realty’s behalf. The refund claim was not assigned in full to the consulting firm; rather, Winthrop & Jones was only to receive a percentage of the amount of the refund it obtained for Brian Realty. Consequently, there was no improper assignment of the refund, which OCGA § 48-5-380 (b) prohibits.

2. We now turn to the merits of Brian Realty’s appeal to determine whether it properly pursued its tax refund claim under OCGA § 48-5-380. In Gwinnett, supra, the Supreme Court of Georgia delineated the differences between the procedures for appealing ad valorem taxes under OCGA § 48-5-311 and those under OCGA § 48-5-380. The court held that “while the appeal process of OCGA § 48-5-311 is available to address any asserted error in an ad valorem real property tax assessment, the refund process established by OCGA § 48-5-380 is intended only to correct errors of fact or law which have resulted in erroneous or illegal taxation.” Id. at 646-647. “If the taxpayer alleges that the assessment is based on matters of fact in the record which are inaccurate, or that the assessment was reached by the use of illegal procedures, then the taxpayer has asserted a claim that the taxes were ‘erroneously or illegally assessed and collected,’ which is what [OCGA] § 48-5-380 addresses. A claim based on mere dissatisfaction with an assessment... is not. . . one which asserts that an assessment is erroneous or illegal within the meaning of [OCGA] § 48-5-380.” Id. at 647.

For ad valorem tax purposes, “[a]ll property shall be returned for taxation at its fair market value. . . .” (Emphasis supplied.) OCGA § 48-5-6. The county’s tax assessor was required to ascertain the fair market value of Brian Realty’s property, which is the “amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale.” OCGA § 48-5-2 (3). Among other factors to be considered in determining fair market value, OCGA § 48-5-2 (3) (B) (i) provides that the tax assessors shall consider “[ejxisting zoning of property.” (Emphasis supplied.) “Existing zoning of property” would include conditional zoning, which has been ruled valid in Georgia. See Warshaw v. City of Atlanta, 250 Ga. 535, 536 (299 SE2d 552) (1983); Cross v. Hall County, 238 Ga. 709, 712 (2) (235 SE2d 379) (1977).

.Without any doubt Brian Realty’s property was conditionally rezoned. The county board of commissioners listed the zoning as conditional zoning and “OI (conditional).” When property is conditionally rezoned, the conditions include “all of those stipulations made upon the rezoning hearing and entered in the official and public minutes of the board of commissioners.” Ervin Co. v. Brown, 228 Ga. 14, 15 (183 SE2d 743) (1971). The easement conditions were included in the attachment to the county board of commissioners’ official minutes approving the 1991 alteration of the property’s “OI (conditional)” zoning status. The easement conditions dramatically affected the amount of acreage available to Brian Realty for development, and were imposed to protect the neighbors and ameliorate the effect of the zoning change. See Warshaw, supra at 536. Brian Realty nor any subsequent purchaser could proceed with development of the property unless the zoning conditions were met or altered. The conditions were an integral part of the zoning and thus had to be considered pursuant to OCGA § 48-5-2 (3).

The county argues that it was not appropriate to consider the easement conditions until they were recorded with the superior court. The county is correct in pointing out that once conservation easements, as imposed here, are recorded, the property owner has a right to have his property reassessed pursuant to OCGA § 44-10-5 (currently OCGA § 44-10-8). However, that does not mean that prior to recordation of the conservation easements, the zoning conditions requiring the easements do not affect the fair market value of the property for ad valorem tax purposes.

We agree with the superior court that no action under OCGA § 48-5-380 would lie if the tax assessors considered the conditions in making the assessment, for how the conditions affect the property’s value is a matter of opinion, not an inaccurate matter of fact. See Gwinnett, supra. However, if the tax assessors totally failed to consider the existing conditional zoning in ascertaining value, as mandated by OCGA § 48-5-2, then “the assessment was reached by the use of illegal procedures . . . ,” for which a refund action would lie. Id. at 647. Brian Realty’s claim is not based on “mere dissatisfaction with an assessment . . . ,” but rather on an alleged error of law resulting in erroneous or illegal taxation. Id.

Accordingly, an issue of fact remains concerning whether the county’s tax assessor considered the existing zoning conditions in making the assessment, and as such, summary judgment to the county regarding Brian Realty’s claim under OCGA § 48-5-380 was not appropriate. Lau’s Corp., supra.

3. The superior court correctly granted summary judgment to the county on Brian Realty’s 42 USC § 1983 claim, as there was an adequate remedy under Georgia law. See Gwinnett County Bd. of Tax Assessors v. Network Publications, 208 Ga. App. 15, 17 (1) (429 SE2d 696) (1993). The procedures of either OCGA § 48-5-311 or § 48-5-380 provide Brian Realty with a full hearing and a judicial determination at which it could raise any and all constitutional objections to the tax. See id.

4. Furthermore, there was no illegal taking of the Lake Hearn property, as Brian Realty maintains. Brian Realty and its predecessors in interest were aware of and agreed to the zoning conditions. The county did not remove land from Brian Realty’s possession for public use. The only “taking” of which Brian Realty is complaining is its overpayment of taxes due to the county’s assessment. Just as we held in Parian Lodge v. DeKalb County, 225 Ga. App. 853, 855-856 (485 SE2d 545) (1997), no legal basis exists for a claim that payment of the ad valorem tax amounted to an unconstitutional taking of property.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Eldridge, J., concur.

Decided November 5, 1997

Knapp & Street, Halsey G. Knapp, Jr., for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, Boyce, Ekonomou & Atkinson, John E. Underwood, Jonathan A. Weintraub, Lee W. Fitzpatrick, for appellees.

       It is unclear from the record whether this ten-year conservation easement was imposed as a condition in 1986 or at some point between 1986 and 1991. However, it is clear that this zoning condition, as well as the zoning condition requiring the 23-acre perpetual easement, were in place for the 1992 tax year.


author: McMURRAY, Presiding Judge.

text:
    A97A1341.
    LOTHRIDGE v. MAMARI CORPORATION.
    (493 SE2d 581)
   McMURRAY, Presiding Judge.

In 1987, Jerry Lothridge executed a security deed encumbering his farm and a personal guaranty securing an acquisition and development loan from First National Bank of Gainesville (“the bank”) to Mountain Lakes Resort, Inc. (“Mountain Lakes”) — a corporation Lothridge and others formed to revitalize and market an unprofitable and debt-ridden resort development formerly known as Mountain Shadows. Mountain Lakes also acquired a line of credit from the bank by hypothecating purchase money notes and security deeds it acquired via resort property sales (“the dealer paper”). Mountain Lakes’ payment responsibilities under this line of credit were unlike the direct payment obligation under the corporation’s original acquisition and development loan. A purchaser of a time-share unit would make a down payment and sign a promissory note and security deed in favor of Mountain Lakes for the balance of the purchase price. Mountain Lakes would then assign the dealer paper to the bank and the bank would advance a certain percentage (50 percent to 90 percent) to Mountain Lakes with the remainder going into a reserve account. Although Mountain Lakes was ultimately responsible for the debt under the line of credit, the bank received payment directly from each dealer paper obligor. This reserve account was to be used to compensate for any non-performing dealer paper.

In 1988, after disputes arose between Lothridge and other Mountain Lakes’ owners, Lothridge filed a lawsuit. The parties settled this action on January 3, 1990, via a consent judgment which the bank approved. In 1991, another corporation purchased Mountain Lakes’ stock and transferred much of the dealer paper and the reserve accounts to the bank. Because Mountain Lakes failed to pay its acquisition loan, the bank filed suit against Lothridge in 1993 to recover under his guaranty. The trial court granted summary judgment to the bank as to Lothridge’s liability but found that the bank “did not present evidence to show the amount of the outstanding debt of Mountain Lakes.” Although this judgment was affirmed in part in Lothridge v. First Nat. Bank of Gainesville, 217 Ga. App. 711 (458 SE2d 887), this Court reversed in part and remanded that part of the trial court’s summary judgment order construing language in the 1990 consent judgment which consent judgment provided that “the conditioned indebtedness held by the [bank] on [Lothridge’s farm] shall be reduced by a deed to secure debt in the amount of Four Hundred Fifty Thousand ($450,000.00) Dollars in a similar position to that which is presently held by the [bank; that this] property shall not be used as collateral on any other debt which has been or may be incurred by Mountain Lakes or any other Defendant [and that all] future payments made to the [bank] on the indebtedness of Mountain Lakes shall be applied first toward the reduction of the balance of the aforementioned deed to secure debt. . . until such time as the Security Deed has been satisfied and released of record.” Id. at 713 (3), 714 (b), supra.

Upon remand to the trial court, Lothridge pressed a claim to cancel the security deed alleging the bank failed to honor its obligation under the 1990 consent judgment to first pay off the $450,000 debt encumbering his farm. The bank filed a second motion for summary judgment pointing to purportedly undisputed evidence regarding the amount of the debt which Lothridge guaranteed. The bank later assigned most of its Mountain Lakes’ investment, including Loth-ridge’s guaranty obligation, to Mamari Corporation (“Mamari”). Lothridge then filed a motion to compel depositions of employees of the bank and Mamari who are familiar with this transaction. This motion to compel was never heard. The trial court granted summary judgment to Mamari as to Lothridge’s claim to cancel the security deed and determined that Lothridge’s obligation under the guaranty to Mamari is $536,970.02, plus attorney fees. With regard to calculating these damages, the trial court’s order provides as follows: “In this Court’s original [Summary Judgment] Order, it ruled that the affidavit of Rhonda Sizemore did not present evidence to show the amount of the outstanding debt of Mountain Lakes. Plainly, the undersigned [trial court judge] was incorrect. The affidavit sets out the amount owing at the time of the filing of the lawsuit — the amount being $2,042,323.71. From that amount, payment of $30,200.00, which [Mamari] agrees was made, is to be deducted, leaving a balance of $2,011,123.70 for which [Mamari] seeks recovery of 26.7%, or $536,970.02, under [Lothridge’s] guaranty.” This appeal followed. Held-.

1. Lothridge’s assertions regarding the extent of his liability under the guaranty agreement and the bank’s “future payments” obligation under the 1990 consent judgment turn on a single issue, i.e., whether various revenues and benefits the bank derived from the dealer paper loan transactions constituted payments which should have gone to reducing the debt which Lothridge secured. We find that any benefits the bank gleaned from the dealer paper loan transactions do not constitute payments which the bank was required to apply toward reducing Lothridge’s guaranty and security deed obligation. The dealer paper transactions were neither part of the Mountain Lakes’ acquisition and development loan, nor contemplated in the 1990 consent judgment (or any other agreement between the parties) as conduits for reducing Lothridge’s guaranty and security deed obligation under the Mountain Lakes’ acquisition and development loan. Consequently, absent an enumeration of error challenging the manner in which the trial court calculated the single payment credited to the undisputed amount of Mountain Lakes’ acquisition and development debt (since entry of the 1990 consent judgment), we find no error in the trial court’s order granting summary judgment to Mamari.

Decided November 5, 1997.

Webb, Tanner & Powell, Anthony O. L. Powell, Ralph L. Taylor III, for appellant.

Stewart, Melvin & Frost, W. Woodrow Stewart, J. Douglas Stewart, for appellee.

2. Other issues raised by Lothridge in the case sub judice are either without merit or controlled by this Court’s decision in Lothridge v. First Nat. Bank of Gainesville, 217 Ga. App. 711, supra.

3. Since Lothridge did not press for a ruling on his motion to compel, he waived his right to complain. Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536).

Judgment affirmed.

Beasley and Eldridge, JJ, concur. Smith, J, disqualified.


author: McMurray, Presiding Judge.

text:
    A97A1904.
    WILCOX v. THE STATE.
    (493 SE2d 600)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of aggravated assault and possession of a firearm by a convicted felon. The State’s proof reveals that defendant shot the victim through the lip and nostril during a domestic squabble which broke out at the victim’s place of employment, a small eatery known as “Buster’s Cafe.” This appeal followed entry of defendant’s conviction and sentence. Held:

1. In two enumerations of error, defendant challenges the sufficiency of the evidence.

At trial, the victim summarized the incident which is the basis of the crimes charged during the following direct examination: “[THE STATE’S ATTORNEY:] Q. Did you see [defendant] at Buster’s Cafe? A. Yes. Q. What happened when he came there? A. We talked, he left, came back, we argued, we got into a little tussle, I threw some water on him twice. He left again and then came back, he left, he called, he came back, and we got into another argument. He waved the gun at us behind the counter. I was coming from behind the counter with a brick, I picked up a brick on my way from behind the counter to hit him and he grabbed me. On the way out the door we sort of fell on the door and then we sort of fell. The gunshot went off, I jumped up and I was shot and I went to the hospital.” Three eyewitnesses testified at trial and corroborated the victim’s testimony. This evidence, and proof that defendant was a convicted felon when he shot the victim, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends the trial court erred in denying his motion for mistrial, arguing that the victim impermissibly placed his character in issue at trial. Defense counsel asserted a motion for mistrial after the following testimony: “[THE STATE’S ATTORNEY:] Q. Tell the ladies and gentlemen of the jury about this episode where you say you told [Georgia Bureau of Investigation (“GBI”)] Agent Watson that [defendant] didn’t shoot you. [THE VICTIM:] A. I was in love and I didn’t want him to go back to prison.”

“ ‘The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to [a] fair trial. Gassaway v. State, 137 Ga. App. 653, 657 (224 SE2d 772); Jones v. State, 128 Ga. App. 885, 886 (198 SE2d 336). Where a motion for mistrial is made on the ground of inadmissible matters being placed before the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion, the refusal to grant a mistrial is not error.’ Bradham v. State, 148 Ga. App. 89, 94-95 (250 SE2d 801).” Grayson v. State, 159 Ga. App. 138, 139 (1) (282 SE2d 755).

In the case sub judice, the trial court gave the jury the following instructions in response to defendant’s motion for mistrial: “Ladies and gentlemen of the jury, . . . the last testimony given by the witness was something to the effect that she made a statement to the GBI agent because she loved the defendant and did not want to see him go back to prison. I charge you that you are to disregard that portion of the statement that said she did not want to see him go back to prison. Whether or not he ever has been in prison is totally irrelevant here and you will not let that affect your judgment on these cases in anyway whatsoever. Simply put that portion of her statement out of your minds completely.” In light of these curative instructions, and the overwhelming evidence of defendant’s guilt, we cannot say the victim’s statement about her not wanting defendant “to go back to prison” deprived defendant of a fair trial. The trial court did not abuse its discretion in denying defendant’s motion for mistrial. See Edwards v. State, 200 Ga. App. 580 (1) (408 SE2d 802).

Decided November 5, 1997.

Straughan & Straughan, William T. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, James E. Turk, Assistant District Attorneys, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.