author: Pope, Chief Judge. Blackburn, Judge, Birdsong, Presiding Judge,

text:
    A93A1374.
    WALLACE et al. v. BOYS CLUB OF ALBANY, GEORGIA, INC.
    (439 SE2d 746)
   Pope, Chief Judge.

Plaintiffs, a child and his parents, appeal from the trial court’s grant of summary judgment for defendant Boys Club.

We view the evidence in the light most favorable to plaintiffs as the non-movants on a motion for summary judgment. Jonquary Wallace, a five-year-old boy, participated in defendant’s summer day camp program. Defendant’s employees testified that the boys in the program were to be under the direct supervision of an adult staff person at all times. There was also testimony that a desk by the front door was manned at all times, and that the staff person at that desk should not have permitted a young child to just walk out the door. Nonetheless, one day Jonquary was able to walk out the front door and go around the building to look at the swimming pool without adult accompaniment. He was then abducted and assaulted. Defendant’s staff did not notice his absence until Jonquary’s older brother brought it to their attention. A search proved fruitless until someone heard that a young boy had been found in the woods by the police, and that young boy turned out to be Jonquary. About a month before Jonquary’s abduction and assault, defendant called Jonquary’s parents and told them Jonquary was missing. After a thorough search of the premises, Jonquary was found asleep in a small room in the library. Jonquary’s parents expressed concern about defendant and its security procedures at that time. When two of defendant’s employees reassured them and promised them that the staff would watch Jonquary and keep track of his whereabouts, however, Jonquary’s' parents allowed him to continue to attend the camp.

Plaintiffs sued defendant for negligence in its supervision of Jonquary. The trial court granted summary judgment, utilizing a premises liability analysis and stating that a heightened standard of care did not result from defendant’s undertaking to supervise the child because “[t]here is no evidence of reliance by the parents of Jonquary Wallace on any promise by the defendant to protect Jonquary from the criminal acts of third persons.”

1. Plaintiffs argue that the trial court erred in treating this as a premises liability case rather than one involving negligence in the supervision of a child of tender age. We agree. Thus, the applicable duty of care is that set forth in Laite v. Baxter, 126 Ga. App. 743, 745-746 (2) (191 SE2d 531) (1972): “ ‘[T]he measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent; such person is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.’ [Cit.] ‘The measure of precaution which must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances.’ [Cit.] ‘As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.’ [Cit.]” See also 57 AmJur2d, Negligence, § .204. Applying this standard to the facts of this case, we conclude that a material issue of fact exists regarding whether a prudent person caring for a five or six-year-old child under similar circumstances would have allowed the child to leave the building without an older person, and thus whether defendant breached its duty of care. See also Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (3) (394 SE2d 345) (1990) (“even in premises liability cases, the age of the injured person is relevant,” and landowner may be held to higher standard of care toward a child than toward an adult).

Moreover, there is evidence that defendant undertook to ensure that Jonquary was under the direct supervision of an adult at all times and that a child of his age would not leave the building unattended or unquestioned. And contrary to the trial court’s statement in its order granting summary judgment for defendant, there is evidence that defendant promised to watch Jonquary and keep track of his whereabouts, and that Jonquary’s parents relied on that promise. When one promises to do something and another reasonably and foreseeably relies on that promise, the promisor has a duty to perform the promised act in a non-negligent manner. Mixon v. Dobbs Houses, 149 Ga. App. 481 (254 SE2d 864) (1979). Accordingly, the duty imposed on defendant in this case is not only the general legal duty owed by anyone who undertakes the care of a child but also the duty arising from defendant’s policies, its promises to Jonquary’s parents to enforce those policies and Jonquary’s parents’ reliance on those promises. See also McGarr v. Baltimore Area Council, Boy Scouts, 536 A2d 728, 734 (Md. Ct. Spec. App. 1988).

2. Defendant contends that even if it was negligent in its supervision of Jonquary, its liability for that negligence was cut off by the intervening criminal act of a third party because that intervening criminal act was unforeseeable. Because it is undisputed that no substantially similar criminal act had occurred in or around the Boys Club prior to this one, defendant argues Jonquary’s abduction and assault were unforeseeable as a matter of law. See Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991). Savannah College is a premises liability case, however, and even if a specific showing of a prior similar act on a defendant’s premises is required in a premises liability case, it is not required in a case involving liability for the negligent supervision of a child. In a premises liability case the landowner can only be held liable for what occurs on the premises. Thus, in order to hold the landowner liable despite the intervening criminal act of a third party, the plaintiff must show that the landowner had notice of a danger specific to the premises. In the case of negligent supervision of a child, however, what is reasonably foreseeable is not exclusively dependent upon what is known about a specific place. The danger is not only what may happen at a specific place but what may happen to any child at any place, given that children are mobile and may, as in this case, wander away from the place where they are supposed to be if they are not adequately supervised. What is at issue in a case alleging negligent supervision of a child is whether the danger of the type of harm the child suffered was reasonably foreseeable. Accordingly, the fact that no similar act had previously occurred on or near the defendant’s premises is not dispositive of the issue of whether a jury could conclude the defendant had notice that the danger of abduction and assault existed in regard to a five or six-year-old child who wandered away from defendant’s premises without adult supervision.

Based on the foregoing, we cannot rule that the intervening criminal act was unforeseeable as a matter of law. One has only to read the daily newspapers, or even the reported cases of this court, to appreciate the prevalence of child abduction and abuse in our society. Perhaps no child has ever been struck by a car on the street near defendant’s premises or drowned in the nearby swimming pool, but these dangers are so obviously foreseeable that an unforeseeability argument could not reasonably be made concerning these dangers to an unsupervised child. Likewise, simply because no child had ever been the victim of abduction and assault near the defendant’s premises does not establish, as a matter of law, that such a danger to an unsupervised child of tender years is unforeseeable in this day. Though we wish it were otherwise, a jury could reasonably find that the abduction and abuse of young children who are not properly supervised is foreseeable and is one of the dangers parents and other care givers expressly protect children from by providing them proper supervision and care. That the danger in this case arose from criminal misconduct is irrelevant if it is foreseeable; the law cannot ignore the reality of what is commonly known to all who care for children. See Wallace v. Der-Ohanian, 18 Cal. Rptr. 892 (Cal. Dist. Ct. App. 1962).

Judgment reversed.

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

Blackburn, Judge,

concurring specially.

I generally agree with the majority opinion that this action involves a claim for negligent supervision of a child, rather than a proprietor’s liability to a patron for the criminal acts of a third party, and that a jury question exists as to duty of care assumed and breached by the defendant. However, I would further find that the criminal act perpetrated against the unsupervised child in this case was foreseeable as a matter of law.

A primary purpose of supervising a child is to protect the child from harm. A child of tender years is especially vulnerable to a host of hazards to which he or she may be exposed or which he or she may create in the absence of supervision, control and protection. Some of those hazards are commonplace and obvious, such as the dangers presented by crossing a street, exposure to the elements, getting lost, climbing a tree, playing with fire, or even a dog bite. Such dangers are within the general course of human probabilities, and if an unsupervised child suffered an injury as a consequence of being subjected to one of these risks, any argument that the danger was unforeseeable would not stand. Likewise, the risk of a criminal act being perpetrated against a child is one of the harms from which a child must be protected by one assuming care and control of the child. It is unnecessary to prove that the specific criminal act was foreseeable where a duty exists to protect a child from general criminal acts. Any argument that it is unforeseeable that a child of tender years who is allowed to wander off may fall prey to a predator violates reason, nature, common sense and the very substance of the duty of care owed to the child.

In a cause of action based upon the negligent failure to supervise a child, after the duty to supervise has been established, the most critical question is whether the child was exposed to and injured by one of the general types of harm which supervision is intended to guard against in the first place, and to which the child would not have been subjected in the absence of the failure to supervise. The risk of criminal harm to one’s child tops the list of indisputable hazards from which parents attempt to protect their children by supervision. With what risk would one replace this concern and from what list would it be excluded? “Inextricably entwined with concepts of negligence and proximate cause is a notion of foreseeability, not foreseeability as to the particular harm but that some harm would occur.” (Citations and punctuation omitted.) Brandvain v. Ridgeview Inst., 188 Ga. App. 106, 115 (373 SE2d 265) (1988). Foreseeability is usually a question for the jury, but in “plain, palpable and undisputable” cases, the issue may be decided as a matter of law. Knudson v. Lenny’s, 202 Ga. App. 85 (413 SE2d 258) (1991). In the instant case, I believe that the foreseeability of the risk of criminal harm to the unsupervised child may be decided affirmatively as a matter of law as there could be no other conclusion under the facts of this case.

Birdsong, Presiding Judge,

dissenting.

The majority has attempted to create a rule of law that vests upon all who supervise another’s child an obligation so stringent in application that such supervising person or entity becomes in effect an insurer for the safety of such child; I am compelled to dissent. By dramatically extending the range of foreseeability of all who supervise children, the majority has increased the potential for liability of all who supervise children whether such be undertaken for profit, civic duty, or mere personal accommodation borne of neighborly compassion.

Bad facts spawn bad law; the facts of this case (to the extent adequately developed in the record) are bad! This child suffers the effects of a horrible crime caused by the depraved misconduct of a third party. Bad and painful things happened to this innocent little boy. Thus, the majority understandably strives to justify its disposition of this matter — unfortunately by reaching in several instances beyond the pale of the official record. For good reason, this court has opined repeatedly that the appellate process affords no latitude to make adjustments either for the ill-earned good fortune of the lucky or for the heart-rending misfortune of the unlucky. First Financial Ins. Co. v. Rainey, 195 Ga. App. 655, 664 (394 SE2d 774). I am concerned that a majority of my colleagues has disposed of this case by inadvertently making “adjustments.”

1. The majority claims it is construing the evidence most favorable to the plaintiffs as the nonmovants on a motion for summary judgment. However, in doing so an appellate court cannot ignore statutory requirements. OCGA § 9-11-56 (e) requires, in effect, that the medium used to present evidence either in support or opposition to a motion for summary judgment (e.g., affidavit, deposition, answers to interrogatories) “set forth such facts as would be admissible in the evidence.” Thus hearsay evidence, being without probative value for any purpose with or without objection at trial, cannot be considered in disposition of a summary judgment motion, unless it is part of the res gestae. See Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2 a) (397 SE2d 576). Further, “[i]n response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial.” (Emphasis supplied.) Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47).

There is no deposition or affidavit from the victim included in this record. In fact, there exists no eyewitness account as to how specifically, when specifically, or why specifically the child vanished from the Boys Club. The statement of facts, recited in the majority opinion, as to how and why the child departed the premises, at best, are based on speculations of witnesses. An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678). Further, negligence is not to be presumed, but is a matter for affirmative proof; the mere fact of injury or damage does not give rise to a presumption or inference of negligence; and, in the absence of affirmative proof of negligence, we must presume the performance of duty and freedom from negligence. Wilson v. Southern R. Co., 208 Ga. App. 598, 600 (2) (431 SE2d 383).

Applying the duty of care of Laite v. Baxter, 126 Ga. App. 743 (2) (191 SE2d 531), the majority concludes that, based on facts perceived by them to have been adequately established, a genuine issue of material fact exists as to appellant’s duty and breach thereof. Pretermitting whether Laite v. Baxter, supra, or the premises liability standards for “active negligence” of Wade v. Mitchell, 206 Ga. App. 265 (2) (424 SE2d 810) apply and whether a genuine issue of material fact as to the issues of duty and breach exist is whether a genuine issue of material fact exists as to causation.

Two distinct legal theories are involved in questions of causation; theories of direct causation and proximate cause. As to proximate cause, the inquiry is not whether the defendant’s conduct constituted a cause of the injury, but whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery; even where a defendant is negligent, if other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote and contingent to be the basis of a recovery. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 393 (4) (394 SE2d 345). Proximate cause in law has been aptly described as a limit on legal liability; it is a policy decision that for a variety of reasons (e.g., intervening act) the defendant’s conduct will be deemed too remote in relation to plaintiff’s injuries to support recovery. Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16). For reasons hereinafter discussed, I believe that there exists no genuine issue of fact necessary to support a finding of proximate cause.

2. In my view, the majority has engaged in a radical departure in its application of principles of foreseeability, thereby making those who supervise children in effect insurers for their charges’ safety. Further, this is accomplished notwithstanding the contrary expressions of Laite v. Baxter, supra, and Riley v. Brasunas, 210 Ga. App. 865 (438 SE2d 113).

Although usually arising in premises liability cases, this state has a well-established body of law pertaining to the foreseeability of acts of criminal conduct committed during the intervention of a third party. The majority has chosen not to apply this law but rather to forge a new standard as to foreseeability in child supervision cases, apparently relying on secondary authority — the opinion of a California intermediate appellate court. Although I have the strongest feelings of compassion and sympathy for the victim in this case, I cannot follow the uncharted course set by my colleagues.

In this case, the victim’s injuries were directly caused by the criminal acts perpetrated upon him by a third party. Also, as must be conceded by the majority, there exists not one shred of evidence of any similar violent criminal sexual attack at or near the Boys Club; there exists no evidence of any type of violence at or near the Boys Club, sexual or otherwise. Further, the record does not establish that the Boys Club knew or reasonably should have known of the sexual proclivities of the victim’s assailant. Nevertheless, the majority concludes, as a matter of judicial policy regarding the issue of proximate cause, that a specific supervisor of children must foresee all forms of intervening child abuse and related criminal conduct merely because the majority deems it a matter of general public knowledge that children have been the subjects of abduction and abuse by third parties, albeit such criminal interventions may have occurred under a variety of dissimilar circumstances and at other times and other places. The majority attempts to justify this position by stating that “[o]ne has only to read the daily newspapers, or even the reported cases of this court, to appreciate the prevalence of child abduction and abuse in our society.” While there have been numerous reported incidents of a variety of child abuse cases (far more often committed by parents, relatives or family friends of a victim than by strangers abducting the child), can it be legitimately concluded that such conduct is now “prevalent” in our society? I think not. Is the local Sunday School teacher in a relatively crime-free, rural community now required reasonably to foresee that a child who physically strays from the fold will be abducted from church property even though no similar acts have ever occurred previously in that community? It would seem so, if all that is required is a general finding, notwithstanding the state of the trial record, that child abuse and abduction appears to be prevalent in our society. Additionally, the majority states, “[t] hough we wish it were otherwise, a jury could reasonably find that the abduction and abuse of young children who are not properly supervised is foreseeable and is one of the dangers parents and other care givers expressly protect children from by providing them proper supervision and care.” (Emphasis supplied.) The potential for expansion of parental and volunteer care giver liability posed by this broad language is self-evident. I cannot join in such a holding.

The majority discounts the precedent of Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848), requiring a specific showing of similar acts on or near the premises, as being a rule applicable only to premises liability cases. While not conceding that premises liability law does not here pertain, I believe that the general rules pertaining to foreseeability of third-party criminal intervention are not limited in application to premises liability cases. In Rosinek v. Cox Enterprises, 166 Ga. App. 699 (305 SE2d 393), appellant sought to recover for the alleged negligence of appellee in delivering papers when appellant was not at home thereby increasing the risk of burglary to her subsequently burglarized home. In Rosinek, this court applied the general rule of third-party criminal intervention, thus: “Generally, an intervening criminal act of a third-party, without which the injury would not have occurred, will be treated as the proximate cause of the injury, thus superseding any negligence of the defendant; however, if the criminal act was a reasonably foreseeable consequence of the defendant’s conduct, the causal connection between that conduct and the injury is not broken.” Id. at 700; compare Gafford v. Duncan, 210 Ga. App. 350 (436 SE2d 78) (physical precedent only). The similarity rule employed in Savannah College, supra, is well established. Compare Ashley v. Balcor Property &c., 205 Ga. App. 590 (423 SE2d 14) and cases therein cited; Nalle v. Quality Inn, 183 Ga. App. 119 (358 SE2d 281). In Savannah College, supra at 766, the Supreme Court concluded, citing Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70 (378 SE2d 323), that “[i]n light of the dearth of evidence of the occurrence of prior substantially similar incidents, the college was entitled to summary judgment because there was no evidence sufficient to create a factual issue as to whether the college knew or should have known that its dormitory residents were at risk of a violent criminal sexual attack.” In Adler, supra at 70, this court in upholding grant of summary judgment observed that “ ‘ “[w]hile the relevancy of other occurrences is ordinarily within the sound discretion of the court, ‘it is necessary that the conditions of the things compared be substantially similar.’ [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. . . .” McCoy v. Gay, 165 Ga. App. 590, 592 (302 SE2d 130).’ ” This rule, as adopted from McCoy, supra, can be directly traced to an appellate ruling in a personal injury action appeal in Carlton Co. v. Poss, 124 Ga. App. 154, 155 (3) (183 SE2d 231), aff’d Poss v. Carlton Co., 228 Ga. 402 (185 SE2d 803). The similarity rule is not restricted in scope merely to premises liability cases; it is a separate rule operating as a part of the body of law concerning foreseeability in third-party (criminal) intervention cases.

As in Adler, supra at 69, it is “ ‘ “[n]ot what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen,” that is the key whether a jury issue arises as to the issue of proximate cause in situations involving intervening third-party criminal activity. This result is consistent with the long-standing rule that “ ‘one is not ordinarily charged with the duty to anticipate acts mala per se.’ ” Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865). In this case, defendant/movant produced evidence establishing the existence of intervention in the form of third-party criminal activity, this evidence was sufficient to overcome plaintiff’s pleadings, under the basic rule that liability generally will not occur when injury is due to the criminal misconduct of others. Having discharged its duty in summary judgment cases, under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), the nonmoving appellants were required to “point to specific evidence giving rise to a triable issue” — in this situation, a triable issue as to proximate cause. Appellants, in my view, failed to carry their burden under Lau’s, supra, and have failed to do so regardless of whether the “similarity rule” is here applicable. Questions of proximate cause and foreseeability may and should be decided as questions of law in clear and palpable cases. Atlanta Gas Light Co., supra at 393.

I respectfully dissent. I am authorized to state that Judge Andrews joins in this dissent.

Decided December 3, 1993

Reconsideration denied December 20, 1993

Andrew M. Scherffius III, Tamara M. Ayres, James C. Brim, Jr., for appellants.

Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellee.

       Boys Club membership is limited to boys of ages six through eighteen, and Jonquary’s application indicated that he was six even though he was five. However, there is evidence that Club personnel knew Jonquary was actually five years old and nonetheless allowed him to attend as a member and participate in Club activities.

       Although Savannah College and other premises liability cases are often read to suggest that a plaintiff must always show a prior similar incident on the landowners’ premises to establish that a danger was foreseeable, we note that Savannah College does not hold that such a specific showing is always required. An absolute requirement of this nature would create the equivalent of a “one free bite rule” for premises liability, even if the landowner otherwise knew that the danger existed. Evidence of a prior substantially similar act is one way to establish notice and foreseeability, and in most cases it will be the only possible way to do so. It is conceivable, however, that a danger could be so obvious that an issue for jury determination could exist regarding notice and/or foreseeability despite the absence of a prior similar incident on those premises. And in some cases the defendant may even acknowledge that it knew of the specific danger. In Savannah College, the danger was not so obvious and there was no other evidence to create an issue of fact as to the foreseeability of the danger at issue.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A93A1375.
    BLUM v. RES ASSOCIATES, LTD.
    (439 SE2d 712)
   Cooper, Judge.

Appellant appeals the trial court’s grant of directed verdict in favor of appellee.

Appellant stored his airplane at Gwinnett County Airport from 1976 or 1977 until 1988 when he discovered the plane had been cannibalized. In December 1988, he filed suit against Air Center Gwinnett (Air Center), the operator of the airport from 1986 until 1991, essentially alleging it breached the oral contract he had to store and secure his plane. The trial court granted summary judgment to Air Center and this court reversed, finding the oral contract was a sufficient predicate for a breach of contract claim and that Air Center had failed to disprove any element of that claim. See Blum v. Air Center Gwinnett, 201 Ga. App. 313 (411 SE2d 88) (1991). Appellant subsequently amended his complaint to add as a defendant RES Associates of Georgia, Ltd., (RES) which took over operation of the airport in 1991. Air Center entered into a consent judgment with appellant and the case went to trial as to RES only.

Evidence adduced at trial showed that in February 1979, Gwinnett County Airport Authority (the Authority) entered into a lease agreement with Roman Aviation to lease and operate the airport. This lease was amended several times and Air Center ultimately became the lessee and operator of the airport in late 1986. In April 1991, the Authority and RES entered into an agreement for RES to lease and operate the airport. At this same time, the Authority and RES executed another amendment to the lease agreement providing, inter alia, that Air Center would assign its lease to RES. RES and Air Center executed an Asset Purchase Agreement for RES to purchase certain assets used by Air Center in operating the airport. Paragraph l(k) of the Asset Purchase Agreement provided: “Except as to obligations of the Seller specifically assumed by the Buyer pursuant to the terms of this Agreement, it is agreed that the FBO Assets shall be sold, conveyed, transferred and assigned to the Buyer on the Closing Date free and clear of all liens, tax liens, charges, judgments, encumbrances, debts and liabilities, whatsoever, and that the Buyer does not assume, accept or undertake any obligations, duties, debts or liabilities of any kind whatsoever, including any asserted or unasserted claims, liabilities, or assessments, contingent or otherwise.” Paragraph 4 of the Agreement provided: “The Buyer shall assume the liabilities and obligations of the Seller under the Operating Agreements, Equipment Leases, Tenant Agreements, Parts Dealership and Fuel Dealership Agreements, the Fuel Servicing Agreements, the Work Orders and the additional liabilities and obligation of the Seller (‘Other Liabilities Assumed’), if any, specified in Exhibit N attached hereto (all of such Agreements and Work Orders and Other Liabilities Assumed are to be assumed by the Buyer only as of and with respect to periods following the Closing Date). The Buyer shall not assume any other liabilities or obligations of the Seller whatsoever.” (Emphasis supplied.)

Terry Britt, the general manager of RES, testified that the reference to tenant agreements in the Asset Purchase Agreement referred to active tenant agreements. He further testified that RES had been careful not to assume any outstanding liabilities of Air Center since Air Center had encountered financial difficulty in managing the airport. He also testified that none of the shareholders, officers, or directors of RES were shareholders, officers, or directors of Air Center. Appellant testified that he sold his airplane for scrap in 1988. He did not contend that he had a contract with RES and first became aware of its existence when he saw its name in documentation obtained by his counsel.

At the close of the evidence, both parties moved for a directed verdict. The trial court granted RES’s motion for directed verdict and denied appellant’s motion and appellant filed this appeal.

1. Appellant alleges the trial court erred in granting RES’s motion for directed verdict and in denying his own motion for directed verdict. Specifically, appellant argues that RES is liable to him because: (1) he has a claim for breach of contract against Air Center under the original lease to operate the airport and RES is a successor lessee under that lease and (2) RES entered into an asset purchase agreement with Air Center in which it assumed Air Center’s liabilities and obligations under the operating agreements and tenant agreements, which included Air Center’s responsibility to appellant for the damage suffered to his plane.

“A motion for directed verdict is to be granted only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict. OCGA § 9-11-50 (a).” (Citations and punctuation omitted.) Nottingham Co. v. Resource Materials Corp., 210 Ga. App. 128, 131 (3) (435 SE2d 447) (1993). “The evidence is construed most favorably to the nonmovant.” McDevitt & Street Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640, 644 (3) (418 SE2d 87) (1992).

“Generally, a purchasing corporation does not assume the liabilities of the seller unless: (1) there is an agreement to assume liabilities; (2) the transaction is, in fact, a merger; (3) the transaction is a fraudulent attempt to avoid liabilities; or (4) the purchaser is a mere continuation of the predecessor corporation.” (Citations omitted.) Howard v. APAC-Ga., 192 Ga. App. 49 (383 SE2d 617) (1989); see Carswell v. Nat. Exchange Bank of Augusta, 165 Ga. 351, 357 (140 SE 755) (1927) (where one corporation purchases assets of another, the duties and obligations are as set up in the contract between them).

Appellant’s claim that RES has assumed Air Center’s liability to him simply because it is a successor lessee under the lease to operate the airport is without merit. Appellant appears to. base this claim on the ground that he has a claim for breach of contract against Air Center under its lease to operate the airport and that RES is thus liable to him as the successor to that lease. However, we note that appellant claimed in his previous appeal that Air Center was liable to it because it allegedly breached its oral contract with him to store and secure his plane. See Blum, supra at 314. In any event, the evidence is undisputed that appellant was not a party to the original lease agreement or any of the amendments thereto and appellant points to no provision in the lease agreement RES executed with the Authority whereby it assumed any liabilities Air Center may have had to appellant. See Howard, supra.

Appellant’s claim that RES specifically assumed Air Center’s liabilities to him in the Asset Purchase Agreement it entered into with Air Center is equally without merit. Since appellant’s plane was removed from the airport in 1988, his oral tenant agreement with Air Center clearly ended three years before RES executed the Asset Purchase Agreement and took over operation of the airport. As set forth above, RES agreed in the Asset Purchase Agreement to assume Air Center’s liabilities and obligations under, inter alia, the operating agreements and tenant agreements “only as of and with respect to periods following the Closing Date,” i.e., the date on which RES took over as operator of the airport. It is clear from this language that RES was agreeing to assume Air Center’s liabilities and obligations under tenant agreements in existence on the date it took over operation of the airport. Such a construction is further confirmed by the general manager’s testimony that the reference to tenant agreements in the Asset Purchase Agreement referred to active tenant agreements. Thus, RES as the successor lessee under the lease was “assuming] [only] those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.” (Citations omitted.) Howard, supra at 51. Thus, because RES only agreed to assume Air Center’s obligations and liabilities under current tenant agreements as of the date it took over operation of the airport, RES did not assume any liabilities Air Center may have had to appellant under an oral tenant agreement which ended three years earlier. The trial court did not err in granting RES’s motion for directed verdict and denying appellant’s motion for same.

Decided December 2, 1993

Reconsideration denied December 20, 1993

George P. Graves, E. Graydon Shuford, for appellant.

Webb, Tanner & Powell, Andrew R. Mertz, Ralph L. Taylor III, for appellee.

2. In light of our holding in Division 1, we need not reach appellant’s remaining enumerations of error.

Judgment affirmed.

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


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

text:
    A93A1422.
    A93A1874.
    A93A1875.
    BUNCH v. MAYTAG CORPORATION. BUNCH v. BAUMANN. BUNCH v. MATHIESON DRIVE APARTMENTS, INC.
    (439 SE2d 676)
   Johnson, Judge.

This negligence and wrongful death action was filed by Sandra Bunch, the mother and administratrix of the estate of Starlyn Elizabeth Pettis. Pettis, a 31-year-old dance instructor, died of smoke inhalation, as a result of a fire in her apartment. It is undisputed that the fatal fire originated in the vicinity of the gas oven in the kitchen. This action was filed against Maytag Corporation, manufacturer of the oven; Mathieson Drive Apartments, Inc., owner of the apartment complex, and Curtis and Christopher Baumann d/b/a Baumann Home Appliance Center, who installed the oven. The trial court granted summary judgment in favor of all defendants.

Case No. A93A1422

1. Bunch asserts that the trial court erred in entering summary judgment because there is a genuine issue of material fact regarding whether Maytag was negligent in the design and construction of the oven.

There are two fundamental rules relating to the manufacturer’s duty in designing a product. First, the duty is one of reasonable care, and second, neither a manufacturer nor a seller is an insurer that his product is, from a design viewpoint, incapable of producing injury. If a product is designed so that it is reasonably safe for the use intended, the product is not defective even though capable of producing injury where the injury results from an obvious or patent peril. If the product functions properly for the use intended, if the injury results from no malfunction due to design of any portion of the product, and if the danger attendant to the use of the product is obvious or patent, then the product is not defective as a matter of law. Orkin Exterminating Co. v. Dawn Food Prods., 186 Ga. App. 201, 203 (3) (366 SE2d 792) (1988) citing Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 847-848 (321 SE2d 353) (1984).

In order to fulfill the most basic function of heating food, a traditional oven must contain a heating element, which, by its very nature, is capable of producing a dangerous condition. In this case, it is uncontroverted that the oven had been left on. Pettis, who had been out for the evening, was discovered unconscious in her apartment at 4:40 a.m. None of the four experts who were deposed in this case was able to pinpoint the cause of the fire. Roger Landers, the plaintiff’s expert, testified in the first of two depositions that there were at least four possible causes of the fire, improper fuse protection, a defective contact or igniter, clock motor failure or a ground fault in the wiring. After conducting additional testing, Landers was deposed a second time. He testified that the results of the additional testing were again inconclusive. Landers refused to say that even if the cause of the fire was related to a component in the oven, that it was the result of improper or defective design.

Bunch, therefore, has failed to present any evidence in support of her claim of negligence on the part of Maytag. The often cited Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), sets forth the standard for review of summary judgment: “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Id. at 491.

The trial court and Maytag correctly rely on another fire case, Tepper v. Marty’s, Inc., 139 Ga. App. 140 (228 SE2d 32) (1976), in which it was held that in a civil case, where a plaintiff seeks to carry its burden of proof by inference, that inference must not only tend in some proximate degree to establish the conclusion, but render less probable all inconsistent conclusions. Bunch’s own expert has not been able to rule out several possible causes of the fire which are unrelated to the design of the oven. Bunch has failed to establish negligence on the part of Maytag in the design and construction of the oven. No causal connection between the design and/or the construction of the instrumentality and the injuries suffered having been shown, summary judgment in favor of Maytag was correctly entered.

Case No. A93A1874

2. Bunch asserts that the trial court erred in entering summary judgment in favor of Curtis and Christopher Baumann d/b/a Baumann Home Appliance Center because genuine issues of material fact remain as to whether the Baumanns’ actions in installing the oven were the proximate cause of the fire.

The claim against Baumann is premised on the fact that the stove was installed without proper grounding. The oven was ¿quipped with a three-prong power cord with a grounding plug, but the wall outlet could accept only two prongs. While none of the experts in this case was able to definitively establish the cause of the fire, the one fact about which all four experts in the case agree is that the failure to ground the stove would not have caused the fire. Proximate cause is not ordinarily an appropriate matter for summary adjudication. However, “where plaintiffs rely on allegations and assumptions in the face of evidence to the contrary, summary judgment is proper.” Jones v. Campbell, 198 Ga. App. 83, 86 (2) (400 SE2d 364) (1990). The Baumann defendants have plainly and palpably demonstrated that the installation was not the proximate cause of the fire. See Scoggins v. APAC-Ga., 193 Ga. App. 465, 466 (388 SE2d 58) (1989). The trial court did not err in granting summary judgment to the Baumann defendants.

Case No. A93A1875

3. Bunch claims that there is a genuine issue of material fact regarding whether Mathieson’s actions in installing or maintaining the oven were the proximate cause of the fire which killed Pettis. Bunch’s argument focuses only on Mathieson’s approval of the installation of the oven without rewiring the outlet or insisting on other grounding. Bunch has failed to point to anything in the record which would indicate that Mathieson failed to perform any necessary routine maintenance on the oven or which would suggest that such routine maintenance could have exposed a problem which should have been corrected. Further this portion of her enumeration of error is unsupported by argument or citation to authority and therefore we deem it abandoned. Court of Appeals Rule 15 (c) (2).

“In order to recover, a tenant is required to show not only that the landlord breached his statutory duty to keep the premises in repair, but that such breach was the proximate cause of the injury. Absent such cause-effect connection, plaintiff’s action would be lacking one essential element.” (Citations and punctuation omitted.) Jones v. Campbell, supra at 86 (2). In light of our holding in Division 2 above, that there is no evidence which would support a theory that the failure to ground the oven was the proximate cause of the fire, Bunch’s claim against Mathieson must also fail.

Judgments affirmed.

In Case Nos. A93A1874 and A93A1875, Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Blackburn and Smith, JJ., concur. In Case No. A93A1422, Birdsong, P. J., Andrews and Smith, JJ., concur. Beasley, P. J., concurs specially. Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., dissent.

Beasley, Presiding Judge,

concurring specially.

I concur fully in the opinions in Case Nos. A93A1874 and A93A1875.1 concur in the opinion in Case No. A93A1422 but, considering that the dissent is based on the absence of a certain fuse, believe it necessary to explain why plaintiff cannot prevail upon this theory.

Plaintiff’s expert testified that the exact cause of the fire could not be detected because of the fire damage. In his opinion, it was either a ground fault or a component failure. A ground fault would not have been attributable to Maytag because it did not install the oven unit, as acknowledged by the expert in his affidavit. A component failure would have been due to a defective component, he said. But he could only say that it was possible, not even probable, that there was a component failure.

Thus, the alleged negligence is that Maytag failed to include a fuse which would prevent a fire from a ground fault or a component failure. There had been a fuse in the design earlier. Plaintiff’s expert was of the opinion that if such a fuse had been included, but at a different location than originally in the design, it would have protected the entire circuitry from all faults, including a component failure. This was nothing more than hindsight. As he said, “It would have been better if that fuse was still there, and it would have been better if that fuse had been placed in a different place in the circuit.”

The key is that he was not of the opinion that the absence of the fuse was an improper design. He said so twice.

On this evidence, a jury would be precluded from finding negligence on the part of the manufacturer.

McMurray, Presiding Judge,

dissenting.

I agree with the majority’s holdings as to Case Nos. A93A1874 and A93A1875, and concur fully as to all said therein as to Case Nos. A93A1874 and A93A1875. However, in my view there is some evidence that the fire was caused by a defect in the design of the oven. Therefore, I respectfully dissent to the affirmance of summary judgment in favor of defendant Maytag Corporation in Case No. A93A1422.

Plaintiff’s expert opined that the fire began in the control panel of the oven and that only two possible causes could have started a fire there, either a ground fault or failure of a component. He also testified that retention of a fuse removed from the design shortly prior to the manufacture of the oven in question would have prevented a fire caused by a ground fault and that a better placement of that same fuse in the design could have protected the entire circuit from any type of electrical fault at no additional cost. The plaintiff’s expert also stated that: “If there are ways that the appliance can fail, cause a fire, with drawing less than the 20 ampere fuse protection [which was provided by the building’s electrical system in this case], then it would be the responsibility of the appliance manufacturer to build in the protection for that. ...” Although the plaintiff’s expert did not invade the province of the jury by offering an opinion as to the ultimate issue, the facts provided were sufficient, in my view, to permit a jury to conclude that omission of such a fuse was a design flaw which caused Pettis’ death. “It is the established rule in Georgia, that where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony.” Sullivan v. Quisc, Inc., 207 Ga. App. 114 (427 SE2d 86). It is within the capacity of the average lay person (juror) to consider the testimony of the experts and determine whether the omission of a fuse was a defect. See also Westinghouse Elec. Corp. v. Williams, 173 Ga. App. 118, 121 (3), 122 (325 SE2d 460).

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

Decided November 23, 1993

Reconsideration denied December 20, 1993

Gambrell & Stolz, Irwin W. Stolz, Jr., Gary A. Barnes, Seaton D. Purdom, for Bunch.

Alston & Bird, Russell W. Thorpe, Cynthia Counts, for Maytag Corporation.

Drew, Eckl & Farnham, Elizabeth Helm, Hall F. McKinley III, R. Harold McCard, Jr., for Baumann.

Swift, Currie, McGhee & Hiers, David R. Hughes, Stephen L. Cotter, Dennis A. Brown, for Mathieson Drive Apartments.

       Appellant did not bifurcate her argument because no specific argument relating to negligent construction has been raised or identified by the experts. We deem that portion of the enumeration waived.


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A1535.
    EASTLAWN CORPORATION v. BANKERS EQUIPMENT LEASING COMPANY.
    (439 SE2d 753)
   Smith, Judge.

We granted Eastlawn’s application for discretionary appeal to consider the denial of its motion to set aside a foreign judgment domesticated in this state under the Uniform Enforcement of Foreign Judgments Law, OCGA § 9-12-130 et seq., based on Eastlawn’s limited contacts with the foreign jurisdiction.

Eastlawn is a Georgia corporation with its principal place of business in McDonough, Georgia. Its primary business is the management of a cemetery there. Appellee Bankers Equipment is incorporated in Arizona, and its primary business is the leasing of computer equipment to cemetery management entities. In October 1987, Clifford Hornsby, individually and as secretary-treasurer of Eastlawn, executed in Georgia and mailed to Arizona a lease for computer equipment with Bankers Equipment, which was accepted that same month. The items subject to the lease included computer hardware from various manufacturers and software designed for use in cemetery management from another Arizona corporation, CSII, Inc., which was not a party to the Arizona action.

It was Eastlawn’s prior business dealings with CSII in Georgia and in Florida that ultimately led to its lease agreement with Bankers Equipment. Hornsby first met representatives of CSII at a convention in Florida in July 1987. In August of that year, the president of CSII visited Hornsby in McDonough and negotiated an agreement for Eastlawn to “purchase a computer system.” In September, a representative of Bankers Equipment contacted Hornsby by an unsolicited telephone call placed into Georgia regarding Eastlawn’s contract with CSII. During this conversation, the representative solicited and negotiated the lease agreement with Eastlawn underlying the judgment now in dispute.

In early October, Hornsby’s daughter, who was an employee of Eastlawn, and Hornsby’s then wife, whose status with Eastlawn at that time is disputed, traveled to Arizona in order to receive computer training at CSII. This contact was made after Eastlawn had entered into an agreement with CSII, but prior to executing the agreement with Bankers Equipment. The two remained in Arizona from October 5 through October 10, 1987. There is no suggestion in the record that Eastlawn representatives in Arizona conducted any new business with CSII, or had any contact at all with Bankers Equipment during that week. Clifford Hornsby, who remained in Georgia during that week, executed the lease agreement with Bankers Equipment on October 9 in his individual capacity and as an officer of Eastlawn, and he mailed the agreement back to Arizona at that time. Bankers Equipment accepted the agreement on October 20, 1987. Bankers Equipment shipped the computer equipment FOB from Arizona, and Eastlawn paid the shipping charges.

The lease terms required Eastlawn to make payments to Bankers Equipment for a period of 60 months and included the following provision: “This agreement shall be deemed to have been made and executed in Maricopa County, Arizona, regardless of the order in which the signatures of the parties shall be affixed hereto, and shall be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws of the State of Arizona.”

Early in the following year, Hornsby took the equipment leased from Bankers Equipment to CSII in Arizona, either to correct problems or to learn how to use the software. Finally, Bankers Equipment points out that Eastlawn made contact with it by telephone and by mail during the period in question.

Eastlawn defaulted on the lease in February 1989. In June of that year, Bankers Equipment filed a complaint against Eastlawn in Maricopa County, Arizona, and Eastlawn was served pursuant to Arizona’s long-arm statute. Hornsby admitted that Eastlawn received service and confirmed that no appearance was made on its behalf. A default judgment was entered in that action on November 29,1989. The judgment, prepared by an attorney for Bankers Equipment, included the following finding: “It is found that [Eastlawn] is a corporation doing business in [Arizona] and has caused an event to occur in [Arizona] out of which the claim which is the subject of the complaint herein arose. It is therefore found that this court has personal jurisdiction over [Eastlawn].” Bankers Equipment domesticated the Arizona judgment in the Superior Court of Henry County in January 1990. Eastlawn later moved to set aside the domesticated judgment under OCGA § 9-11-60 (d) (1), asserting that the Arizona court rendering it lacked personal jurisdiction over Eastlawn. See OCGA § 9-12-132.

In its order denying Eastlawn’s motion, the court noted the choice of law provision in the lease agreement and Hornsby’s characterization of it as “language for ‘lawyers.’ ” The court observed that Eastlawn “ ‘purposely’ consummated a lease submitting itself to the laws of Arizona, and said lease contemplated a continuing relationship for 60 months with an Arizona corporation.” The court also noted Eastlawn’s contacts with CSII and the presence of its employees and officers in Arizona on two separate occasions as a result of those contacts. The trial court found “that Eastlawn had ‘fair warning’ of the possibility of being haled into Arizona for its dealings with Bankers Equipment. . . , and that to do so does not offend notions of fair play and substantial justice.” Eastlawn timely appealed following the grant of its application for discretionary review.

Eastlawn enumerates as error the court’s finding that Hornsby’s former wife was an officer of Eastlawn when she and her daughter traveled to Arizona for training, and the failure of the trial court to apply Arizona law. However, we need not decide those issues. Based upon the facts and mode of analysis urged by Bankers Equipment, we find that the Arizona court lacked personal jurisdiction over Eastlawn and reverse.

“Under the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by the courts of this state. However, that judgment may be collaterally attacked where the foreign court lacked jurisdiction of the person. ...” Gordon v. Gordon, 237 Ga. 171 (227 SE2d 53) (1976). “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ [Cit.]” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 471-472 (105 SC 2174, 85 LE2d 528) (1985). “[T]he constitutional touchstone [is] whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Id. at 474. “ ‘[T]he foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ [Cit.]” Id.

With these basic principles in mind, we first consider whether Eastlawn has done some act or consummated a transaction to avail itself of the law of Arizona. See Klein v. Allstate Ins. Co., 202 Ga. App. 188, 190 (2) (413 SE2d 777) (1991), aff’d 262 Ga. 599 (422 SE2d 863) (1992). To some extent, the facts of this case are quite analogous to those found insufficient to establish meaningful contacts with the forum in Signet Bank/Virginia v. Tillis, 196 Ga. App. 433 (396 SE2d 54) (1990). The undisputed facts show that Bankers Equipment first contacted Eastlawn by way of an unsolicited telephone call placed into Georgia and that during that telephone call a lease agreement was negotiated. The lease agreement was mailed to Eastlawn in Georgia, where Hornsby executed it. The equipment was shipped from Arizona, and Hornsby paid for the shipping. Clifford Hornsby was the sole negotiator for Eastlawn of the agreements with CSII and with Bankers Equipment, and all such negotiations were conducted and agreements entered by him without ever leaving the State of Georgia. It is undisputed that Hornsby’s visit to Arizona the next year was remedial in nature — an unanticipated attempt by Eastlawn to receive the benefit of bargains already made with CSII and with Bankers Equipment. As in Signet, there is no indication that Eastlawn and Bankers Equipment contemplated that they need ever meet. Likewise as in Signet, there is no indication that the equipment was leased for productive use anywhere other than Georgia.

On the other hand, Bankers Equipment shows that the lease agreement includes a choice of law provision establishing that Arizona law would be applied and that the contract would be “deemed” to have been executed there. However, this provision is in itself insufficient to confer jurisdiction. Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 894-895 (1) (380 SE2d 303) (1989); Burger King, supra at 482. It is no more than a factor to be considered in light of Eastlawn’s other contacts with Arizona. In this regard, we note that personal jurisdiction does not turn on “ ‘conceptualista . . . theories of the place of contracting or of performance’ ” alone. Id. at 478. Instead, Burger King shows we should favor a “highly realistic” approach recognizing that a “ ‘contract’ is ‘ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.’ [Cit.]” Id. at 479.

Bankers Equipment also relies on the visits by Eastlawn officers and employees to CSII in Arizona before and after the lease agreement was executed. Neither visit was in any way connected to the lease agreement with Bankers Equipment, and no business was conducted with Bankers Equipment as a result of those visits. The purpose of Eastlawn’s first visit to CSII was to receive training on its software, and the second, to address problems Eastlawn experienced in trying to make use of the leased equipment. We note, however, that the lease agreement itself disclaims all warranties regarding condition, merchantability, and fitness for any particular purpose; that Eastlawn leased the equipment “as is”; and that under the agreement, payments to Bankers Equipment would be due regardless of any complaint Eastlawn may have had with CSII due to the installation or operation of the equipment in Georgia. It is undisputed that Eastlawn’s visits to Arizona concerned themselves only with the ability to operate and make use of CSII’s software, and not Eastlawn’s obligations to Bankers Equipment. Furthermore, the contract makes clear that, at the very least, Bankers Equipment sought to ensure that Eastlawn’s obligations to it under the lease were not dependent upon the usefulness or condition of the equipment acquired from CSII. See generally Third Century v. Morgan, 187 Ga. App. 718 (371 SE2d 262) (1988).

We find that Eastlawn’s visits to CSII in Arizona clearly did not have any realistic connection with Bankers Equipment. Moreover, Bankers Equipment’s position seems to suggest that Eastlawn was required to avoid visits to Arizona intended to resolve problems and address training issues with respect to CSII’s software in order to “ ‘alleviate the risk of burdensome litigation’ there. [Cit.]” Burger King, supra at 475, n. 17. We find little to merit such a view.

It cannot be said that the Arizona court’s exercise of jurisdiction over Eastlawn is reasonable under the circumstances presented — that “fair warning” of due process has been given by Eastlawn’s prior contacts with the forum. Klein, supra. The court therefore erred in denying Eastlawn’s motion to set aside the void judgment for lack of jurisdiction. See generally Signet Bank/Virginia v. Tillis, supra.

Judgment reversed.

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

Beasley, Presiding Judge,

dissenting.

The trial court did not err by honoring the Arizona judgment. In this instance, the law does not require plaintiff Bankers Equipment to enforce its contract by a contract action in Georgia. This court has drawn too narrowly the picture of the transaction involved here, which in its composite involved three parties. The issue below was whether the Arizona court had personal jurisdiction over the Georgia corporation.

1. Before addressing that issue, a procedural point should be made because the majority cites Signet Bank/Virginia v. Tillis, 196 Ga. App. 433 (396 SE2d 54) (1990). There, the challenge to the foreign court’s lack of personal jurisdiction was asserted in a defensive “answer” to the domestication filing, thus purportedly treating the domestication as an entirely new action in the Georgia court. This was improper procedure. “The Uniform Enforcement of Foreign Judgments Law is a summary procedure for endowing a filed foreign judgment with the ‘same effect’ as a judgment of the court in which it is filed.” Hammette v. Eickemeyer, 203 Ga. App. 243 (416 SE2d 824) (1992). Any litigation ensuing is limited to that which is afforded any other Georgia judgment. OCGA § 9-12-132. The course followed in Signet Bank is “inconsistent with the summary nature of the uniform law and the purpose of the law, which is to expedite the recognition and enforcement of foreign judgments.” Id. at 244.

The train in Signet Bank left the track and traveled erroneously to a motion for summary judgment, which is obviously not available after there is a judgment. Summary judgment is authorized only when seeking recovery on a claim, counterclaim, cross-claim or a declaratory judgment. OCGA § 9-11-56 (a). As said in Sanders v. S. D. Leasing, 189 Ga. App. 409, 410 (376 SE2d 420) (1988), “unless a judgment is void on its face [so as to be subject to collateral attack pursuant to OCGA § 9-11-60 (a)], it must be attacked by direct proceeding by motion for new trial or motion to set aside. . . .” Until the complaint in equity was discontinued, OCGA § 9-11-60 (e), it was a method for direct attack. See Logan v. Nunnelly, 128 Ga. App. 43, 46 (195 SE2d 659) (1973). Now only OCGA § 9-11-60 (b) is available to remedy a voidable domesticated judgment.

Because the parties and the trial court, as well as this court, treated the domestication in Signet Bank as a new action, this court erroneously reached the issue of the foreign court’s jurisdiction over defendant Tillis. As was done in Sanders, this court should have ruled that Tillis failed to attack the domesticated judgment properly and thus ended its analysis. The federal full faith and credit clause, (United States Constitution, Art. IV, Sec. I), and the Uniform Enforcement of Foreign Judgments Law which implements it, are frustrated where two successive suits, in two different states, are allowed; one is deemed sufficient. The judgment debtor’s state must either enforce the judgment as a judgment or, for some legal reason, refuse to do so. It is not to conduct a second lawsuit proceeding on the foreign judgment.

Eastlawn pursued the proper method for challenging jurisdiction by attacking the foreign judgment through a motion to set it aside. OCGA § 9-11-60 (b).

2. Eastlawn enumerates as error that the order below is fatally flawed because it is based on an erroneous finding of fact.

In assessing Eastlawn’s contacts with the State of Arizona, the court found that Sue Hornsby (then wife of Eastlawn’s secretary-treasurer) was in Arizona for Eastlawn with respect to the lease equipment at a time when she was an officer of the corporation. The evidence actually showed that Ms. Hornsby was an officer of the corporation for a short time in the year after her visit to Arizona. However, she made the trip at the request of Eastlawn’s officer to accompany its employee for training on the CSII equipment, and the corporation paid at least some expenses for their trip. Whether or not Ms. Hornsby was an officer at the time of her visit is not significant as she was clearly acting as agent of the corporation. The misstatement of fact is not fatal to the trial court’s conclusions.

3. The domesticated judgment is presumed binding and the foreign court’s jurisdiction is presumed unless and until it is proved otherwise; the burden is on the party asserting invalidity to show it. Patterson v. Patterson, 208 Ga. 7, 10, 11 (64 SE2d 441) (1951); Logan v. Nunnelly, supra at 45. In Patterson, it was clearly stated: “The trial court in this case was under a duty to accord prima facie validity to the [foreign] decree. . . .” The same duty rested here.

Eastlawn’s first enumeration of error is that the court below failed to apply Arizona law. Since it is the Arizona judgment which is being challenged for lack of personal jurisdiction, it should be measured first by Arizona’s jurisdictional standards. However, Eastlawn did not raise the ground of non-adherence to Arizona law in its motion to set aside nor in its memorandum in support of the motion. It relied solely on the Due Process Clause of the United States Constitution and case law applying it to long-arm jurisdiction. It raised the ground in oral argument, apparently in response to the statement of Bankers Equipment (in its memorandum opposing the motion) that Arizona law applied and was shown on the Arizona judgment to have been proven and applied. However, Eastlawn did not obtain a ruling on this ground. The trial court ruled only on the federal constitutional question and concluded that federal due process was complied with. Whether the Arizona court’s jurisdiction over Eastlawn comported with Arizona law is not before us, not having been both raised and ruled on below. Thomas v. State, 203 Ga. App. 529, 530 (1) (417 SE2d 353) (1992), and cases cited therein.

4. The final enumeration, which gets to the heart of the matter and the point of dissent, is that jurisdiction was not satisfied under the Due Process Clause of the United States Constitution.

“[T]he constitutional touchstone [is] whether the defendant purposefully established ‘minimum contacts’ in the forum State . . . ‘[that is, whether] the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ [Cit.]” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474 (105 SC 2174, 85 LE2d 528) (1985). In making this determination, we must evaluate prior negotiations, contemplated future consequences, the terms of the contract, and the parties’ actual course of dealing. Id. at 479.

Eastlawn’s secretary-treasurer, Clifford Hornsby, initiated contact with CSII, an Arizona corporation which supplies computer software to the cemetery business. He did so at a business convention in Florida when he “filled out a card authorizing CSII representatives to come to Eastlawn Memorial Gardens.” Hornsby, on behalf of Eastlawn, subsequently decided he wanted the CSII products for its operation in Georgia.

Acting both on behalf of Eastlawn and in his individual capacity, he entered into a 60-month lease for the computer equipment, which consisted of CSII’s software plus various computer hardware, with appellee Bankers Equipment, another Arizona corporation. This was by choice, as there is no evidence or contention that Bankers Equipment was the only potential lessor. The lease culminated the negotiations and caused Bankers Equipment to purchase in excess of $26,000 worth of computer equipment selected by Eastlawn for its benefit and use from an Arizona vendor chosen by Eastlawn. CSII was the vendor for all of it. By the lease, Eastlawn prompted the Arizona leasing company to pay the Arizona vendor (“we approve payment by you to the vendor”). It agreed to lease the equipment from the Arizona company, and it agreed to make monthly payments to the Arizona company for five years with the right to purchase it if it so chose.

Sue and Wendy Hornsby went to Arizona as Eastlawn’s agents for a week (Monday to Saturday) at the corporation’s expense for the latter to receive computer training at CSII. During this period Clifford Hornsby signed the lease. He also spent a week at CSII in Arizona later to receive computer training and resolve problems with the use of the computer. Eastlawn also caused the CSII technician to travel to Georgia to train another employee on the equipment. Eastlawn mailed monthly payments to Bankers Equipment in Arizona for over a year and then defaulted by discontinuing them.

Significantly, the lease also contained a provision under which the agreement is “deemed to have been made and executed in Maricopa County, Arizona,” and a choice of law provision that the agreement “shall be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws of the State of Arizona.”

Eastlawn knowingly entered into a contract not only with a choice of law provision, agreeing to be bound by Arizona law. It also agreed that for the purpose of the construction and enforcement of the contract, it was made and executed in Arizona as a matter of fact. This is much more than merely contracting with an out-of-state party, which alone does not establish minimum contacts for federal constitutional purposes. Burger King Corp. v. Rudzewicz, supra at 479.

Eastlawn’s connections with the State of Arizona involving the subject of the contract were such that it should reasonably be expected to appear there to defend an action based on the alleged failure to perform its contractual obligations. Considering all the relevant factors designated in Burger King, the action in Arizona met the minimal contacts requirement for personal jurisdiction. In Signet Bank, supra, the only contact was the mailing of an application for a credit card and subsequent payments to the forum state. There was not, for example, an express provision in the contract designating the foreign state as the place of making.

The Arizona court’s jurisdiction over appellant did not oifend the Fourteenth Amendment due process clause and thus its judgment is entitled to full faith and credit. OCGA § 9-12-131. The trial court properly refused to set aside the domesticated judgment.

Decided December 3, 1993

Reconsideration denied December 20, 1993

Chambers, Chambers & Chambers, Timothy D. Chambers, for appellant.

Crumbley & Crumbley, James T. Chafin III, for appellee.

I am authorized to state that Judge Blackburn joins in this dissent.


author: Beasley, Presiding Judge. Cooper, Judge,

text:
    A93A1537.
    MOON v. THE STATE.
    (439 SE2d 714)
   Beasley, Presiding Judge.

In a bench trial, appellant was found guilty of driving without a license, driving without insurance, and driving under the influence of alcohol in violation of OCGA § 40-6-391 (a). His motion for new trial was denied.

The sole witness at trial was a Georgia State Patrol trooper. He testified that at approximately 11:20 on Christmas night 1992, he received a radio call about a single-car accident on Highway 156. When the trooper arrived at the scene, he found a blue Ford pickup truck in a ditch on the south side of the road, but there was no one in the car. He did find some papers in the truck with appellant’s name, and an empty wine bottle was found next to the driver’s seat.

The officer had gotten a description from the police dispatcher of the driver, which had been given by a witness to the accident. Accordingly, the officer immediately started looking, in the direction towards which he understood the person had started walking, for a white six-foot slim male, in his early thirties, wearing black pants and a black shirt. He did not find him along the road so he went back. After talking to a man at the house closest to the accident, he went to the scene and found defendant, who was in the back seat of a car which had arrived in the interim. He fit the description, was intoxicated, admitted he had been driving, and never said he was not intoxicated when he was driving. Instead, he said, “you didn’t see me driving, and I’m not taking no test.” In the trooper’s opinion, appellant was less safe to drive as a result of his state of intoxication.

1. Appellant enumerates as error the trial court’s admission of his statement that he had been driving the truck, on the ground that the trooper did not read his Miranda rights. Appellant made the incriminating statement in response to the trooper’s question regarding whether appellant would take a breath test. The admission of the statement was not error, because the question was not reasonably likely to elicit the incriminating response from appellant. See Williams v. State, 178 Ga. App. 581 (10) (344 SE2d 247) (1986).

2. In two enumerations of error, appellant contends that the State failed to prove that he had been in control of a motor vehicle and that he was intoxicated at the time that he was in control of a motor vehicle. “A conviction for driving or being in actual physical control of a moving vehicle while under the influence of intoxicants may be based on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. [Cits.]” Melendy v. State, 202 Ga. App. 638 (1) (415 SE2d 62) (1992).

There is evidence that appellant was driving the car, based on his admission that he was driving. There is also evidence that appellant was intoxicated at the time he encountered the trooper around 11:30 p.m. It is a reasonable inference that a short time passed between the time defendant drove the pickup truck into the ditch and the time the officer found the defendant in the condition described above, given the events. It is also a reasonable inference that defendant did not acquire that condition in the time between his leaving the truck and his return. See Stephens v. State, 127 Ga. App. 416 (193 SE2d 870) (1972) (officer observed defendant forty-five minutes after accident and blood sample taken approximately one hour after accident).

Judgment affirmed.

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

Cooper, Judge,

dissenting.

I dissent because I disagree with the majority’s conclusion that the evidence permits the inference that appellant was driving while intoxicated. There is evidence that appellant was driving the car based on his admission. There is also evidence that appellant was intoxicated at the time that he encountered the trooper at approximately 11:30 p.m. However, there is no evidence as to what time the truck ran into the ditch, how long the truck had been there when the trooper was dispatched to the scene or the time span over which appellant consumed alcohol. Upon arriving at the scene, the trooper did not ascertain whether the engine of the car was warm and stated that he only guessed that the truck had veered into the ditch a short time earlier. In my opinion this evidence is insufficient as a matter of law to authorize the inference that appellant was driving while intoxicated. Groom v. State, 187 Ga. App. 398 (2) (370 SE2d 643) (1988); Wilcher v. State, 124 Ga. App. 534 (184 SE2d 505) (1971). The majority also draws an unfavorable inference from the fact that appellant failed to state that he was not intoxicated while driving. This seems to be an impermissible inference arising from appellant’s absolute right to remain silent. See Howard v. State, 237 Ga. 471, 474 (228 SE2d 860) (1976). Because I believe that appellant’s conviction for driving under the influence was not supported by the evidence, I respectfully dissent.

Decided December 2, 1993

Reconsideration denied December 20, 1993.

Chance, Maddox & Smith, David K. Smith, for appellant.

Thomas J. Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

I am authorized to state that Judge Blackburn joins in this dissent.


author:
Blackburn, Judge.
      McMurray, Presiding Judge,

text:
    A93A1549.
    MARTIN v. THE STATE.
    (440 SE2d 24)
   Blackburn, Judge.

The appellant, Tony Martin, pleaded guilty to charges of driving under the influence, driving with a suspended license, and driving without proof of insurance, conditioned upon his right to appeal the denial of a motion to suppress the results of an intoximeter test. See Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991). On appeal, Martin contends that the results of the intoximeter test should have been excluded because the arresting officer did not advise him of his implied consent rights at the time of his arrest.

The record shows that on the day of Martin’s arrest, an employee of a convenience store called the police to report an unidentified woman offering sex for money in the store’s parking lot. When the prostitute entered Martin’s van, the employee had asked them to leave. The arresting officer arrived in time to observe Martin pull out of the parking lot, drive down one street, and make a right turn onto another street. The officer stopped Martin’s vehicle for failing to signal a right turn.

Upon being stopped, Martin admitted that his driver’s license was suspended and that he had no insurance. The officer then placed Martin under arrest for a probable DUI offense, along with the offenses of driving without a license and without proof of insurance. The officer did not read Martin his implied consent warning then, because she did not have her new implied consent warning card with her at the time. However, she immediately transported Martin to a nearby police station, which took approximately five minutes, and there read him the implied consent warning within five minutes of their arrival.

OCGA § 40-6-392 (a) (4) requires an arresting officer to advise an accused of the implied consent rights at the time of arrest. “Under ordinary circumstances, where [the implied consent warning] is not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant, the results of the state-administered test will not be admissible at trial to show that the accused was driving under the influence of alcohol or drugs.” (Emphasis supplied.) Perano v. State, 250 Ga. 704, 708 (300 SE2d 668) (1983).

Previously, this court has concluded that a fracas between the defendant and the arresting officer at the time of arrest presented a circumstance that justified waiting until the defendant was transported to a hospital before giving the implied consent warning. Perano v. State, 167 Ga. App. 560 (1) (307 SE2d 64) (1983). However, we have held that an officer’s failure to give the warning until the accused was transported to the police station, simply because that was the department’s standard practice, did not constitute a circumstance authorizing a delay. Vandiver v. State, 207 Ga. App. 836 (429 SE2d 318) (1993).

The instant case does not involve a confrontation between the defendant and the arresting officer, nor does it involve a situation where the implied consent warning was delayed merely as a matter of convenience for the police. Rather, the arresting officer did not read the implied consent warning to the defendant literally at the time of arrest, because she did not have her new implied consent card with her and thus could not do so. However, she immediately transported him to a nearby police station for that purpose, and there read him the warning prior to administering the intoximeter test. It took only five minutes to drive the defendant to the station, and the test was administered within five minutes of their arrival. In short, approximately ten minutes passed from the time of Martin’s arrest to the arresting officer’s giving the required implied consent warning.

It thus appears that the arresting officer acted to advise Martin of his implied consent rights in as accurate, timely, and practical a manner as dictated by the circumstances. The arresting officer’s actions sufficiently complied with OCGA § 40-6-392 (a) (4), and the trial court did not err in denying the defendant’s motion to suppress.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that this court is bound by Perano v. State, 250 Ga. 704, 708 (300 SE2d 668), where the Supreme Court “construed OCGA § 40-6-392 (a) (4) narrowly, to mean almost literally what it said, [i.e., the officer is required to inform a defendant at the time of arrest of his rights to an independent chemical analysis to determine the amount of alcohol or drugs present in his blood.]” Vandiver v. State, 207 Ga. App. 836, 837 (1) (429 SE2d 318).

OCGA § 40-6-392 (a) (4) provides, in pertinent part, that “[t]he arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.” “ ‘[T]his (directive) cannot be interpreted to mean sometime in the future. One cannot make an intelligent choice to submit to a chemical test without the knowledge of the right to have an independent test made in order to contest the validity of the state’s test.’ [Garrett v. Department of Public Safety, 237 Ga. 413 (2), 415 (228 SE2d 812).] The legislature has recognized that, in most instances, the only time at which this advice will be meaningful is at the time of physical arrest. [Only] certain limited situations . . . exist where advising the accused at the moment of physical arrest would not enable the accused to make an intelligent choice concerning the state’s request and his right to undergo an independent test.” Perano v. State, 250 Ga. 704, 707, supra.

The evidence in the case sub judice shows that the scene of the arrest was calm and orderly and that defendant was calm and cooperative, complying with the arresting officer’s directions. Further, the arresting officer testified that she did not advise defendant of his right to an independent test at the time of arrest because “she did not have the new Implied Consent Warning card with her at the time.” Finally, defendant was not advised of his right to an independent test until after he was restrained at police headquarters and ready to ventilate the State’s intoximeter machine. It is my view, that these facts do not present one of the limited circumstances where advising a defendant at the moment of physical arrest would not enable him to make an intelligent choice concerning the State’s request for a breath test and defendant’s right to undergo an independent test. See Perano v. State, 250 Ga. 704, 707, supra. On the contrary, it is my view that the arresting officer’s reason for not advising defendant of his right to an independent test as required by OCGA § 40-6-392 (a) (4) is inexcusable; that the delay in advising defendant of his right to an independent test impaired defendant’s ability to make an informed choice regarding submission to a State-administered breath test and that the results of any independent test defendant may have elected would have been diminished by the time any such test was given, thus impairing the only reliable means defendant had of challenging the State-administered breath test. See Hopper v. State, 175 Ga. App. 358 (1), 360 (333 SE2d 201).

Decided November 2, 1993

Reconsideration denied December 10, 1993

Reconsideration dismissed December 20, 1993

A. Blair Dorminey, for appellant.

Paul L. Howard, Jr., Solicitor, Deborah W. Espy, Oliver C. Murray, Jr., Assistant Solicitors, for appellee.

I am authorized to state that Judge Cooper joins in this dissent.


text:
    A93A1569.
    UNIVERSITY OF IOWA PRESS v. URREA et al.
    (440 SE2d 203)
   Cooper, Judge.

We granted this interlocutory appeal from the trial court’s denial of appellant’s motion to dismiss alleging lack of personal jurisdiction and sovereign immunity.

Appellant, the University of Iowa Press, contracted with Starkley Flythe, a Georgia resident, to publish and market a book of fictional short stories written by Flythe entitled “Lent: The Slow Fast.” Appellees Barbara Urrea and Susan Petro brought suit in Fulton County Superior Court against appellant and Flythe alleging a cause of action for invasion of privacy because a story in the book contained confidential information about them which was used without their permission. The complaint alleged that Urrea and Flythe had known each other prior to 1982 when they were employed by the Saturday Evening Post and that Flythe had written his book sometime before 1990. The record does not otherwise reveal when or where the book was written. Petro is currently a resident of Georgia and Urrea is a resident of Colorado. Appellant is a division of the University of Iowa which is an arm of the State of Iowa.

Appellant’s director testified by affidavit that appellant does not regularly do or solicit business in Georgia, engage in a persistent course of conduct in Georgia, or derive substantial revenue from goods used or consumed in Georgia. He testified that appellant sold only 438 copies of Flythe’s book to purchasers in Georgia, half of which were sold to Flythe, and that revenues from such sales were insignificant. He further testified that appellant does not have a sales representative in Georgia.

Appellees produced evidence that various bookstores in Georgia have sold copies of Flythe’s book and, upon request from a customer, will order the book from appellant by mail or use of a toll-free telephone number. This evidence further established that the two primary book distributors in Atlanta do not distribute books for appellant. Various bookstores and libraries in the Atlanta area carry other publications by appellant. These bookstores and libraries order their publications from appellant either by mail or the toll-free number.

Appellant filed a motion to dismiss alleging the trial court lacked personal jurisdiction over it and that as a matter of comity the court should recognize appellant’s sovereign immunity which had been waived under its Tort Claims Act only to the extent it could be sued in its own courts. See Iowa Code § 25A.4. The trial court denied the motion, and appellant filed this interlocutory appeal.

1. Appellant argues the trial court erred in finding it had sufficient contacts with the State of Georgia to subject it to jurisdiction under the Georgia Long-Arm Statute, OCGA § 9-10-91. Section 9-10-91 provides in pertinent part that Georgia courts may exercise jurisdiction over any nonresident who: “(3) [cjommits a tortious injury in [the] state caused by an act or omission outside this state if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in [the] state.” Appellant has clearly sold other works published by it to bookstores in Georgia. Moreover, appellant has sold 438 copies of the book in question in Georgia and has clearly placed it directly into the stream of commerce in Georgia. “In our opinion, this systematic and purposeful activity establishes that [appellant] ‘engages in a persistent course of conduct, or derives substantial revenue from goods used or consumed ... in this state.’ OCGA § 9-10-91 (3). The sale of goods in another state, knowing that they will be resold in Georgia, is a purposeful activity sufficient to establish a ‘contact’ with Georgia. See Shellenberger v. Tanner, 138 Ga. App. 399, 412 (227 SE2d 266) (1976).” Showa Denko v. Pangle, 202 Ga. App. 245 (1) (414 SE2d658) (1991); see also Continental Research Corp. v. Reeves, 204 Ga. App. 120, 124 (1) (419 SE2d 48) (1992). Accordingly, we conclude there was a proper basis for the exercise of jurisdiction pursuant to OCGA § 9-10-91.

2. Notwithstanding the existence of jurisdiction, we conclude the trial court erred in refusing to grant immunity to appellant on the basis of comity. The United States Supreme Court has held that although the full faith and credit clause does not require a forum state to recognize the sovereign immunity of another state, the forum may recognize another state’s sovereign immunity as a matter of comity. Nevada v. Hall, 440 U. S. 410 (99 SC 1182, 59 LE2d 416) (1979). “Comity is a principle under which the courts of one state give effect to the laws of another state or extend immunity to a sister sovereign not as a rule of law, but rather out of deference or respect. Courts extend immunity as a matter of comity to foster cooperation, promote harmony, and build goodwill.” Lee v. Miller County, Ark., 800 F2d 1372, 1375 (5th Cir. 1986). In discussing comity in the context of sovereign immunity, the Supreme Court counseled: “It may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability. They are free to do so.” Hall, supra at 426. We review the trial court’s refusal to extend comity for an abuse of discretion. See Lee, supra at 1376; see also Bradley v. Tattnall Bank, 170 Ga. App. 821, 824 (318 SE2d 657) (1984).

We have not previously had occasion to address whether as a matter of comity our courts should respect another state’s statutorily imposed sovereign immunity in a tort context. As a general rule, however, this court will not enforce the laws of another state as a matter of comity if they are contrary to the public policy of this state. See OCGA § 1-3-9; Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763 (417 SE2d 671) (1992). Those states which have addressed this issue are split on whether to recognize state sovereign immunity. A number of states have afforded immunity to another state. See, e.g., Flamer v. N. J. Transit Bus Operations, 607 A2d 260 (Pa. Super. 1992); Carrigan v. Cal. Horse Racing Bd., 802 P2d 813 (Wash. App. 1990); State v. Wilson, 771 P2d 1077 (Utah Ct. App. 1989); Schoeberlein v. Purdue Univ., 544 NE2d 283 (Ill. 1989); Newberry v. Ga. Dept. of Industry &c., 336 SE2d 464 (S. C. 1985); see also Lee, 800 F2d at 1379. While other states have refused to recognize sovereign immunity as a matter of comity, they have generally done so because extending immunity would violate the public policy of the forum state. See, e.g., Biscoe v. Arlington County, 738 F2d 1352 (D.C. Cir. 1984), cert. denied, 469 U. S. 1159 (1985); Mianecki v. Second Judicial Dist. Court, 658 P2d 422 (Nev. 1983) cert. dismissed, 464 U. S. 806 (1983); Hall v. Univ. of Nev., 503 P2d 1363 (Cal. 1972). In fact, in Struebin v. State, 322 NW2d 84 (Iowa 1982), cert. denied, 459 U. S. 1087 (1982), Iowa itself refused to recognize the sovereign immunity of the State of Illinois since Iowa permitted suit against itself under similar circumstances.

Appellant is an arm of the State of Iowa and, as such, is governed by the Iowa Tort Claims Act. Pursuant to this Act, the State of Iowa waives its immunity from suit only to the extent it is sued in its state courts. See Iowa Code § 25A.4. This section provides that “where the omission occurred outside of Iowa and the plaintiff is a nonresident, the Polk county district court has exclusive jurisdiction to hear” such claims. Georgia has also adopted a Tort Claims Act which similarly provides that it waives its sovereign immunity only to the extent it is sued in the courts of the State of Georgia. OCGA § 50-21-23 (b). Because the two provisions are conceptually identical, application of Iowa’s Tort Claims Act would not violate Georgia’s public policy and, as such, we should recognize and give effect to the legislatively declared policy of Iowa as a matter of comity. Accordingly, because extending immunity to appellant will not offend the public policy of this state, we find the trial court abused its discretion in not recognizing appellant’s sovereign immunity as a matter of comity. We therefore reverse the trial court’s denial of appellant’s motion to dismiss.

Decided December 3, 1993

Reconsideration dismissed December 20, 1993

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, for appellant.

Adam R. Gaslowitz, Robert C. Port, for appellees.

3. In view of our holding in Division 2, we need not address appellant’s remaining argument concerning the full faith and credit clause.

Judgment reversed.

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

       Flythe was dismissed for lack of venue and is not a party to this appeal.