author: Andrews, Presiding Judge.

text:
    A01A0953.
    SHORTNACY et al. v. NORTH ATLANTA INTERNAL MEDICINE, P.C. et al.
    (556 SE2d 209)
   Andrews, Presiding Judge.

The Shortnacy family and Kirk Zoeller, plaintiffs below, appeal from the trial court’s order finding a proper case and granting the motion of defendants North Atlanta Internal Medicine, P.C., Jamie Pappas, M.D., and Alice Doe to open default pursuant to OCGA § 9-11-55 (b) and the subsequent order granting defendants summary judgment on the claims of the Shortnacy family.

This suit stems from an automobile accident on December 18, 1992, in which plaintiff Zoeller, driving the wrong way on Georgia 400, collided head-on with the car carrying the Shortnacy family, causing injuries to all.

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

Clark v. Cauthen, 239 Ga. App. 226, 227 (1) (520 SE2d 477) (1999).

So viewing the evidence, it was that Zoeller had previously suffered an injury resulting in a herniated disk and lower back pain. He was referred to Dr. Pappas and first seen by him in the hospital on November 16, 1992. Zoeller was hospitalized for six days and received Demerol (pain medication), Phenergan (anti-nausea medication), muscle relaxers, and other medications while hospitalized. Thereafter, Zoeller was seen by Dr. Pappas at his office.

During his office treatments, Zoeller received physical therapy as well as the administration of medications, including Demerol and Phenergan. Prior to December 18, 1992, Zoeller had been treated at Dr. Pappas’ office approximately six times. During two of these visits, Zoeller was administered Demerol and Phenergan. On December 18, 1992, Zoeller was asked by the nurse, prior to receiving the Demerol and Phenergan, if he had had any problems driving himself home previously, and he said he had not. The injection record states that Zoeller was told that he should not drink alcohol, drive, or operate heavy or light machinery for 12 hours after the injections. The injections were given between 11:30 a.m. and noon. Zoeller left Dr. Pap-pas’ office between noon and 12:30 p.m. He drove onto Shallowford Road, proceeded on Interstate 285 to Georgia 400 and headed north. Zoeller recalls nothing else until his collision with the Shortnacy vehicle at 6:45 p.m., and his whereabouts and activities are otherwise unaccounted for. Zoeller’s blood and urine samples, taken after the accident, were positive for marijuana.

The complaint was filed on December 16, 1994, asserting a breach of “general common law tort duty of ordinary care,” as well as a count for alleged “medical and nursing negligence.” The returns of service indicate all defendants were served on December 19, 1994. Dr. Pappas called MAG Mutual, his insurer, reported the suit, and then forwarded the pleadings to MAG Mutual by United States Postal Service Express Mail. They were received on Friday, December 30, 1994. Because of the New Year holiday, MAG Mutual was staffed that day by a skeleton crew of four, including Ms. Nix. As was the company practice, incoming mail was picked up at the post office box and delivered to the office by Dependable Courier Service, where Nix sorted it and placed it in bins in the mailroom for distribution on January 3, 1995, when the office reopened. Nix also removed the Christmas tree decorations and placed them in storage bins which were also placed in the mailroom for storage. Somehow, the pleadings received from Dr. Pappas were inadvertently stored with the Christmas decorations and were not discovered until December 1, 1995, when the decorations were unpacked.

About two months after forwarding the documents to MAG Mutual in December 1994, Dr. Pappas called about another matter and inquired about the Zoeller case. He was told not to worry and that MAG Mutual was taking care of it. He also called in July 1995 and inquired about the case, but could not recall specifically what he was told.

In the interim, the affidavits of service were filed in the trial court on January 5,1995, and on November 16,1995, the Shortnacys and Zoeller filed their motion for default judgment on liability. The default judgment was entered by the court on November 17,1995. On December 11, 1995, after discovery of the pleadings by MAG Mutual on December 1, 1995, defendants’ motion to open default was filed.

1. The Shortnacys and Zoeller first enumerate as error the trial court’s opening of the default.

OCGA § 9-11-55 (b) allows the court to open a default before final judgment in certain circumstances.

“(A) default may be opened if the [defendants] satisfied the four conditions and one of the three grounds for opening a default. The four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed to trial, and (4) setting up a meritorious defense. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) a proper case. (Cit.) Whether to open the default on one of the three grounds rests within the discretion of the trial judge. (Cit.)” Bryant v. Haynie, 216 Ga. App. 430, 431 (1) (454 SE2d 533) (1995). If the four conditions are not met, the court cannot exercise its discretion to open the default. C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990).

Ford v. St. Francis Hosp., 227 Ga. App. 823, 824-825 (1) (490 SE2d 415) (1997).

Where, as here, the order opening default does not specify the ground upon which the motion was granted, we will presume that it was premised upon the “proper case” ground, which is the broadest of the three available grounds. Ford, supra at 826. Our sole function on review of the grant of a motion to open default is to determine, once the four conditions are met, whether the trial court abused its discretion based on the particular facts of the case before it. Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 224 (1) (438 SE2d 686) (1993).

Plaintiffs do not argue that defendants failed in meeting any of the requisite four conditions. They contend that the trial court abused its discretion in opening default because of defendants’ “direct neglect” in failing to follow up on the litigation and because of defendants’ “imputed neglect” based on the insurer’s misplacement of the documents.

The “direct neglect” argument is premised on the alleged sophistication of Dr. Pappas and his professional corporation based on their claimed familiarity with litigation of other matters over a period of years. Even assuming without deciding that such legal sophistication has been shown, no authority for the argument that this sophistication would impose a greater burden on such a party is presented, and the cases we have reviewed have provided none.

Rather, “ ‘[t]he rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law.’ (Citations and punctuation omitted.) [Miller v. Tranakos, 198 Ga. App. 668, 669 (1) (402 SE2d 772) (1991).]” Sagnibene v. Budget Rent-A-Car Systems, 209 Ga. App. 44, 46 (3) (432 SE2d 639) (1993).

Regarding the “indirect negligence,” Dr. Pappas forwarded the matter to his insurer and was depending on that insurer to provide a defense, to which he, his professional corporation, and his employee were entitled under the policy. Later, Dr. Pappas was assured, at least once, that the matter was being attended to. We find no abuse of discretion in the trial court’s opening the default because the defendants had reason to believe that the suit was being defended by their insurance company. See, e.g., Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 262 (2) (450 SE2d 307) (1994); Sagnibene, supra; Mars, Inc. v. Moore, 207 Ga. App. 912, 913 (429 SE2d 299) (1993); Powell v. Eskins, 193 Ga. App. 144 (387 SE2d 389) (1989); Sears, Roebuck & Co. v. Ramey, 170 Ga. App. 873 (318 SE2d 740) (1984); Cobb County Fair Assn. v. Boyle, 143 Ga. App. 754 (240 SE2d 136) (1977).

Further, plaintiffs have demonstrated no prejudice to their case by the opening of default, particularly since they waited 11 months after filing proof of service to move for entry of default judgment. Also, the potential for manifest injustice exists in this case if default judgment is entered against the defaulting defendants because they have pled what appears to be a meritorious defense, as discussed in Division 2. McCombs v. Synthes (U.S.A.), 250 Ga. App. 543, 547 (2) (553 SE2d 17) (2001).

2. The Shortnacy plaintiffs appeal from the trial court’s grant of summary judgment to defendants which held that defendants owed no duty of care to them as a matter of law.

It is undisputed that no member of the Shortnacy family had a doctor-patient relationship with Dr. Pappas or North Atlanta Internal Medicine and Dr. Pappas had no personal knowledge of them.

Because the Shortnacy plaintiffs urge this Court to find either that the “general common law tort duty of ordinary care” would extend to this situation, or to analogize the duty created by the Dram Shop Act to this situation, thereby creating a duty of the doctor to the general public, it is a matter of first impression in this State.

The trial court’s order thoroughly and correctly addresses these contentions, and we hereby adopt and set it out, in pertinent part and as supplemented, as our own.

To state a cause of action for negligence in Georgia, a plaintiff must show (1) a legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) loss or damage to plaintiffs’ legally protected interest resulting from the breach. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). The mere occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. Amos v. City of Butler, 242 Ga. App. 505, 506 (1) (529 SE2d 420) (2000); Walker v. MARTA, 226 Ga. App. 793, 798 (1) (487 SE2d 498) (1997). A plaintiff must come forward with specific facts establishing a breach of duty, as well as the other elements of negligence, and may not rest upon generalized allegations. Bradley Center, supra; Tuggle v. Helms, 231 Ga. App. 899, 902 (2) (499 SE2d 365) (1998).

Generally, there is no duty to control the conduct of third persons to prevent them from causing physical harm to others. Bradley Center, supra; Landis v. Rockdale County, 212 Ga. App. 700, 703 (445 SE2d 264) (1994) (both set out the general rule of Restatement (Second) of Torts, § 315). There are two exceptions to this general rule where: “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” (Punctuation omitted.) Id.

(a) Bradley Center, supra, is an example of a situation establishing the former exception in which a legal duty is found in that

“where the course of treatment of a mental patient involves an exercise of‘control’ over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.” [Cit.]

Id. at 201.

This emphasis on control over the patient as the touchstone for imposing this duty to third parties for the criminal acts of the patient has been repeatedly stated. Ward v. Emanuel County Bd. of Health, 218 Ga. App. 382, 383 (461 SE2d 559) (1995) (psychotic and schizophrenic outpatient not under control of physician when he killed his parents and brother); Keppler v. Brunson, 205 Ga. App. 32 (421 SE2d 306) (1992) (no duty on general practitioner and drug and alcohol treatment facility and its treating physician to third parties when voluntary patient killed his sister, her husband, and himself); Ermutlu v. McCorkle, 203 Ga. App. 335, 337 (1) (416 SE2d 792) (1992) (no duty to third parties on treating psychiatrist of manic depressive outpatient who did not qualify for involuntary commitment pursuant to OCGA § 37-3-163); Baldwin v. Hosp. Auth. of Fulton County, 191 Ga. App. 787, 789 (2) (383 SE2d 154) (1989) (no duty because no ability to control, i.e., no legal authority to confine or restrain patient against his will).

Therefore, the trial court correctly concluded that there was no duty to the Shortnacy family based on this exception to the general rule.

(b) The Shortnacy family also argues a duty under the second exception, a “special relation exists between the actor (Dr. Pappas) and the other which gives to the other a right to protection.”

To the extent this argument is premised upon the “special relationship” recognized in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), it is unavailing. In that case and its progeny, the “special relationship” applies only to liability of a governmental entity for the acts or omissions of the police or similar governmental public safety agency in its duties to the public. Huntington v. City of Atlanta, 241 Ga. App. 301 (527 SE2d 6) (1999); see Rowe v. Coffey, 270 Ga. 715, 716 (515 SE2d 375) (1999).

We decline, as did the trial court, to expand that duty to this situation. See Vance v. T. R. C., 229 Ga. App. 608, 610 (1) (a) (494 SE2d 714) (1997) (physician’s statutory duty to report child abuse to proper authorities does not create a civil cause of action and is not analogous to the public duty doctrine).

(c) We also decline to find that the duty of a health care provider to the public at large is similar to the duty imposed on providers of alcohol pursuant to OCGA §§ 51-1-40 and 3-3-22.

First, the duty encompassed by these two statutes on providers of alcohol was imposed by the legislature, and any expansion of this duty as urged by the Shortnacy family is also within the purview of the legislature and not the courts. Etkind v. Suarez, 271 Ga. 352 (1) (519 SE2d 210) (1999).

Second, it has recently been stated that while OCGA § 51-1-40 (b) “sets forth a basis for civil liability where an alcohol provider knowingly continues to serve alcohol to an intoxicated person!,] . . . nothing in that statute or any other provision of Georgia law mandates that a provider of alcoholic beverages must prevent an intoxicated person from driving(Emphasis supplied.) Armstrong v. State, 244 Ga. App. 871, 873 (2) (537 SE2d 147) (2000).

Third, to expand such a duty of health care providers to the public at large would be inconsistent with the physician-patient relationship and, therefore, contrary to public policy. Several other jurisdictions have considered this issue, and we find their rationales in finding such a duty contrary to public policy persuasive. As stated in Webb v. Jarvis, 575 NE2d 992, 997 (I) (C) (Ind. 1991):

A physician’s first loyalty must be to his patient. Imposing a duty on a physician to predict a patient’s behavioral reaction to medication and to identify possible plaintiffs would cause a divided loyalty. Were we to impose a duty on a physician to consider the risk of harm to third persons before prescribing medication to a patient, we would be forcing the physician to weigh the welfare of unknown persons against the welfare of his patient. Such an imposition is unacceptable. The physician has the duty to his patient to decide when and what medication to prescribe to the patient, and to inform the patient regarding the risks and benefits of a particular drug therapy. He should fulfill that duty without fear of being exposed to liability to unknown, unidentified third persons.

See also, e.g., Estate of Witthoeft v. Kiskaddon, 557 Pa. 340 (733 A2d 623) (1999); Praesel v. Johnson, 41 Tex. Sup. J. 630 (967 SW2d 391) (1998); Calwell v. Hassan, 260 Kan. 769 (925 P2d 422) (1996).

The foreign cases relied upon by appellants are inaccurately characterized. One has been expressly overruled, stating that “such a rule would subject physicians to liability claims from unknown third parties for the acts of patients over which physicians would have no control.” Calwell, supra at 787, overruling Calwell v. Hassan, 21 Kan. App.2d 729 (908 P2d 184) (1995). The other, Gooden v. Tips, 651 SW2d 364 (Tex. App. 1983), has been subsequently distinguished and limited to its facts. See, e.g., Bird v. W. C. W., 37 Tex. Sup. J. 329 (868 SW2d 767) (1994).

Decided November 6, 2001

Clinton W. Sitton, Robert H. Benfield, Jr., for appellants.

Love, Willingham, Peters, Gilleland & Monyak, Jonathan C. Peters, Vicki M. Miller, Michael T. Carithers, for appellees.

Therefore, defendants were correctly granted summary judgment.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       Husband and wife David and Valerie and their two minor sons, Austin and Thomas.

       Later identified as Alice Williams, an office clerk doing billing and insurance claims for North Atlanta.

       This evidence is disputed, with the medical chart indicating the shots were given between 9:30 a.m. and 9:50 a.m. For purposes of the motion for summary judgment, however, the evidence is viewed in plaintiffs’ favor.

       There could be no duty, therefore, premised upon the relationship of doctor and patient as far as the Shortnacy family is concerned. See Purcell v. Breese, 250 Ga. App. 472, 475-476 (2), (3) (552 SE2d 865) (2001).


source: Caselaw Access Project

author: Smith, Presiding Judge.

license: Public Domain

text:
    A01A1281.
    PEACHTREE CASUALTY INSURANCE COMPANY v. BHALOCK et al.
    (556 SE2d 218)
   Smith, Presiding Judge.

This is a declaratory judgment action brought by Peachtree Casualty Insurance Company, seeking a ruling on its duty to defend and pay a default judgment under a policy issued to defendant-appellee Patricia Merritt. The sole issue is the interpretation of OCGA § 33-7-15, requiring the cooperation of the insured in the defense of a separate action under a motor vehicle liability insurance policy. The trial court found under OCGA § 33-7-15 (c) that Peachtree Casualty was adequately notified of the separate action by a third party, the claimants’ attorney. Peachtree Casualty appealed the trial court’s order. Because the correspondence between the third-party attorney and Peachtree did not meet the requirements of the exception created by OCGA § 33-7-15 (c), we reverse.

The facts of the underlying claim are not disputed. Peachtree issued a policy of automobile insurance, including liability coverage, to Patricia Merritt. On March 14, 1997, Cedrick Merritt was driving Patricia Merritt’s car and was involved in an automobile collision with Derrick Bhalock and Jawara Cross. On August 14, 1997, counsel for Bhalock and Cross sent a demand letter to Peachtree’s adjuster. While the letter referred to “a copy of the complaint that we have filed against your insured,” it enclosed only an unfiled, unstamped copy of an unverified complaint naming Cedrick Merritt as the sole defendant; the complaint was not filed until several days later. The paralegal who sent the letter testified in her deposition that she did not send any other documents with the copy of the complaint and that she did not send a copy of the summons to Peachtree once she received it from the court.

When Peachtree’s adjuster received the letter from counsel for Bhalock and Cross, she began her investigation by making inquiries of the trial court clerk. She was told that suit had been filed on August 19,1997, but had not been returned as served. She called the clerk on approximately a monthly basis beginning in August 1997 and was repeatedly told that no service had been made on Cedrick Merritt and that he no longer lived at the address alleged in the complaint. She made attempts to locate Cedrick Merritt, including repeated calls to Patricia Merritt, who was unable to provide any information regarding the whereabouts of Cedrick Merritt. The adjuster also called counsel for Bhalock and Cross on at least four occasions before and including April 5, 1999, speaking with a paralegal or counsel's secretary. On each occasion, she was told that they had not yet served Cedrick Merritt. The paralegal for Bhalock and Cross’s counsel also acknowledged that she did not inform Peach-tree’s adjuster that Cedrick Merritt had been located in Miami or that he had been served on April 23, 1999. Peachtree’s adjuster was informed by the court clerk on October 18, 1999, that the court still had no record of successful service on Cedrick Merritt. On November 16, 1999, Peachtree received a letter from counsel for Bhalock and Cross informing it that a default judgment had been obtained against Cedrick Merritt. Only after that letter did Peachtree’s adjuster learn that Merritt had been served; she had never received a summons or other process from counsel. Peachtree then brought this declaratory action against Patricia Merritt, Cedrick Merritt, Bhalock, and Cross.

OCGA § 33-7-15 (a) requires the insured under a motor vehicle liability insurance policy to forward to his insurer “a copy of every summons or other process relating to the coverage under the policy and to cooperate otherwise with the insurer in connection with the defense of any action or threatened action covered under the policy.” Subsection (b) provides that failure to comply with this requirement shall constitute a breach of the policy “which, if prejudicial to the insurer, shall relieve the insurer of its obligation to defend its insureds under the policy and of any liability to pay any judgment or other sum on behalf of its insureds.” Finally, subsection (c) provides:

Subsections (a) and (b) of this Code section shall not operate to deny coverage for failure to send a copy of a summons or other process relating to policy coverage if such documents are sent by a third party to the insurer or to the insurer’s agent by certified mail or statutory overnight delivery within ten days of the filing of such documents with the clerk of the court. If the name of the insurer or the insurer’s agent is unknown, the third party shall have a period of 30 days from the date the insurer or agent becomes known in which to send these required documents. Such documents must be sent to the insurer or agent at least 30 days prior to the entry of any judgment against the insured.

As it is undisputed that neither Patricia Merritt nor Cedrick Merritt ever forwarded the summons and complaint to Peachtree and never contacted the insurer in any way, the dispositive issue is whether the courtesy copy of an unfiled complaint forwarded to Peachtree by counsel for Bhalock and Cross satisfies the requirement of subsection (c) that a third party forward “a copy of a summons or other process” to the insurer. We find that, standing alone as it does in this case, it does not.

It is undisputed that no summons was forwarded with the copy of the complaint; we therefore must consider what is meant by the words “or other process.” Process in a civil action is extensively described in OCGA § 9-11-4. It consists of the summons and related documents issued by the trial court to give notice to a defendant of the pendency of the action, whether by personal service, publication, or alternative methods as provided in that Code section. “Process is the means whereby a court compels the appearance of a defendant before it or a compliance with its demand. [Cits.]” Dansby v. Dansby, 222 Ga. 118, 121 (1) (149 SE2d 252) (1966). An unfiled courtesy copy of a complaint does not constitute “summons or other process” within the meaning of OCGA § 33-7-15. In Chadbrooke Ins. Co. v. Fowler, 206 Ga. App. 778, 780 (426 SE2d 578) (1992), this court reversed a trial court’s denial of summary judgment for the insurer, because “the plaintiffs did not send a copy of the ‘summons or other process’ within ten days of the filing of the lawsuit in this case.” Id.

Because none of the defendants below has seen fit to file a brief on appeal, we do not have the benefit of their argument or analysis of the relevant law. But those cases in which this court declined to apply the provisions of OCGA § 33-7-15 (c) to find a lack of notice are distinguished from the facts of the case before us. In Weekes v. Nationwide Gen. Ins. Co., 232 Ga. App. 144 (500 SE2d 620) (1998), the insurer received not only a copy of the already-filed complaint, but a copy of the sheriff’s successful entry of service upon its insured. The issue presented was whether the failure to send the material by certified mail rendered the notice insufficient under OCGA § 33-7-15. Id. at 147-148 (3) (a). We held that it did not and that a jury question was presented, particularly since the insurer admitted in judicio that it had received the letter. Id. at 149. In Ga. Farm &c. Ins. Co. v. Martin, 209 Ga. App. 237 (433 SE2d 315) (1993), rev’d on other grounds, 264 Ga. 347 (444 SE2d 739) (1994), “notice of the suit was provided by the insured, arguably twice.” 209 Ga. App. at 238 (1). In Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320, 322 (1) (390 SE2d 419), aff’d, Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235 (392 SE2d 3) (1990), the insureds personally provided “prompt and adequate” notice of the litigation to their insurer’s office as soon as they were served. These insurers therefore received notice under the provisions of OCGA § 33-7-15 (a) and (b), and subsection (c) by its terms does not apply unless the insured has failed to comply with subsections (a) and (b).

A recurring theme of these cases is that “[t]he primary purpose of the notice requirement contained in OCGA § 33-7-15 is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances. [Cit.]” Chadbrooke Ins. Co., supra at 780; see also Weekes, supra at 148 (3) (a). Here, as in Chadbrooke Ins. Co., the information regarding the circumstances was limited to an unfiled pleading, which in this case alleged an incorrect residence for the defendant. The suit did not name the insured, Patricia Merritt, as a defendant, and she was unable to provide any information regarding the whereabouts of Cedrick Merritt. Counsel for Bhalock and Cross were repeatedly contacted by Peachtree regarding the residence of Cedrick Merritt, but counsel did not provide that information to Peachtree until after default judgment was taken in favor of their clients. Under these unusual circumstances, Peachtree did not have an opportunity to make a timely and adequate investigation of all the circumstances surrounding the underlying collision.

The trial court in its decision relies upon an alleged lack of prejudice to the insurer. But OCGA § 33-7-15 explicitly requires a showing of prejudice only with respect to the insured’s failure to notify the insurer under subsection (b), not the inadequacy of notice from a third party under the exception created by subsection (c). It does not appear from the record before us that any party disputes that Peach-tree was prejudiced by Merritt’s failure to notify it of the accident and service of the lawsuit against him. Moreover, Peachtree obviously was prejudiced by its inability to discover that Cedrick Merritt had been served, thus triggering its obligation to defend the underlying action. The trial court erred in concluding that the requirements of OCGA § 33-7-15 (c) were met in this case.

Judgment reversed.

Barnes and Phipps, JJ., concur.

Decided November 6, 2001.

Gray, Rust, St. Amand, Moffett & Brieske, James T. Brieske, for appellant.

Paul D. Berke, for appellees.

       None of the four defendants has responded or filed a brief with this court.


author: Phipps, Judge.

text:
    A01A1036.
    JONES v. THE STATE.
    (556 SE2d 238)
   Phipps, Judge.

A grand jury indicted Kenneth Wayne Jones for entering Natalie Smallwood’s vehicle, entering Ronald Drawdy’s vehicle, entering Cynthia Wilson’s vehicle, financial transaction card theft, two counts of financial transaction card fraud (at AutoZone and Western Auto), and two counts of misdemeanor theft by receiving (tennis shoes and videotapes). He also was indicted for violating the Georgia Racketeer Influenced & Corrupt Organizations (RICO) Act, “by engaging] in a pattern of racketeering activity by committing at least two of the [eight other charged crimes].” The trial jury found Jones not guilty of two counts of entering a motor vehicle (Smallwood’s and Drawdy’s) and guilty of all other charges. He appeals, contending that the evidence was insufficient to support the RICO conviction and that the trial court’s charge on reasonable doubt was erroneous. We find that the evidence was sufficient to support the RICO conviction, but the trial court’s explanation of its charge on reasonable doubt improperly lowered the State’s burden of proof. Accordingly, we reverse.

On appeal, a defendant no longer enjoys a presumption of innocence. We review the evidence in the light most favorable to the verdict, without weighing it or assessing the credibility of witnesses, to determine whether the evidence was legally sufficient under the standard of Jackson v. Virginia.

Viewed in this light, the evidence shows that on May 10, 1996, Smallwood’s truck was forcibly entered while parked at a restaurant. Several items, including videotapes, were stolen. On July 6, 1996, Drawdy’s truck, while parked at the same restaurant, was forcibly entered. Among the items stolen were his two cameras. On July 7, 1996, Wilson’s car, while parked at the same restaurant, was forcibly entered. Wilson’s purse containing her Discover credit card was stolen. Later that day, Wilson’s credit card was used at several stores, including AutoZone, Western Auto, and Shoe Carnival.

At trial, Jones’s wife, against whom related theft charges were pending, testified as a cooperating witness that during that spring and summer, she and Jones had broken into a number of vehicles, including those of Smallwood, Drawdy, and Wilson. Jones broke into the vehicles, while she served as lookout. She stated that they used, sold, or pawned the items stolen and shopped with the checks and credit cards stolen. She testified that they had taken videotapes from Smallwood’s vehicle and had used Wilson’s credit card to purchase tennis shoes from Shoe Carnival and other items from AutoZone and Western Auto. She stated that Jones had decided which items to purchase and, at Jones’s direction and coercion, she had presented the credit card and signed the credit card slips. Smallwood’s videotapes were retrieved during a search of the Joneses’ residence. Drawdy’s cameras were retrieved from a pawnshop, and corresponding pawn tickets were found during a search of Jones and his wife. Jones testified and denied involvement in the criminal acts.

1. Jones contends the evidence was insufficient to support the RICO conviction, arguing that the not guilty verdicts on two counts of entering a motor vehicle deprived the State of evidence needed to prove that he engaged in at least two predicate acts. A predicate act may be any racketeering activity as defined in OCGA § 16-14-3 (9). To prove a RICO violation, the State must show that the defendant committed two or more predicate criminal acts indictable under the RICO Act as part of an enterprise engaging in a pattern of racketeering activity.

Jones argues that the events of July 7,1996 — entering Wilson’s car, financial transaction card theft, and two incidents of financial transaction card fraud — were “extended aspects” of the same transaction and do . not constitute multiple predicate acts. We need not address each of the alleged predicate acts. Evidence of two predicate acts will sustain the RICO conviction. Considering first the counts of financial transaction card fraud, we find that the AutoZone transaction was separate from the Western Auto transaction. The fact that a single credit card was used twice soon after it was stolen does not unite the two crimes into a single transaction, but rather only serves as the link required for them to be considered a pattern of racketeering activity. The crimes were indictable under the Georgia RICO Act, involved the same accomplices, and had the similar intent of depriving others of their property. Accordingly, the evidence authorized the jury to find that Jones committed at least two predicate acts, thereby establishing his RICO violation. We need not consider the remaining predicate acts charged.

2. Jones contends that the trial court gave an erroneous instruction on reasonable doubt, effectively lowering the State’s burden of proving his guilt beyond a reasonable doubt. The record shows that after the court instructed the jury on reasonable doubt consistent with the suggested pattern instructions, the court summarized, “In other words, if you honestly believe he’s guilty, convict him. If you honestly believe he is not guilty, find him not guilty.”

(a) When the trial court inquired whether there were any objections to its charge, Jones’s counsel replied that he had none and did not reserve the right to object later. Generally, failure to object to a jury charge in a criminal case constitutes a waiver except, under OCGA § 5-5-24 (c), where there has been a substantial error in the charge which was harmful as a matter of law. Nothing is more fundamental to the jury’s consideration of a criminal case than its understanding and application of the State’s burden of proof beyond a reasonable doubt. Anything that might suggest the application of a lesser standard of proof raises a question whether a fair trial has been provided. Here, while the trial court initially gave the standard charge on reasonable doubt, immediately thereafter, it neutralized that charge with an erroneous “honest belief” instruction. And although the court followed that instruction with, “If the [S]tate fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant,” the court already had improperly instructed the jury that reasonable doubt, “in other words,” means honest belief. We find that Jones has satisfied the requirement of showing substantial error because “ The allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial.’ ”

(b) In Ward v. State the Supreme Court found reversible error where the trial court, after giving a charge consistent with the suggested pattern instructions on reasonable doubt, concluded with, “a better way to express that is simply if you honestly believe that the defendants are guilty then find them guilty. . . .” By suggesting that the jury was authorized to convict based upon an “honest belief” of guilt, the trial court effectively and improperly authorized the jurors to convict upon the preponderance standard used in civil trials rather than the reasonable doubt standard required in criminal prosecutions. All charging errors are presumed to be prejudicial unless the record shows them to be harmless. The erroneous instruction here purported to summarize the entire charge on reasonable doubt. There is more than a fair risk that the error misled or confused the jury with regard to the State’s burden of proving guilt beyond a reasonable doubt. Therefore, we cannot say that the charge, taken as a whole, properly charged on the State’s burden of proof.

Decided November 7, 2001.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

        Brannon v. State, 243 Ga. App. 28 (I) (530 SE2d 761) (2000).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brannon, supra.

        Brannon, supra at 30 (1); see OCGA § 16-14-3 (8).

       See Brown v. Freedman, 222 Ga. App. 213, 217-218 (3) (474 SE2d 73) (1996); OCGA § 16-14-3 (8). Compare Raines v. State, 219 Ga. App. 893, 894 (1) (467 SE2d 217) (1996) (the sale of timber by a single deed in one isolated transaction cannot be separated into two predicate acts by separately charging the sale and the filing of the deed).

       See OCGA § 16-14-3 (9) (A) (xxiii).

       Id. at 64.

       Id.

       See id.

       See Brown, supra.

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), pp. 7-8.

        Medina v. State, 234 Ga. App. 13, 15 (2) (505 SE2d 558) (1998).

       (Citations omitted.) Id.; see, e.g., Jackson v. State, 237 Ga. App. 746, 747 (516 SE2d 792) (1999) (recognizing that where am omission is clearly harmful as a matter of law in that the charge fails to provide the jury with the proper guidelines for determining guilt or innocence, this court will consider and review the charge even though there was no timely objection in the trial court).

       2.71 Ga. 62, 63-64 (2) (515 SE2d 392) (1999).


author: Mikell, Judge.

text:
    A01A1213.
    In the Interest of Z. B., a child.
    (556 SE2d 234)
   Mikell, Judge.

The mother of Z. B. appeals from a juvenile court order terminating her parental rights. While we affirm the termination, we vacate the order to the extent that it places permanent custody of the child with the Georgia Department of Human Resources and remand the case with direction that the juvenile court evaluate the possibility of placing the child with a suitable relative.

On appeal from the grant of a termination petition, this Court must determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. In the Interest of J. R., 202 Ga. App. 418 (414 SE2d 540) (1992). We construe the evidence most strongly to support the juvenile court’s judgment, “and every presumption and inference must be in favor thereof. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Citations and punctuation omitted.) Id.

Termination of parental rights requires a clear and convincing showing that the child is deprived due to parental misconduct or inability which is likely to continue or is not likely to be remedied, thereby causing serious physical, mental, emotional, or moral harm to the child. Lack of proper parental control may be shown by evidence of the parent’s past physical, mental, or emotional neglect of the child or of another child.

(Citation and punctuation omitted; emphasis supplied.) In the Interest of A. D., 243 Ga. App. 727, 729 (534 SE2d 457) (2000); OCGA § 15-11-94 (b) (4) (B) (v).

1. As a deprived child is defined as one who lacks proper parental care or control, OCGA § 15-11-2 (8) (A), the juvenile court properly focused on evidence of appellant’s “past physical, mental, or emotional neglect” of her other children in terminating her parental rights. OCGA § 15-11-94 (b) (4) (B) (v); see also In the Interest of M.L.P., 236 Ga. App. 504, 506 (512 SE2d 652) (1999).

Z. B., who was born on September 23, 1999, is appellant’s eighth child. Appellant’s other children were born in 1984,1989,1990,1992, 1994,1995, and 1997, and none of the children remain in her custody. Appellant gave up her first child for adoption, and her parental rights to her remaining six children were terminated in North Carolina three months before Z. B. was bom. Appellant had moved from Georgia to North Carolina with the children in May 1997, despite years of ongoing assistance provided by the Fulton County Department of Family & Children Services (the “Department”).

Although the Davidson County, North Carolina Department of Social Services (“DSS”) provided intensive in-home services to appellant and the children, appellant was unable to cope. DSS removed the children from appellant’s custody on July 17,1997. A North Carolina court entered an order on October 13, 1997, adjudicating the children abused and neglected. The order recounted the following: expert testimony that two of the children had anal injuries consistent with trauma; evidence that the children acted out sexually; statements of witnesses, including relatives and domestic violence personnel, who observed appellant hit the children in the head and threaten to kill them; and statements of caseworkers who observed appellant feeding the children by placing cold macaroni on the table and permitting them to fight over the food and by giving them unopened cans of Vienna sausages, which even the 19-month-old child had to open by himself. Moreover, the five-month-old was left alone in the home, and the other children were permitted to roam the neighborhood. In addition, the order cited evidence of extremely unsanitary conditions in the home. The three-year-old was permitted to urinate on the floor; diapers filled with feces were found on the floor; and the children were observed walking through the filth.

Twanna Robinson, a DSS caseworker, testified during the instant termination hearing that appellant began supervised visitation with the children in September 1997; that the children behaved so aggressively during these visits that two or three social workers were required to manage them, while appellant sat idly by; that the children remained aggressive for a week after each visit; and that appellant brought various male friends with her, even once asking the children to sit on a man’s lap. Appellant denied that DSS provided her with any assistance and denied bringing strange men to the supervised visits. In addition, appellant admitted that from 1993 through 1997, she lied about the identity of the children’s father.

Robinson testified that visitation ceased in January 1998, when appellant left North Carolina. She returned for a review hearing in July 1998, and the judge informed her that she would not be allowed to see the children unless she started complying with her case plan. Appellant, however, returned to Atlanta. After a hearing, which appellant did not attend, the North Carolina court terminated appellant’s parental rights to the six children.

The North Carolina orders, coupled with Robinson’s testimony, provide evidence of appellant’s past physical, mental, and emotional neglect of her six other children. OCGA § 15-11-94 (b) (4) (B) (v). Clear and convincing evidence supports the juvenile court’s determination that Z. B. is deprived due to lack of proper parental care or control.

Appellant contends that the Department failed to show by clear and convincing evidence that appellant is presently unfit to parent a single child. She further argues that the juvenile court improperly shifted the burden of proof to her on this issue. Appellant points to testimony from caseworkers showing that her current home, in the absence of children, is adequate, that she attends all scheduled visits with Z. B., that she participates in parenting classes, and that she has substantially met each goal in her case plan with the exception of providing financial support for Z. B. Appellant correctly asserts that “[e]vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.” (Citations and punctuation omitted.) In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997). However, in determining present unfitness, the juvenile court was permitted to consider whether appellant had successfully demonstrated her ability to care for her other children. In the Interest of S. L. B., 214 Ga. App. 802, 804 (449 SE2d 334) (1994). “While the mother’s efforts to improve herself are good, the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.” (Citation and punctuation omitted.) In the Interest of M. L. R, supra at 509 (1) (c). The juvenile court was not required to unite Z. B. with appellant in order to obtain current evidence of deprivation or neglect. In the Interest of E. C., 225 Ga. App. 12, 16 (482 SE2d 522) (1997).

Moreover, other evidence supported the juvenile court’s finding that appellant lacks the parenting skills necessary to raise Z. B. A caseworker testified that appellant was “very slow” mentally and could not manage children on her own. Appellant was the beneficiary of constant, intensive family support services from 1993 to 1997. Caseworkers testified appellant required continual assistance with bathing, feeding, and obtaining medical care for the children and that the Department could not provide those services indefinitely. Z. B.’s father, with whom appellant currently resides, threatened to kill a social worker while the family previously resided in Georgia. The juvenile court terminated the parental rights of Z. B.’s father, but he has not appealed. In addition, appellant is unemployed and has no significant work history.

Appellant contends that the testimony of Gary Santavicca, a psychologist who evaluated appellant prior to the hearing, fails to support the trial court’s finding of present parental unfitness by clear and convincing evidence. Santavicca testified that appellant was suffering from clinical depression and had borderline, or very low level, intellectual functioning. Without reviewing the North Carolina adjudication order, he found no evidence to suggest that appellant would be unable to maintain an appropriate relationship with Z. B. However, after being advised of the order, Santavicca recommended that the child not be returned to appellant’s custody, at least pending further assessment and psychological counseling.

We do not agree with appellant’s contention that Santavicca’s testimony requires reversal of the termination order. As stated earlier, the juvenile court was entitled to consider appellant’s past physical, mental, and emotional neglect of her six other children in determining her present ability to parent Z. B. In addition, “conflicts in the evidence ... do not necessarily preclude satisfaction of the appellate standard of review.” In the Interest of S. L. B., supra at 804. “[A]n appellate court’s role is to determine if there is sufficient evidence to authorize the trial court’s judgment; it is not to give a de novo opinion as to the weight of the evidence.” In the Interest of J.E.E., 228 Ga. App. 831, 835 (2) (493 SE2d 34) (1997).

In summary, we find that clear and convincing evidence supports the juvenile court’s finding that Z. B. is deprived, as that term is defined in OCGA § 15-11-2 (8); that lack of proper parental care or control is causing the deprivation; that the cause of deprivation is likely to continue; and that the deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). Moreover, the court properly considered evidence of appellant’s abuse and neglect of her other children in determining parental misconduct or inability. OCGA § 15-11-94 (b) (4) (B) (v).

Decided November 7, 2001.

Kenneth R. Ellis, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Dennis R. Dunn, Deputy Attorneys General, William C. Joy, Senior Assistant

2. Further, we hold that the court properly concluded that termination of appellant’s parental rights was in Z. B.’s best interest, considering the child’s physical, mental, emotional, and moral condition and needs, including her need for a secure and stable home. In the Interest of J. S., 232 Ga. App. 876 (1) (502 SE2d 788) (1998). “The primary consideration in a proceeding to terminate parental rights is the welfare of the child. In determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse.” (Punctuation omitted.) In the Interest of R. A., supra. There was no abuse of discretion. Clear and convincing evidence supports the court’s findings.

3. Finally, the Department concedes that the juvenile court erred when it did not require a search for a suitable relative with whom to place the child, as mandated by OCGA § 15-11-103 (a) (1). “[According to the clear dictates of the statute, it is incumbent upon the court and the department to conduct a thorough search for a suitable family member. The record does not show that such a search was ever conducted.” In the Interest of J. J. W., 247 Ga. App. 804, 807-808 (2) (545 SE2d 21) (2001). Accordingly, that portion of the order which places Z. B. permanently with the Department of Human Resources is vacated, and the case is remanded to the juvenile court with instructions that the court, in conjunction with the Department of Human Resources, evaluate the possibility of placing the child with a suitable family member or relative. Id.

Judgment affirmed in part and vacated in part and case remanded with direction.

Blackburn, C. J., and Pope, P. J., concur.

Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, P. Brian Campbell, for appellee.


text:
    A01A1279.
    MARINE PORT TERMINALS, INC. et al. v. DIXON.
    (556 SE2d 246)
   Andrews, Presiding Judge.

William J. Dixon was awarded workers’ compensation benefits after suffering an accidental injury while working for Marine Port Terminals, Inc. in Brunswick. The Terminals and its workers’ compensation insurer, Crum & Forster (the employer/insurer), appeal from the award claiming that compensation was barred because: (1) Dixon unjustifiably refused to submit to a urine test requested pursuant to OCGA § 34-9-17 (b) to determine the presence of alcohol or drugs, and (2) this refusal gave rise to an unrebutted presumption under that Code section that the accident and injury were caused by the consumption of alcohol or drugs.

OCGA § 34-9-17 provides in relevant part that:

(b) No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription: ... (3) If the employee unjustifiably refuses to submit to a reliable, scientific test to be performed in the manner set forth in Code Section 34-9-415 to determine the presence of alcohol, marijuana, or a controlled substance in an employee’s blood, urine, breath, or other bodily substance, then there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.

Evidence was presented before the administrative law judge (ALJ) that, while Dixon was receiving medical care after his injury, the employer requested that he submit to a urine test pursuant to OCGA § 34-9-17 (b) (3). It is undisputed that Dixon did not submit to the test. According to Dixon, his failure to submit was not an unjustified refusal but was caused by a panic attack he suffered at the time which prevented him from being able to urinate to provide a sample for the test. The employer/insurer claimed that Dixon unjustifiably refused to submit to the test and that a rebuttable presumption arose (which Dixon failed to rebut) that the accident and injury were caused by Dixon’s consumption of alcohol or drugs.

In awarding compensation to Dixon, the ALJ did not rule on whether Dixon unjustifiably refused to submit to the test, but held there was no defense to compensation under OCGA § 34-9-17 (b) because the employer/insurer failed to prove “that the test that the employee refused would have been conducted in the manner required by OCGA § 34-9-415.” The ALJ ruled in effect that, regardless of whether an employee’s refusal to submit to a test was unjustified, no rebuttable presumption will arise under OCGA § 34-9-17 (b) (3) unless the employer/insurer also produces evidence that the refused test would have been performed in the manner set forth in OCGA § 34-9-415. The appellate division of the State Board of Workers’ Compensation adopted the ALJ’s award, and on appeal the Glynn County Superior Court affirmed the ALJ’s award and reasoning.

In support of this holding, the ALJ cited Ga. Self-Insurers Guaranty Trust Fund v. Thomas, 269 Ga. 560 (501 SE2d 818) (1998), in which the Supreme Court considered whether the applicability of the rebuttable presumption of OCGA § 34-9-17 (b) (3) was dependent on the employee’s prior receipt of notice that his refusal to submit to the test may bar compensation. The Court held that neither the statute nor the constitution made such notice necessary for the rebuttable presumption to arise. Id. at 561. In contrast, the Court noted that OCGA § 34-9-17 (b) (3) does expressly refer to the test as one “to be performed in the manner set forth in Code Section 34-9-415,” and thereby incorporates the applicable drug testing procedures of OCGA § 34-9-415. Id. The Court stated that the “[applicability of the rebut-table presumption is, therefore, dependent entirely upon compliance with the procedural requirements for testing established by OCGA § 34-9-415 . . . [and] if the drug test fails to comply with procedures of OCGA § 34-9-415, the employer will not be entitled to rely upon the rebuttable presumption authorized by OCGA § 34-9-17 (b) (3).” Id. The Court further noted that there was no contention in the case that the employer failed to comply with OCGA § 34-9-415. Id.

The Supreme Court’s opinion in Thomas, supra, does not require that an employer produce evidence that it complied with all the testing procedures of OCGA § 34-9-415 where no testing was done. Subsection (d) of § 34-9-415 sets forth various procedures for specimen collection and testing, and subsections (e), (f), and (g) set forth requirements and procedures for laboratories that analyze specimens. The requirements and procedures of OCGA § 34-9-415 which regulate testing to insure reliable, scientific tests must be complied with where an employee submits to the requested test and testing is done. If the test is positive for alcohol or drugs, Thomas makes clear that the rebuttable presumption of OCGA § 34-9-17 (b) (3) will arise if the testing was done in compliance with the procedural requirements for testing in OCGA § 34-9-415. If no testing was done because the employee refused to submit to the test, the requirements and procedures of OCGA § 34-9-415 become relevant only to the extent that the employee contends noncompliance with a requirement or procedure justified the refusal to submit to testing. For example, an employee may justifiably refuse to submit to testing if the employer attempts to collect a specimen from the employee without due regard to the employee’s privacy (OCGA § 34-9-415 (d) (1)), or if the employer improperly insists that the employee pay the cost of the test (OCGA § 34-9-415 (d) (10)). Of course, the burden of proof as to whether the refusal was unjustified remains on the employer who denies compensation on the basis that the injury was due to alcohol intoxication or the influence of drugs. OCGA § 34-9-17 (b), (c).

Decided November 7, 2001.

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, for appellants.

Lane & Crowe, Robert L. Crowe, for appellee.

The ALJ erred by ruling that the rebuttable presumption in OCGA § 34-9-17 (b) (3) could not arise because the employer/insurer failed to produce evidence that the refused test would have been performed in the manner set forth in OCGA § 34-9-415. Because of this error, the ALJ further erred by failing to rule on the issues of whether the rebuttable presumption arose because Dixon’s refusal to submit to the test was unjustified and, if so, whether Dixon rebutted the presumption. Accordingly, we remand this case to the superior court with directions that the case be remanded to the appellate division and then to the ALJ for further findings of fact and conclusions of law in accordance with this opinion. Medders v. Smith, 245 Ga. App. 323, 327 (537 SE2d 153) (2000).

Judgment reversed and case remanded with directions.

Eldridge and Miller, JJ., concur.

       The remaining enumerations of error related to the amount of benefits awarded to Dixon may be reasserted, if necessary, in a subsequent appeal if Dixon is awarded benefits despite his refusal to submit to testing.


author: Ruffin, Judge.

text:
    A01A1411.
    LONG LEAF INDUSTRIES, INC. v. MITCHELL et al.
    (556 SE2d 242)
   Ruffin, Judge.

William Mitchell and his wife sued Long Leaf Industries, Inc. (“Long Leaf”), alleging that Mitchell was injured while working on Long Leaf’s premises. In their complaint, the Mitchells asserted that William’s injuries were caused by Long Leaf’s negligence, that his wife suffered a loss of consortium, and that Long Leaf’s conduct entitled them to punitive damages. A jury found in the Mitchells’ favor and awarded them compensatory damages, but rejected their claim for punitive damages. Long Leaf appeals, asserting that the court erred in denying its motion for directed verdict, recharging the jury, admitting certain evidence, and awarding the Mitchells prejudgment interest. For reasons that follow, we reverse and remand for a new trial.

1. A trial court can direct a verdict only when “the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” On appeal from a trial court’s denial of a motion for directed verdict, we view the evidence in the light most favorable to the jury’s verdict and determine whether there is any evidence to support that verdict.

Viewed in this manner, the evidence shows that, in October 1996, William Mitchell was employed as a welder by Tony Lyle, who had a contract to install pipe at Long Leaf’s plant. Mitchell worked on the Long Leaf project modifying pipes located inside a large tank, which was coated on the inside by a rubber substance. Because the task required the use a high voltage cutting tool called a plazmark, before Mitchell started working, he and his assistant asked Long Leaf employees, including plant manager Bob Strelau, whether the rubber coating would burn. Although Strelau and the other Long Leaf employees knew the rubber was flammable, they repeatedly told Mitchell and his helper that it was not.

As Mitchell started cutting the pipes with his plazmark, oil inside the pipes began to smoke and burn. Mitchell testified that “it wasn’t a hazard,” but the smoke remained inside the tank and he could not breathe. Mitchell ceased working, and his assistant went to Strelau, who gave them dust masks to wear. When it appeared that the dust masks were insufficient, Strelau suggested that they put a box fan on top of the tank to suck the smoke out, but that also failed. According to Mitchell, he went back to Strelau to tell him about the problem, and Strelau asked whether the rubber coating was burning. When Mitchell told Strelau that oil inside the pipe was causing the problem, Strelau reassured him that the rubber was “not supposed to [burn].”

Still confronted with the smoke, Strelau fitted Mitchell with a respirator. Mitchell donned the respirator and reentered the tank to resume cutting the pipes with his plazmark. While he was doing so, the rubber coating caught fire. The flames blocked Mitchell’s only means of escaping the tank, a manhole approximately 20 feet above. The fire was eventually extinguished, and Mitchell was rescued from the tank. Mitchell and his wife filed the instant action to recover for the injuries sustained as a result of the incident.

On appeal, Long Leaf acknowledges that OCGA § 51-3-1 imposes a duty on a landowner to use ordinary care to keep its premises safe for workers, but argues that this case is an exception because Mitchell’s work necessarily changed the character of the workplace. The exception applies “where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality. . ., and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him.”

But this exception did not necessarily apply here. It presupposes that the involved risk is incidental to the work performed and, therefore, known to, and assumed by, the worker. This is because “an employee or contractor assumes all the usual and ordinary hazards of his business and is bound to use skill and diligence to protect himself. He also assumes any special risk which is known to him or which is so obvious that a reasonably prudent man would observe and appreciate it.”

Here, the latent defect associated with the rubber catching fire was unknown to Mitchell. Thus, Long Leaf, which admittedly knew that the substance would burn, was required to inform him of the danger. Long Leaf could have satisfied its duty by notifying Mitchell’s employer, Lyle, of the risk, and there is evidence that it did so. But there is also evidence that Long Leaf’s representatives repeatedly reassured Mitchell that it was safe to use the plazmark inside the tank because the rubber coating was not flammable. Accordingly, even if the jury believed Lyle was warned of the danger, it could also have found that Long Leaf’s repeated negligent misrepresentations to Mitchell vitiated the company’s attempt to satisfy its duty by warning Lyle. Considering the latent nature of the defect, and evidence of Long Leafs misrepresentations to Mitchell, it was for a jury to determine whether Long Leaf was liable to the Mitchells for failing to warn William Mitchell that the rubber coating would burn. Accordingly, the trial court properly denied Long Leaf’s motion for directed verdict.

2. Although the trial court properly refused to grant a directed verdict to Long Leaf, we agree with the defendant that the court’s jury instructions necessitate a new trial. The record shows that the court charged the jury on plaintiffs’ request to charge no. 4 by instructing that

[a]n owner having work done on his premises by an independent contractor, when that owner has actual or constructive knowledge of potential dangers on the premises, owes a duty to the contractor as a business invitee to give warning of or use ordinary care to furnish protection against such dangers to the contractor and his employees who are without actual or constructive notice of the dangers and which could not be discovered by them in the exercise of ordinary care.

Almost immediately upon retiring to the jury room, the jurors sent a note to the court asking: “How is a contractor defined? Is it [sic] the company to include the individual or just the company head?” Counsel for both parties apparently believed that the question concerned the court’s charge on plaintiffs’ request no. 4, and the court responded by repeating the charge to the jury. Long Leaf objected, arguing that the recharge did not explain to the jurors that an owner can discharge its duty to warn of defects by warning the contractor and that, under such circumstances, there would be no duty to notify each of the contractor’s employees. The trial court rejected counsel’s request to clarify the issue for the jury.

When a jury requests clarification on a specific point, the trial court should reply “by providing a correct statement of the law that responds to the jury’s request.” In this case, the court’s initial charge and recharge were accurate statements of the law under McFadden Business Publications v. Guidry. As stated in the charge, Guidry provided that an owner has a duty to either make the premises safe or warn “the contractor and his employees who are without actual or constructive notice of the dangers.” Although this is a correct statement of the law, we believe that its use as a jury instruction in this case, without clarification, likely created confusion.

We note initially that the court’s recharge was unresponsive to the jury’s question concerning the definition of a contractor. Furthermore, it appears, as argued by counsel for both parties at trial, that the question concerned the court’s charge on Long Leaf’s duty to warn a contractor about defects. Yet, the court merely restated the charge that likely caused the confusion in the first place. That charge, at first glance, appears to require an owner to notify both a contractor and its employees of a defect. This is not the law, however, because “[flull knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.” The jury was never informed- of this legal principle, and we do not know whether it based its verdict on the fact that, notwithstanding Lyle’s knowledge, Long Leaf failed to discharge its duty because it never warned Mitchell of the danger. Furthermore, under Guidry, an owner is required to warn both the contractor and his employees only if they have no actual or constructive notice. The court’s instructions, however, did not inform the jury about the meaning of constructive notice or how Mitchell could be charged with such notice. Inasmuch as the true basis of Long Leaf’s liability was its superior knowledge of the defect, it was essential that the trial court clearly instruct the jurors of the different means that the owner could satisfy its duties to the contractor, Lyle, and his employee, Mitchell. As evidenced by the jury’s question and the court’s recharge to the jury, this was not accomplished. Accordingly, a new trial is required.

3. Because Long Leaf’s two other assertions of error concern issues that might arise on retrial, we address them briefly here.

(a) Long Leaf asserts that the trial court erred in admitting evidence of violations under the Occupational Safety & Health Act (“OSHA”) because Mitchell was not Long Leaf’s employee. Although evidence of OSHA violations under these circumstances does not establish negligence per se, we have held that evidence of nonconformity with OSHA standards is admissible as proof of a landowner’s superior knowledge of a defect under OCGA § 51-3-1.

Decided November 7, 2001

Lokey & Smith, Malcolm Smith, for appellant.

Gammon & Anderson, W. Wright Gammon, Jr., Brad J. McFall, for appellees.

(b) Long Leaf also asserts that the trial court erred in awarding prejudgment interest under Georgia’s Unliquidated Damages Interest Act because the Mitchells’ demand letter was addressed only to Long Leaf’s insurer. The letter indicates, however, that it was also sent to Long Leaf, via certified mail. Thus, contrary to Long Leaf’s assertion, our decision in Resnik v. Pittman would not preclude an award of prejudgment interest on this ground.

Judgment reversed and remanded.

Johnson, P J., and Ellington, J., concur.

       OCGA § 9-11-50 (a).

       See Crump v. McDonald, 239 Ga. App. 647-648 (1) (520 SE2d 283) (1999).

       We note that the Mitchells’ appellate brief contains numerous citations to the video deposition transcript of Long Leaf’s plant manager. The Mitchells have not shown, however, that the deposition was presented to the jury. In the absence of such evidence, we cannot rely on these record citations in determining whether the trial court erred in denying Long Leaf’s motion for directed verdict.

       See Howell v. Farmers Peanut &c., 212 Ga. App, 610, 611 (1) (442 SE2d 904) (1994).

       (Punctuation omitted.) Id.

       See Seagraves v. ABCO Mfg. Co., 118 Ga. App. 414, 418 (2) (164 SE2d 242) (1968).

       (Citations omitted.) Id.

       Id. at 418-419 (defendant knew of latent defect associated with tank catching fire but failed to warn welder of the danger).

       See Douberly v. Okefenokee Rural Elec. Membership Corp., 146 Ga. App. 568, 570 (2) (246 SE2d 708) (1978).

        Seagraves, supra at 417 (ruling that landowner could be held liable for negligently misinforming welder of risk).

       See id. at 419.

       See id.; Crump, supra.

       Contrary to the Mitchells’ argument, Long Leaf timely preserved its objection to the recharge by raising it before the jury returned its verdict. See Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 81 (1) (532 SE2d 159) (2000).

       (Emphasis in original.) Hartman v. Shallowford Community Hosp., 219 Ga. App. 498, 500 (2) (466 SE2d 33) (1995) (physical precedent only).

       177 Ga. App. 885, 888 (2) (341 SE2d 294) (1986).

       (Punctuation omitted; emphasis supplied.) Id.

       (Punctuation omitted.) Douberly, supra at 570 (2).

        West v. Briggs & Stratton Corp., 244 Ga. App. 840, 844 (536 SE2d 828) (2000).

       See Hartman, supra at 501.

       See id. at 500.

       See 29 USC § 651 et seq.

       See Johnson v. Kimberly Clark, 233 Ga. App. 508, 512 (504 SE2d 536) (1998); Brantley v. Custom Sprinkler Systems, 218 Ga. App. 431, 432 (1) (461 SE2d 592) (1995); Dupree v. Keller Indus., 199 Ga. App. 138, 142 (1) (404 SE2d 291) (1991).

       See Johnson, supra at 511-512.

       OCGA § 51-12-14.

       203 Ga. App. 835 (418 SE2d 116) (1992) (reversing award of prejudgment interest because letter was sent only to insurance company and it was “uncontroverted that appellee did not. . . send a copy ... to appellant”).


text:
    A01A1786.
    GADSON v. THE STATE.
    (556 SE2d 449)
   Mikell, Judge.

Following a jury trial, Rolando Gadson was convicted for the sale of a controlled substance. On appeal, he contends that the evidence was insufficient to support his conviction, that the trial court erred in a number of rulings, and that he received ineffective assistance of counsel. We find that these claims have no merit, and for the reasons set forth below, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that an undercover Chatham County police officer went to a residence at 306 West 32nd Street in Savannah to buy cocaine. The officer found an elderly man sitting on the porch, and she asked him for a “twenty.” The man did not understand her, but soon a younger man appeared at the door and asked the detective what she needed. The young man went back inside the house and reappeared with Gadson, who sold the officer three pieces of crack cocaine for $20. No arrests were made that evening.

The following day, based on the undercover purchase of cocaine, police obtained and executed a search warrant for 306 West 32nd Street. Police encountered Troy Williams standing in the front doorway and found Gadson sleeping in a back bedroom. They also found what appeared to be two pieces of crack cocaine and two pipes in the dining room. Gadson and Williams were detained by the police and photographed. The undercover officer examined the photographs of the two men and identified Gadson as the man who sold her the cocaine; the officer had not seen Williams on the night of the sale. At trial, the purchasing officer identified Gadson. The state produced expert testimony that the substance the officer received from Gadson was cocaine.

1. In his first enumeration of error, Gadson claims the jury verdict was against the weight of the evidence. The standard of review is whether, after viewing the evidence in the light most favorable to the jury’s verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Inasmuch as the undercover officer identified Gadson as the man she bought cocaine from both by photograph and at trial, we find the evidence was sufficient to support Gadson’s conviction.

2. Gadson claims the state failed to comply with his discovery requests by failing to produce a crime lab report until the day of trial. He asserts that the evidence associated with the report should have been suppressed. The state prepared two crime lab reports. The first report was prepared in connection with the cocaine purchased by the undercover officer, and this report was served on Gadson’s counsel several months before trial. The second crime lab report, which was prepared in connection with the evidence seized during the execution of the search warrant, was given to defense counsel on the day of trial. The trial court ruled that no evidence could be admitted in connection with the second lab report and subsequently directed a verdict in favor of Gadson on the charge of possession of a controlled substance. However, as the state complied with discovery with respect to the first lab report, the failure to timely deliver the second report to defense counsel does not affect Gadson’s conviction for the sale of a controlled substance.

3. Gadson claims the trial court erred in granting the state’s motion in limine to bar defense counsel from referencing the state’s failure to call Williams as a witness. Our Supreme Court has provided that “[w]hile no legal presumption may arise from the failure to introduce certain witnesses, it is proper for opposing counsel to draw an inference of fact from such failure and comment on the failure to the jury when there is competent evidence before the jury that the missing witness has knowledge of material and relevant facts.” There is, however, no competent evidence that Williams was present when the drug buy occurred. The undercover officer indicated she did not recognize Williams from her visit to 306 West 32nd Street; Williams told police after the execution of the search warrant that he did not live at that address; and Gadson’s defense was that he was in South Carolina on the date of the sale. Accordingly, there was no inference raised by the state’s failure to call Williams insofar as it pertained to the offense of sale of a controlled substance. Despite the trial court’s ruling prohibiting defense counsel from referencing the state’s failure to produce Williams, Gadson’s counsel argued to the jury that Williams “didn’t come to court” and that Williams sold drugs. Therefore, Gadson cannot show harm even if the trial court was in error in granting the state’s motion in limine.

4. Gadson claims the trial court erred by not dismissing all charges against him because no probable cause existed for his arrest. “Probable cause exists if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.” Gadson points to the exclusion of the crime lab report to support his argument that no probable cause existed for his arrest. However, when the police executed the search warrant they found a substance which appeared to be cocaine and which a field test showed to be cocaine. Gadson admitted to living at the address. The subsequent suppression of the crime lab results with respect to the items seized during the execution of the search warrant has no bearing on whether the police had probable cause to arrest Gadson immediately following the execution of the search warrant. The trial court did not err in denying Gadson’s motion to dismiss on the basis of failure to establish probable cause for his arrest.

5. Gadson claims the trial court erred in denying counsel’s motion to dismiss on the grounds that the search warrant did not sufficiently identify Gadson as the person to be seized. We disagree. The search warrant was issued for the search of the premises at 306 West 32nd Street on the belief that controlled substances would be present. As the warrant allowed police to identify with reasonable certainty the place to be searched, it was not inadequate.

6. Gadson claims the trial court erred in overruling his objection, on the grounds of hearsay, to the testimony of Detective Hayes that a photograph of Williams was shown to the undercover officer. However, Hayes testified that this statement was based on personal knowledge, and the undercover officer testified that she had been shown a photograph of Williams. We find no error.

7. Gadson argues that the trial court erred in refusing to allow him to introduce certified copies of Williams’s prior convictions to show Williams’s propensity to commit crimes. Williams was not called as a witness, and so the convictions were not admissible for purposes of impeachment. Williams’s criminal history was not otherwise relevant, and irrelevant matters should be excluded. The trial court acted properly in refusing to allow the prior convictions into evidence.

8. After Gadson was detained during the course of the execution of the search warrant, he told the police that he lived at that residence with his wife and daughter. The police officer who questioned Gadson concerning where he lived did not write the statement down or make the prosecution aware of the statement, and the statement was not provided to defense counsel before trial. Gadson claims this communication was a statement made in custody which must be provided to the defense counsel upon timely request; that the statement was not provided to counsel; and that the statement accordingly should have been excluded from evidence. The state does not dispute that Gadson was in custody when he made the statement. The record indicates he had been arrested and advised of his Miranda rights before being asked where he lived. Nevertheless,

reversal is not required when the State fails to disclose a defendant’s statement which on its face is not directly incriminating or inculpatory but becomes so only as a result of a defense theory developed at trial. In other words, if the statement is not per se inculpatory or incriminating, the failure of the State to divulge the statement to defendant prior to trial does not constitute reversible error.

We find that Gadson’s statement to police regarding his place of residence was not per se inculpatory and a reversal of Gadson’s conviction is not authorized even if, as he contends, his in-custody statement to police should have been disclosed to defense counsel before trial.

9. Defense counsel objected to the introduction into evidence of the cocaine purchased by the undercover officer. Gadson claims the trial court erred in admitting the evidence because the officer testified to having purchased three pieces of a substance while the tendered evidence contained more than three pieces. However, the witness from the crime lab explained that he broke off a piece for testing and that the substance was prone to breaking into smaller pieces. Testimony establishes the chain of custody from the purchase of the tendered substance by the undercover officer, its delivery to and receipt by the crime lab, and its presence in court. Any discrepancy in the testimony of the undercover officer and the witness from the crime lab would go to weight and credibility and would not preclude the admission of the cocaine into evidence. The trial court did not err in overruling defense counsel’s objection to the admission of the cocaine.

10. Gadson claims the trial court erred in denying defense counsel’s motion to dismiss on the grounds that the state failed to prove venue. The record shows that the undercover purchase occurred in Chatham County, and so this claim is without merit.

11. Gadson claims that he received ineffective assistance of counsel because his trial counsel (a) failed to make a motion to suppress photographs used to identify him, (b) did not subpoena his alibi witnesses, (c) did not spend sufficient time in preparing and investigating his case, and (d) failed to challenge his sentence. To establish a claim of ineffective assistance of counsel at trial, a defendant must show that the attorney’s performance was deficient and that the deficient performance prejudiced the defense. The standard of review of the trial court’s determination of the effectiveness of counsel is whether the trial court’s findings are clearly erroneous.

(a) Gadson claims his counsel was ineffective in failing to make a motion to suppress the photographs used to identify him. Failure to file a motion to suppress is not per se ineffective assistance of counsel; Gadson must make a strong showing that if trial counsel had made a motion to suppress, damaging evidence would have been suppressed. The record shows that the undercover agent who made the cocaine sale was shown two photographs the day after the drug purchase. From the photographs, she identified Gadson as the man who made the sale. The agent identified Gadson in court. We find nothing showing that the agent’s identification of Gadson from the photographs was impermissibly suggestive or that there was a substantial likelihood of irreparable misidentification. Accordingly, the trial court did not err in ruling that counsel was not ineffective for failure to request the suppression of the photographs used to identify Gadson.

(b) Gadson claims his trial counsel rendered ineffective assistance because he did not call alibi witnesses who would have testified that Gadson was in South Carolina on the day the crime occurred. However, Gadson never proffered evidence at his motion for new trial showing that these alibi witnesses would have actually so testified had they been subpoenaed. Having failed to present more than his bare assertions that the witnesses could have supported his alibi defense, Gadson cannot show his counsel was ineffective in failing to call them.

(c) Gadson maintains that his trial counsel did not prepare for or investigate his case properly. However, trial counsel’s testimony at the motion for new trial shows that he did prepare for Gadson’s trial and that he interviewed potential witnesses. We find no basis for overturning the trial court’s decision that Gadson’s trial counsel was not ineffective on the grounds of lack of preparation or investigation.

(d) Gadson claims his trial counsel was ineffective for failing to challenge the imposition of a life sentence under the then applicable provisions of OCGA § 16-13-30 (d). However, he fails to show how such a challenge could be successfully made. The trial court did not err in failing to find trial counsel ineffective on this basis.

Decided November 7, 2001.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Larry Chisolm, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

       Gadson was tried and found guilty on January 26, 1993. On December 1, 1997, the trial court granted him leave to file an out-of-time motion for new trial. An order denying Gadson’s motion for new trial was entered on February 23, 2001.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       See Robinson v. State, 263 Ga. 424 (1) (435 SE2d 207) (1993).

         (Emphasis omitted.) Morgan v. State, 267 Ga. 203, 205-206 (3) (476 SE2d 747) (1996).

       (Punctuation omitted.) State v. Tyson, 273 Ga. 690, 693 (3) (544 SE2d 444) (2001).

       See OCGA § 17-5-21.

       Compare Vaughn v. State, 141 Ga. App. 453, 454 (233 SE2d 848) (1977).

       OCGA § 24-2-1.

       See Talley v. State, 251 Ga. 42-43 (302 SE2d 355) (1983). This case was tried while OCGA § 17-7-210 was in effect. “OCGA § 17-7-210 (c) [unlike its successor OCGA § 17-16-6] mandated exclusion upon the State’s failure to comply with a defendant’s timely written request for a copy of his oral or written statement.” Marshall v. State, 230 Ga. App. 116, 118 (2), n. 2 (495 SE2d 585) (1998).

       See Rhode Island v. Innis, 446 U. S. 291, 301 (100 SC 1682, 64 LE2d 297) (1980).

        Dawson v. State, 203 Ga. App. 146, 147 (1) (416 SE2d 125) (1992).

       See Gosier v. State, 241 Ga. App. 384, 386 (1) (526 SE2d 890) (1999).

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       See Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

       See Mayes v. State, 229 Ga. App. 372, 373 (1) (494 SE2d 34) (1997).

       See Gravitt v. State, 239 Ga. 709, 710 (4) (239 SE2d 149) (1977).

       Compare Richardson v. State, 189 Ga. App. 113 (375 SE2d 59) (1988).

       See Hall v. State, 243 Ga. App. 804, 806 (534 SE2d 196) (2000).