text:
    A02A0737.
    GILBERT et al. v. AUTOMOTIVE PURCHASING SERVICE et al.
    (563 SE2d 906)
   Johnson, Presiding Judge.

This case arises from a slip and fall that is alleged to have occurred on September 11, 1999, in an automobile showroom operated by Automotive Purchasing Service. While shopping for an antique Chevrolet Corvette, Ita Gilbert contends that she slipped on an unknown substance. Gilbert and her husband sued Automotive Purchasing Service, Corvette City (a trade name for Automotive Purchasing Service), and Paul Hirshberg (chief executive officer for Automotive Purchasing Service) for Gilbert’s injuries and for her husband’s loss of consortium. Finding that the defendants lacked any knowledge of the hazard on its premises, the trial court granted summary judgment to the defendants. Gilbert contends that the evidence did not authorize that judgment, and we agree. Premises liability cases are not susceptible to summary adjudication except where the evidence is “plain, palpable, and undisputed.” Here, it was not.

When viewed in the light most favorable to Gilbert, the nonmov-ant, the evidence shows that Gilbert did not see any substam 3 on the floor prior to her fall, but, with the sunlight falling at a different angle on the floor after her fall, she saw the substance on which she slipped. According to Gilbert, there was a thin film of substance and a streak where her shoe had slid through the film. Gilbert’s husband testified that he knew exactly what the substance was — it was a sweeping compound typically used to clean garages and industrial areas. He testified that when he was a supervisor at a transformer facility, the cleaning crew had used the substance frequently. According to Gilbert’s husband, he had used the substance himself and knew it was excellent for cleaning grease, oil, and grit. However, he also knew that if it was not completely swept up, it was very slippery and dangerous.

Automotive Purchasing Service acknowledged that the floor was cleaned the night before Gilbert fell, but denied that the cleaning substance described by Gilbert’s husband was used. However, its witnesses gave different and inconsistent testimony as to what cleaning agent may have been used on the floor. And, there is no testimony from the individual who actually cleaned the floor the night before Gilbert’s fall.

Gilbert contends that material issues of disputed fact precluded summary judgment. We agree.

An owner or occupier of land is liable to invitees for injuries caused by his failure to exercise ordinary care in keeping his premises and approaches safe. This duty of ordinary care requires the owner to protect the invitee from unreasonable risks of harm of which the owner has superior knowledge and to inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. To recover for injuries sustained in a slip-and-fall action, therefore, the invitee must prove (1) that the owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite the exercise of ordinary care, due to actions or conditions within the control of the owner.

In the present case, Gilbert has presented evidence that she slipped on a foreign substance. She testified that after her fall, she could see a streak mark where her shoe had slipped. Moreover, her husband testified that he could identify the substance based on his experience in using the floor cleaner. Based on the record on appeal, there is sufficient evidence to create a genuine issue of material fact regarding the presence of a foreign substance on the floor where Gilbert fell.

The issue of whether Automotive Purchasing Service had actual or constructive knowledge of this substance is disputed. Although the evidence does not demonstrate that Automotive Purchasing Service had actual knowledge of the substance, it does preclude us from holding as a matter of law that Automotive Purchasing Service did not have constructive knowledge of the substance. Automotive Purchasing Service denies that the substance described by Gilbert’s husband was used. However, it acknowledges that the floor was cleaned the night before Gilbert slipped, and it does not identify the cleaner used on the floor. Thus, the evidence presented by Automotive Purchasing Service does not rebut the inference that the cleaning substance identified and described by Gilbert’s husband was, in fact, used the night before Gilbert’s fall. Viewed in a light most favorable to Gilbert, there is evidence from which a jury could find that Automotive Purchasing Service negligently created a dangerous condition on its premises that caused Gilbert to fall and injure herself. And, under Georgia law, one who creates a dangerous condition on his property has constructive knowledge of the danger.

In addition, even assuming that an Automotive Purchasing Service employee had inspected the floor earlier in the morning, such an inspection would not necessarily foreclose Gilbert’s recovery. “An owner/occupier is on constructive notice of what a reasonable inspection would reveal.” Here, Hirshberg testified that Automotive Purchasing Service had no systematic program in place for safety floor inspections. While an employee testified that he inspected the showroom just 15 minutes before Gilbert’s fall, he also testified that the floor was in the same condition after Gilbert’s fall as it was when he inspected it earlier. Based on Gilbert’s testimony of the presence of a foreign substance, as well as her husband’s testimony regarding the identification of the substance, it is for a jury to determine whether the Automotive Purchasing Service employee conducted a cursory and inadequate inspection which failed to disclose the substance upon which Gilbert slipped and whether the substance was discoverable upon a reasonable inspection. Similarly, a jury must decide whether Automotive Purchasing Service breached its duty under OCGA § 51-3-1 to keep its premises in a reasonably safe condition by negligently conducting that inspection or by failing to warn of the dangerous condition.

It is not our role on appeal to assess the credibility of Gilbert, her husband, or the employees of Automotive Purchasing Service. Any evidence of a witness’ interest or bias is for jury consideration. And, contrary to the trial court’s holding, Gilbert’s husband’s testimony regarding evidence of the cleaning compound on the floor is not speculation. As the Supreme Court of Georgia has ruled, evidence that is based on a witness’ personal observation and training is not speculation. Opinion evidence may be sufficient to preclude the grant of summary judgment. Since there is evidence in the record from which a jury could determine that Automotive Purchasing Service had constructive knowledge of the substance allegedly causing Gilbert’s fall, we reverse the trial court’s grant of summary judgment.

Judgment reversed.

Blackburn, C. J., and Miller, J., concur.

Decided April 8, 2002.

Jesse E. Barrow III, for appellants.

David T. Markle, for appellees.

        Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997).

       (Citations and punctuation omitted.) Gunter v. Patterson Bank, 247 Ga. App. 555, 557-558 (544 SE2d 735) (2001).

       See id. at 558.

       See Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 443-444 (2) (491 SE2d 881) (1997).

        Jackson v. Waffle House, 245 Ga. App. 371, 373 (1) (537 SE2d 188) (2000).

       See Wallace v. Nissan of Union City, 240 Ga. App. 658, 660 (1) (524 SE2d 542) (1999).

       “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

       See Wallace, supra.

        Gunter, supra at 559.

       See Felder v. State, 270 Ga. 641, 645 (7) (514 SE2d 416) (1999).

        Furlong v. Dyal, 246 Ga. App. 122, 124 (1) (539 SE2d 836) (2000).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1815.
    BALTAZAR v. THE STATE.
    (564 SE2d 202)
   Ruffin, Judge.

A Cobb County jury found Jesus Baltazar guilty of trafficking in cocaine, and the trial court sentenced him to serve 25 years in confinement. On appeal, Baltazar challenges the sufficiency of the evidence. As we agree that the evidence of Baltazar’s guilt was insufficient, we reverse.

On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to support the jury’s verdict. So viewed, the evidence shows that on April 1, 1999, a California law enforcement agency contacted Georgia authorities regarding a suspicious package that was en route to Georgia via Federal Express. On April 2, 1999, after the package arrived in Georgia, narcotics agents discovered that it contained over two pounds of cocaine with a purity of eighty-four percent. The package was addressed to “Kevin Kline” at a Cobb County address. The narcotics agents notified law enforcement officers in Cobb County, who then arranged to make a controlled delivery of the package.

Detective Jeff Durrin, a narcotics agent from Smyrna, was chosen to deliver the package. Durrin has been involved in 30 or more controlled deliveries of contraband. According to Durrin, it is common to “encounter . . . people that are paid to pick up a package” at a “drop location.” Durrin also testified that “a lot of times there are fictitious names used on the package [containing contraband] and also names that aren’t related to the location . . . that the package is going to.”

On April 2, 1999, Durrin dressed in a Federal Express delivery uniform and drove to the address listed on the package, where there was a trailer that appeared to be uninhabited. According to Durrin, “[t]here were no vehicles parked in front of the trailer, no one standing around the trailer. The blinds were pulled down. It just didn’t appear that there was anyone either at home or living there.”

Upon arriving at the trailer, Durrin “took the package and a clipboard with a FedEx sign-in sheet up to the door of the trailer and knocked on the door.” A few seconds later, Baltazar opened the door, and Durrin told him that there was a package for the location and asked him to sign for it. Durrin testified that Baltazar “shook his head as if not to understand what [Durrin] was saying and started to speak in Spanish.” Durrin admittedly does not speak Spanish well. Rather than attempting to speak Spanish, Durrin pointed to the clipboard “trying to indicate to [Baltazar] that to be able to obtain the package, he needed to sign for it.” Durrin described Baltazar as “basically calm, smiling, as if to say that he didn’t understand.” After Dur-rin pointed at the signature sheet two or three times, Baltazar took the clipboard and “printed the name ‘Kevin Kline’ on the signature record while . . . looking at the face of the package.”

Durrin then handed Baltazar the package, and Baltazar went inside. Shortly thereafter, another Cobb County police officer knocked on the door of the trailer. When Baltazar answered the door the second time, he was arrested. During a sweep of the trailer, the officers discovered the unopened package on the floor. The police also found on a table a Spanish business card for “Wireless Communication” with the name “Fortino Cisneros” printed on the front of the card. The name “Kevin Kline” was handwritten on the back of the card. The trailer had been leased to a person named Fortino Cis-neros, and an officer called the number listed on Cisneros’ business card. However, the person that answered the phone spoke Spanish, so the officer, who did not speak Spanish, was unable to inquire about Cisneros. Based upon this evidence, the jury found Baltazar guilty of trafficking in cocaine.

Under OCGA § 16-13-31 (a) (1), “[a]ny person who ... is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine.” Thus, in order to be guilty of trafficking, Baltazar must have known that the package contained cocaine. Here, “[b]ecause the evidence of [Baltazar’s] knowledge is circumstantial, the relevant question is whether, considering the evidence in its totality, a rational trier of fact could conclude that [Baltazar’s] guilt is the only reasonable hypothesis.” “This is so because under OCGA § 24-4-6, to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

Decided March 19, 2002

Reconsideration denied April 9, 2002

Sidney L. Storesund, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Samuel W. Lengen, Assistant District Attorneys, for appellee.

The evidence presented does not exclude every hypothesis except Baltazar’s guilt. Baltazar’s presence in what appeared to be an empty trailer to which a package of cocaine was delivered raises suspicion regarding his involvement in cocaine trafficking. However, mere suspicion will not sustain his conviction. Although we acknowledge the possibility that Baltazar knew he was waiting for a package of cocaine to be delivered, we also acknowledge the possibility that Baltazar was merely a patsy — unaware of the package’s contents. Under these circumstances, his conviction must be reversed.

The case cited by the State, Perkins v. State, does not require a different result. Perkins also involved the controlled delivery of contraband to a possibly fictitious person. Unlike this case, however, there was evidence linking the defendant to the contraband in addition to the defendant signing for the package. The evidence showed, among other things, that the defendant (1) was from the place where the package originated; (2) had drug paraphernalia and a gun in his house; (3) had a large amount of cash despite not having worked for over two weeks prior to his arrest; and (4) had the tracking number for the delivery service in his wallet at the time of his arrest.

Here, there is no such additional evidence linking Baltazar to the cocaine. To the contrary, the evidence consists largely of the fact that Baltazar signed for the package. Although the police also found a business card with the name “Kevin Kline” printed on it, the State failed to link the card to Baltazar. If the card had been found in Baltazar’s wallet — like the tracking number in Perkins — this case might have a different result. But, as the evidence stands, Perkins does not control, and Baltazar’s conviction must be reversed.

Our holding renders Baltazar’s remaining enumerations of error moot.

Judgment reversed.

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

       See Horne v. State, 237 Ga. App. 844-845 (1) (517 SE2d 74) (1999).

        Perkins v. State, 244 Ga. App. 412, 415 (535 SE2d 802) (2000).

       (Punctuation omitted.) Luke v. State, 230 Ga. App. 712, 715 (3) (497 SE2d 376) (1998).

       See id.

       See id. at 714-715.

       Supra at 415.

       See id. at 416-417.


author: Phipps, Judge.

text:
    A01A1996.
    COX v. SOUTHERN GUARANTY INSURANCE COMPANY et al.
    (563 SE2d 882)
   Phipps, Judge.

Claude Emery Cox sued Southern Guaranty Insurance Company of Georgia and John Dempsey d/b/a Dempsey Insurance Agency for refusing to pay an insurance claim for damage to a truck that he wrecked. Because the record shows that the policy that covered the truck excluded losses arising out of wrecks in which Cox was the driver, we affirm the trial court’s summary judgment to Southern Guaranty and Dempsey Insurance Agency.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant of summary judgment de novo and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Construed in this light, the record shows that in December 1986, Southern Guaranty, through Dempsey Insurance Agency, began insuring the vehicles of C. E. Cox d/b/a Cox Caulking & Insulation Company, which Cox owned. The commercial automobile policy, GLA9692, was renewed annually and continued through 1998. In December 1994, Southern Guaranty’s review of the driving record for each of the company’s employees revealed that Cox had been cited twice for DUI. Southern Guaranty then provided Dempsey Insurance Agency with a driver exclusion endorsement form to exclude Cox from the policy.

In January 1995, Cox went to Dempsey Insurance Agency and signed certain documents concerning the policy. The record shows that one such document was the endorsement that voided the policy while Cox was operating a covered vehicle.

Later, Cox purchased a truck, added the truck to Policy GLA9692, and received from Dempsey Insurance Agency an insurance card that listed the truck and identified “C. E. Cox, d/b/a Cox Caulking and Insulation” as the named insured. Thereafter, in April 1998, Cox wrecked the truck. He sought collision coverage for damage to the truck, but Southern Guaranty denied his claim on the ground that he was an excluded driver pursuant to the endorsement. Cox sued. The trial court granted the defendants summary judgment, determining that the exclusion endorsement operated to deny coverage for Cox’s claim.

1. In several claims of error, Cox contends that the trial court erred in granting summary judgment, essentially asserting that there was some ambiguity in the policy’s language regarding coverage and the named insured. We do not agree.

The endorsement that Cox signed stated that effective January 4, 1995, it was “VOIDING AUTOMOBILE INSURANCE WHILE A CERTAIN PERSON IS OPERATING CAR.” It listed “CLAUDE EMERY COX” as the driver excluded. The endorsement also stated that it “FORM [ED] A PART OF POLICY NO. GLA9692 ISSUED TO C E COX DBA, BY SOUTHERN GUARANTY INSURANCE COMPANY.” Further, Policy GLA9692, renewed for inception date December 18,1997, to expiration date December 18,1998, provided that the policy was “[s]ubject to the original conditions of the policy and subsequent endorsements.” It, too, listed “C E COX DBA COX CAULKING & INSULATION . . as the “named insured,” and its section entitled “FORMS AND ENDORSEMENTS MADE PART OF THIS POLICY AT TIME OF ISSUE” specified “DRIVER EXC.”

“Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy.” “Moreover, voidance of exclusion to an insurance policy is a severe penalty which alters the very terms of the deal between the parties. It requires the insurer to provide coverage for uncontracted risk, coverage for which the insured has not paid.” “When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the courts must expound the contract as made by the parties.”

We reject Cox’s assertion that the policy was ambiguous. And we are not persuaded by his unsupported characterization of the endorsement as “an internal document [that] is not part of the insurance policy.” The only reasonable construction of the unambiguous endorsement modifying Southern Guaranty’s liability requires a conclusion that the policy excluded coverage for losses arising out of automobile accidents in which Cox was the driver. “An insured who can read is required to read the policy and is presumed to have understood its contents.” Cox acknowledged that he could read and that the signature on the endorsement was his. The trial court did not err in granting summary judgment to Southern Guaranty and Dempsey Insurance Agency.

Decided March 26, 2002

Reconsideration denied April 9, 2002

Floyd H. Farless, for appellant.

Barrickman, Allred & Young, Joan G. Grumpier, Mabry &

2. Citing Ga. Farm &c. Ins. Co. v. John Deere Ins. Co. and Ga. Farm &c. Ins. Co. v. Schlies, Cox contends that a genuine issue of material fact exists regarding whether he reasonably believed that he was covered by the policy. He claims that the insurance policy named him as a “named insured” and that he continued to receive insurance cards listing him as the “named insured.” This contention is without merit.

Cox’s claims regarding the “named insured” are unsupported. First, his brief provides no cites to the record in violation of this court’s Rule 27 (c) (3) (i). Although he attempts to cite to documents attached to his brief, exhibits attached to appellate briefs are not evidence, nor are they considered part of the record. This court has no duty to cull the record in search of evidence to support the contentions of parties.

Second, exercising our discretion to review the record, we find that the original policy, as well as the renewal policy and the insurance card in effect at the time of the wreck, each identified the “named insured” as “C E Cox d/b/a Cox Caulking & Insulation Company,” and not Cox, personally.

Furthermore, Cox’s reliance on John Deere Ins. Co. and Schlies is misplaced. In those cases concerning coverage for claims involving nonowners driving vehicles, we considered the exclusionary language, “We do not provide Liability Coverage for any person . . . using a vehicle without a reasonable belief that the person is entitled to do so.” There, the appropriate test was a mixed objective/subjective determination of whether the nonowner driver had a reasonable belief that he had permission from the owner or apparent owner to use the vehicle. But because there is no such exclusionary language at issue here, John Deere Ins. Co. and Schlies are not controlling.

Judgment affirmed.

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

McClelland, Robert M. Darroch, Nathan W. Kotas, Michael T. Thornton, for appellees.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       OCGA § 33-24-16.

       (Citation and punctuation omitted.) Cotton States Mut. Ins. Co. v. Coleman, 242 Ga. App. 531, 532 (530 SE2d 229) (2000).

       (Citation and punctuation omitted.) Id. at 533.

       Id. at 532.

       244 Ga. App. 546 (536 SE2d 258) (2000).

       238 Ga. App. 299 (520 SE2d 468) (1999).

       “Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”

        Sherard v. Aldridge, 251 Ga. App. 445, 447 (1) (554 SE2d 590) (2001).

        Crosby v. DeMeyer, 229 Ga. App. 672, 673 (1) (494 SE2d 568) (1997).

       See John Deere Ins. Co., supra at 547; Schlies, supra at 300.

       See John Deere Ins. Co., supra; Schlies, supra at 300-301.


text:
    A01A2242.
    MYERS v. FUNDERBURK.
    (564 SE2d 27)
   Phipps, Judge.

Gene Funderburk purchased real property from Hamp Myers by general warranty deed. The property was later forfeited to the United States due to criminal activity by the person from whom Myers obtained title. After an unsuccessful challenge to the government’s adverse claim, Funderburk sued Myers, alleging breach of warranty of title and fraud in the conveyance. The trial court granted Funderburk summary judgment, finding breach of warranty of title and awarding him the purchase price plus interest. Myers appeals, complaining that Funderburk knew before he purchased the property that it was subject to forfeiture and that Funderburk did not give him notice and opportunity to defend the title in the federal proceedings. Myers, however, has demonstrated no basis for reversal. We affirm.

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

The following facts are not disputed. In May 1998, James Lang-ford, who owned the property located in Jackson County, was charged with drug crimes. Forfeiture of the property was sought pursuant to 21 USC § 853. The next month Langford transferred the property by a quitclaim deed to his father-in-law, Myers. Langford was convicted, and as part of his sentence imposed on January 15, 1999, the court ordered him to forfeit the property. Myers sold the property to Funderburk by a warranty deed on January 21, 1999. On January 29, 1999, the United States District Court for the Northern District of Georgia entered a preliminary order of forfeiture of the property.

Pursuant to 21 USC § 853 (n), a third party may defeat the government’s claim to forfeited property by either (1) demonstrating that he was a bona fide purchaser of the property, that is, one who purchased the property for value and reasonably without any cause to believe that the property was subject to forfeiture, or (2) establishing that his own interest is superior to the defendant’s interest. Fun-derburk challenged the forfeiture proceedings by laying claim to the property in the federal district court. The court determined that he failed to demonstrate that he was a bona fide purchaser since he had actual notice that the property was subject to forfeiture because he had attended Langford’s trial and Langford’s wife had told him that the government was trying to take the property. The court also determined that Funderburk failed to establish that his interest was superior to Langford’s. The court denied Funderburk’s claims, and the United States thereafter filed in the county records a notice of transfer of title from Funderburk to the United States.

Unsuccessful in his challenge to the government’s claim to the property in federal court, Funderburk sued Myers. The parties filed cross-motions for summary judgment. The trial court denied Myers’s motion and granted Funderburk’s, based upon its finding of breach of warranty of title.

1. Myers contends that the trial court improperly granted summary judgment to Funderburk on the claim of breach of warranty of title because Funderburk knew before he purchased the property that it was subject to forfeiture and Myers had no notice and opportunity to defend the title in the federal proceedings.

The warranty deed contained Myers’s promise to “warrant and forever defend the right and title to the [property] unto [Funder-burk], his heirs and assigns, against the lawful claims of all persons whomsoever.” Although Myers complains that Funderburk knew that the property was subject to forfeiture, it has long been settled that “[i]n a deed, a general warranty of title against the claims of all persons covers defects in the title even if they are known to the purchaser at the time he takes the deed.” Thus, the fact that Funder-burk knew that the property was subject to forfeiture did not defeat his breach of warranty of title claim.

Nor was the breach of warranty of title claim defeated by Myers’s complaint that he had no notice of the federal proceedings wherein Funderburk sought to clear title in his name. Myers urges that a warrantee must notify a warrantor of a suit subjecting the warrantee to ouster from the property to give the warrantor the opportunity to defend title. He contends that because Funderburk did not notify him of his challenge in federal court to the government’s adverse claim, the breach of warranty of title claim fails. As support for his contention, Myers cites Gragg v. Richardson, Clements v. Collins, Haines v. Fort, Osburn v. Pritchard, and Cook v. Pollard. With the exception of Cook v. Pollard, which concerns the sale of personalty, those cases stand for the proposition that to prove a breach of warranty of title, the plaintiff must show either that he yielded possession in consequence of legal proceedings, of which the warrantor had notice and an opportunity to defend, or that he was evicted under an outstanding paramount title or superior lien upon the land. While Myers complains that he had no notice of the federal proceedings, he does not dispute that the government’s title was paramount to that which Funderburk derived from him. Consequently, Myers’s argument fails.

Decided March 13, 2002

Reconsideration denied April 9, 2002

Jerry C. Carter, Jr., for appellant.

Troy R. Millikan, for appellee.

2. We do not reach Myers’s contention regarding a claim of money had and received as the trial court did not grant summary judgment on that basis.

Judgment affirmed.

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

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See United States v. Jimerson, 5 F3d 1453, 1455 (11th Cir. 1993).

       OCGA § 44-5-63.

       25 Ga. 566 (1858).

       59 Ga. 124 (1877).

       93 Ga. 24 (18 SE 994) (1893).

       104 Ga. 145 (30 SE 656) (1898).

       50 Ga. App. 752 (179 SE 264) (1935).

       See Gragg, supra at 570; Clements, supra at 126 (1); Haines, supra at 28 (3); Osburn, supra at 146 (2); see also OCGA § 44-5-64 (“[i]n actions for breach of warranty of title, the burden of proof is on the plaintiff except in cases where outstanding encumbrances have been paid off or possession has been yielded as a consequence of legal proceedings of which the warrantor had notice and an opportunity to defend”).

       See 21 USC § 853 (c) (forfeited property vests in the United States upon the commission of the act giving rise to the forfeiture).


text:
    A01A2446.
    A01A2447.
    DEPARTMENT OF TRANSPORTATION v. CARR. DEPARTMENT OF TRANSPORTATION v. JENKINS et al.
    (564 SE2d 14)
   Ruffin, Judge.

These appeals arise out of a fatal automobile wreck that occurred on the South Dalton Bypass (the “Bypass”) in Whitfield County. The surviving relatives sued the Georgia Department of Transportation (“DOT”), alleging that the wreck was caused by DOT’s negligent maintenance of the Bypass. DOT moved to dismiss the complaints, arguing that the Bypass was a county road and that it was protected by sovereign immunity. The trial court denied DOT’s motions, but certified the orders for immediate review. We granted DOT’s applications for interlocutory appeal, and for reasons that follow, we affirm.

Initially, we must address whether DOT’s motions, though couched as motions to dismiss, should be treated as motions for summary judgment. Because it is clear that DOT, the plaintiffs, and the trial court all relied on numerous documents outside the pleadings, the motions to dismiss should be treated as motions for summary judgment under OCGA § 9-11-56. Summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The evidence on file in this case is largely undisputed. It shows that on July 23,1999, Jerry Benton, Jr. was driving a truck along the Bypass with a passenger, Benjamin Phillips. After the tires of Benton’s truck went over the road shoulder, he lost control, and the truck rolled over. Both Benton and Phillips died as a result of the wreck. Benton’s mother, Leah Benton Jenkins, sued DOT alleging it negligently maintained the road shoulder. Phillips’ sole surviving son, Logan Carr, through his guardian, Tina Carr, also sued DOT for negligence.

DOT asserts that the trial court erred in denying its motions to dispose of these claims because the undisputed evidence shows that, on the date of the wreck, it had no duty to maintain the Bypass and thus could not be held liable for negligently maintaining the road. DOT also asserts that the trial court erred in failing to apply the inspection exception to the state’s waiver of sovereign immunity. Finally, DOT contends that the trial court erred in granting the plaintiffs’ motion to strike portions of an affidavit filed in support of its motions. Because each of DOT’s appeals presents identical issues, we will address them jointly.

1. To address DOT’s arguments, we must determine whether the evidence establishes that the department had a duty to maintain the road before July 23, 1999, when the wreck occurred. This is because “[t]he threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care. Whether a duty exists upon which liability can be based is a question of law” that must be resolved prior to any discussion of sovereign immunity. As a general matter, the Georgia Code of Public Transportation requires DOT to maintain public roads within the state highway system, but, subject to a few limitations, prohibits the department from maintaining any public road not on the state highway system. Because the state has only waived its sovereign immunity for the “torts of state officers and employees while acting within the scope of their official duties or employment,” the pivotal question is whether, at the time of the wreck, the Bypass was part of the state highway system.

The Code classifies Georgia’s public roads into three systems: (1) a state highway system; (2) county road systems; and (3) municipal street systems. The state highway system includes roads which are “designated by [DOT] as part of the state highway system.” The designation of a road as a state highway is governed by OCGA § 32-4-21, which provides in part:

Whenever the [State Transportation Board], or the commissioner [of transportation] when the board is not in session, deems it necessary and in the public interest to have a new or existing public road designated as part of the state highway system, whether as additional mileage or as part of a substitution or relocation, the board, by resolution, or the commissioner, by written notice to the board, may designate such road to be a part of the state highway system. If the road proposed to be designated is a part of either a county road system or a municipal street system, the department shall give written notice to the county or municipality of the effective date that such road shall become part of the state highway system.

In this case, it is undisputed that the Bypass was formerly a Whitfield County road. Relying on OCGA § 32-4-21, DOT argues that the Bypass did not become a state highway until January 5, 2000, the date the transportation commissioner issued a written notice to Whitfield County that it was adding the road to the state highway system.

In response, the plaintiffs point to evidence showing that DOT had taken over control of the Bypass before the July 23, 1999 wreck. The record shows that on April 9, 1997, the DOT commissioner issued a notice of intent to add the Bypass to the state highway system “once improvements are completed to bring [the road] up to State Route standards.” The notice further provided that the commissioner intended “to approve an Order thirty days from receipt by [the Chairman of the Whitfield County Board of Commissioners and the Mayor of Dalton] of this notice and by which Order the State Highway System will be revised.”

It appears that the Chairman of the Whitfield County Board of Commissioners and the Mayor of Dalton received the notice of intent by May 14, 1997, but that the 30-day time frame to complete the improvements was a little unrealistic. The improvements required to bring the Bypass up to state route standards were not completed and accepted by DOT until January 11, 1999. A letter from DOT to the county, notifying the county that the construction was complete, states that the Bypass was not, at that time, “located on the State Highway System” and that it was, therefore, the county’s “responsibility to assume the maintenance of this project as of January 11, 1999.”

However, in June 1999, DOT took over those maintenance responsibilities. According to Charles Harden, the DOT district maintenance engineer in charge of maintaining the Bypass, communications about DOT assuming maintenance of the road started “in the late spring of ‘99 [, when he] received some correspondence about the project . . . finishing ... up and the question of taking it onto the system.” Harden testified in his deposition that ultimately, in June 1999, “[m]y instructions . . . [were] that the appropriate information had been signed off by both local officials and our people; and I discussed that with my supervisor, and we made arrangements to place signs and take it on the system, to make signage changes to the route.” Harden further stated that an individual in his office who normally handles routing changes showed him a document indicating that DOT had assumed responsibility for the Bypass and that it had become part of the state system before June 1999. Accordingly, in June, Harden ordered maintenance workers to post state route signs along the road, a task that they completed that month, and to start maintaining the Bypass. As far as Harden was concerned, from that point forward DOT had accepted responsibility for the Bypass and was maintaining it just as it would any other state highway.

Harden’s supervisor, Charles Law, stated in his deposition that in June 1999, he too thought that the commissioner had signed the order for the Bypass to become part of the state highway system, but that he later learned that order had not been signed. According to Law, the Bypass was physically ready to become a state highway in June, and the only reason it was not “officially” part of the system was because the commissioner had not, in fact, signed the order.

Harden and Law were not the only DOT representatives who, in June 1999, thought the Bypass was already designated as a state highway. Kenny Roach, an assistant district maintenance engineer, testified that the state maintenance engineer ordered him to put up state highway system signs along the Bypass. Roach assumed that it was already a state highway because he was putting up state highway signs. And Devon Woodworth, the DOT area engineer, stated that she considered the Bypass part of the state system and that her office maintained the road accordingly. Based on her belief that it was a state highway, in June 1999, Woodworth informed Whitfield County officials that the Bypass “was now on the state system and that it was [DOT’s] road.” According to Woodworth, both the county and DOT clearly understood that DOT was assuming control of the Bypass and that the county was relieved of its responsibilities. DOT has máintained the Bypass since that time.

For a duty to arise in this case, DOT was not required to strictly comply with the Public Transportation Code requirements concerning the designation of state highways. The legislature intended the Code “to provide an effective legal basis for the organization, administration, and operation of an efficient, modern system of public roads.” Accordingly, the Code establishes a system for delegating administrative and operational responsibilities for the public roads among the state, counties, and municipalities. As a general rule, however, “substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” We are unaware of any provision demanding strict compliance with the designation requirements before a road can be considered a state highway. To the contrary, the Public Transportation Code explicitly favors a liberal construction of its terms to enable DOT “to perform all acts which are necessary, proper, or incidental to the efficient operation and development of the department and of the state highway system.”

In light of this clear expression of the legislature’s intent favoring liberal construction and only substantial compliance, we find no merit in DOT’s argument that the Bypass was not a state highway because the commissioner had not yet given Whitfield County written notice of the designation, as required by OCGA § 32-4-21. Although the statute contemplated that DOT would give the county prior written notice, it did not “declare that non-compliance would negate the procedure.” Furthermore, DOT’s failure to strictly comply with the written notice requirement did not injure the rights of DOT, the county, or the public. Indeed, DOT’s sole basis for challenging the designation is the absence of the commissioner’s written notice to the county, and it appears that the department had done everything else necessary for the Bypass to be considered a state highway by the end of June 1999. In fact, as discussed above, the commissioner had previously issued a written notice to Whitfield County of DOT’s intent to add the Bypass to the state highway system once necessary improvements were completed, and those improvements were finished in January 1999. Moreover, in June 1999, DOT was exclusively maintaining the Bypass as a state highway, had changed the road signs to show that it was a state highway, and verbally notified Whitfield County that it was a state highway and the county was relieved of its responsibility to maintain it.

Although the process used did not strictly comply with the Public Transportation Code, it nevertheless resulted in an efficient transition of responsibility for administering the Bypass from the county to DOT, as intended by the Code, and we cannot conceive of any harm to either of those two entities flowing from the late issuance of the commissioner’s written notice. While it might have been a better practice for DOT to give written notice of the designation to the county before actually taking over control of the Bypass, under the circumstance of this case, we do not believe that failure to do this was fatal. Accordingly, we agree with the trial court that, on the date of the accident, the Bypass was part of the state highway system and that DOT, therefore, had a duty to maintain the road. Inasmuch as the plaintiffs have alleged that DOT was negligent in performing that duty, and DOT has not shown that such claim is outside its waiver of sovereign immunity for the torts of its officers and employees, the trial court properly denied DOT’s motion.

Decided March 11, 2002

Reconsideration denied April 9, 2002

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for appellant.

Watkins, Lourie & Roll, Joseph W. Watkins, Lance D. Lourie, for appellee (case no. A01A2446).

2. Although plaintiffs’ claims clearly rest on DOT’s alleged negligence in maintaining the highway, DOT asserts that the trial court erred in not applying the inspection exception to the state’s limited waiver of sovereign immunity. Under this exception, the state cannot be held liable for

[inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.

Again, however, the plaintiffs do not seek to hold DOT liable for negligently inspecting the road. Thus, notwithstanding DOT’s attempt to contort plaintiffs’ claims into a negligent inspection theory of recovery, this assertion is without merit.

3. DOT also argues that the trial court erred in striking portions of the affidavit of DOT’s Systems and Classifications Branch Chief, who concluded that “[p]rior to January 5, 2000, [the Bypass] remained a county road and was not a part of the State Highway system.” Inasmuch as this statement-constituted a mere legal conclusion and not a statement of fact, it could not be used to support DOT’s motions for summary judgment. Accordingly, we find no error.

Judgments affirmed.

Johnson, P. J., concurs. Ellington, J., concurs in the judgment only.

Moore & Moore, Willis N. Moore, for appellees (case no. A01A2447).

       See Peeples v. City of Atlanta, 189 Ga. App. 888-889 (1) (377 SE2d 889) (1989) (physical precedent only).

       OCGA § 9-11-56 (c). See also Murray v. Dept. of Transp., 240 Ga. App. 285 (523 SE2d 367) (1999).

       Jenkins filed the complaint in her individual capacity and as the administratrix of Benton’s estate.

         (Citation and footnote omitted.) City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993).

       See id. at n. 1.

       OCGA § 32-1-1 et seq.

         See OCGA § 32-2-2 (a) (1).

       See OCGA § 32-2-61 (e).

       OCGA § 50-21-23 (a).

       See OCGA § 32-4-1.

       OCGA § 32-4-1 (1).

       (Emphasis supplied.) See also OCGA § 32-1-3 (2), (5) (defining “Board” as “State Transportation Board” and “Commissioner” as “the commissioner of transportation”).

       OCGA § 32-1-2.

       See id.; Jordan v. Way, 235 Ga. 496, 498 (3) (220 SE2d 258) (1975).

       OCGA § 1-3-1 (c).

       OCGA § 32-2-2 (b).

        State of Ga. v. Battise, 177 Ga. App. 583, 584 (340 SE2d 240) (1986) (also recognizing that “[s]tatutes directing a mode of proceeding by public officers, which are designated to promote the method, system uniformity, and dispatch in such proceeding, will be regarded as directory only if a disregard thereof will not injure the rights of the parties, and the statute does not declare what result shall follow non-compliance therewith, nor contain negative words importing a prohibition of any other mode of proceeding than that prescribed”).

       See id.

       See OCGA §§ 32-1-2; 32-2-2 (b).

       See Battise, supra.

       See id.

       See OCGA § 50-21-23.

       OCGA § 50-21-24 (8).

       See GE Capital Mtg. Svcs. v. Clack, 271 Ga. 82, 85 (2) (b) (515 SE2d 619) (1999) (citing Bradley v. Tattnall Bank, 170 Ga. App. 821 (3) (318 SE2d 657) (1984) (physical precedent only)).


text:
    A01A2474.
    MERRITT v. THE STATE.
    (564 SE2d 3)
   Ruffin, Judge.

Hope Merritt was indicted on three counts of felony theft by taking. After a bench trial on stipulated facts, the trial court found Merritt guilty on two of the counts. Merritt appeals, asserting that the evidence was insufficient to support his convictions and that the trial court erred in denying both his motion to quash the indictment and his plea of former jeopardy. Finding the evidence sufficient to support Merritt’s conviction on only one of the two counts, but no error in the trial court’s denial of his motions, we affirm in part and reverse in part.

1. Viewed in a light most favorable to the trial court’s judgment, the stipulated facts show that Merritt was an accountant for the two victims, Reginald Johnson and Jeffrey Brown, and he offered to invest money for them. Johnson began investing money through Merritt in 1989, when Merritt told Johnson that he would invest Johnson’s money, along with money from other investors, in a jumbo certificate of deposit yielding 12 percent annual interest. Merritt informed Johnson that, because there was a group of investors, he would not receive an individual statement from the bank. From 1989 to 1995, Johnson gave Merritt approximately $194,865 to invest. In October 1995, Merritt sent Johnson a memorandum stating that Johnson’s investment, with accrued interest, had matured to $314,852.38.

The next month, Johnson told Merritt he needed to withdraw the money from the investment. Merritt, however, failed to return phone calls or provide Johnson with specific information about when he would receive the funds. Finally, in September 1996, Merritt told Johnson that he had actually invested the money in a brake shoe manufacturing company. Merritt knew very little about the company, however, and, as evidence of the investment, he produced only a copy of a stock certificate that was issued to “Hope Merritt, Jr.” on February 18, 1988.

Although Merritt acknowledged that Johnson gave him money, Merritt claimed it was a loan. According to Merritt, he was experiencing cash flow problems, and Johnson loaned him the money so that Merritt could expand his business. Merritt contended that he spent the money on business expenses, and there was no agreement about when he was required to repay the loan. Merritt also acknowledged showing the stock certificate to Johnson in 1996, but claimed he was merely offering Johnson “an opportunity to get something back.” According to Johnson, prior to the time he was shown the stock certificate in September 1996, he did not have any reason to believe that Merritt was appropriating the invested funds for his own use.

Merritt’s other victim, Brown, invested $40,000 with Merritt between May 1995 and the end of November 1995. Merritt told Brown that the money was being invested in a real estate venture involving the purchase, development, and sale of land and would yield an eight percent return. Aside from two small payments from Merritt of approximately $1,200 and $1,500, Brown never again saw his invested money. As with Johnson’s money, Merritt contended that Brown loaned him the funds, which he then used to pay business expenses. According to Merritt, “[a] 11 of his losses (the borrowed money and the profits) were consumed by expenses between 1994 and November, 1995.”

On February 4, 2000, a Fulton County grand jury indicted Merritt for theft by taking, alleging that he unlawfully appropriated “U. S. currency” belonging to Johnson and Brown.

(a) Merritt asserts that the State failed to prove that he was indicted within the statute of limitation. Georgia law requires the State to prosecute a felony theft by taking offense within four years after the crime is committed. The crime of theft by taking occurs when a person, “being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” The four-year statute of limitation, however, does not include any period in which the crime is unknown. “Thus, the key to determining when the statute of limitation begins to run is to find when the offender or offense became known. The State bears the burden of proof in this regard.” Whether the State has met this burden is a question for the factfinder.

The stipulated facts in this case show that Merritt admitted he exhausted Johnson’s and Brown’s money for personal expenses no later than November 1995. Thus, the statute of limitation began to run at that time, absent some evidence that Johnson or Brown did not actually know about the crimes. Johnson unequivocally asserted that he did not know that anything was amiss with his money until at least September 1996, when Merritt presented him with the spurious stock certificate and claimed, for the first time, that he had invested the funds in a brake shoe company. Thus, because Merritt was indicted within four years of September 1996, the State met its burden of proving that its prosecution of that offense was timely.

We reach a different conclusion concerning the charge that Merritt stole Brown’s money. Again, the stipulated facts show that Merritt committed the offense no later than November 1995. But there is no evidence showing when Brown discovered the crime. Under these circumstances, the State did not meet its burden of proving that Merritt was indicted for stealing Brown’s money within the statute of limitation, and the trial court clearly erred in finding otherwise. Accordingly, Merritt’s conviction for stealing Brown’s money must be reversed.

(b) Merritt also asserts that the State failed to prove that he unlawfully appropriated “U. S. currency,” as alleged in the indictment. According to Merritt, there was no evidence showing that Johnson gave him currency, and the stipulated facts merely showed that he gave him checks. Even if “U. S. currency” means only cash, however, this discrepancy in proof was not fatal. In Arnold v. State and Bartel v. State we addressed the identical issue and ruled that

not every variance in proof from that alleged in the indictment is fatal. The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. Unless the variance subjects defendant to one of these dangers it is not fatal.

In this case, as in Arnold and Bartel, the defendant was not subject to such dangers, and the variance in proof was thus not fatal.

2. Merritt asserts that the trial court erred in denying his motion to quash the indictment because the indictment was not perfect in form. We disagree.

The record reveals that the case against Merritt was originally presented for indictment by the District Attorney of Fulton County, Paul L. Howard, Jr. In September 1998, however, Howard notified the trial court that, due to an interest or relationship associated with the case, his office should be disqualified. The trial court ordered the disqualification and reassigned the case for prosecution by the District Attorney for the Stone Mountain Judicial Circuit. After the reassignment, an Assistant District Attorney for the Stone Mountain Judicial Circuit, Maria Ashley, drew a new indictment. Because the case was still being indicted in Fulton County, Ashley used a Fulton County indictment form when she drafted the indictment. Ashley neglected, however, to remove Howard’s name from the form. Merritt subsequently moved to quash the indictment, arguing that because Howard’s name appeared on the indictment as the prosecuting authority after his office was disqualified, it was improper in form. The trial court denied the motion, and Merritt challenges that ruling on appeal.

Though we agree with Merritt that Howard’s name should have been removed from the indictment, such imperfection does not warrant reversal. It is undisputed that neither Paul Howard nor his office participated in any way in preparing the indictment or in presenting the case to the grand jury. Considering that “the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy,” we can discern no harm to Merritt under the circumstances here. Furthermore,

[w]hen trial has been had before the appellate court reviews the merits of the motion to quash, where no prejudice to defendant has occurred though the indictment (or accusation or citation) is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. Convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. . . . Thus a defendant who was not misled to his prejudice by any imperfection in the indictment (or accusation or citation) cannot obtain reversal of his conviction on that ground.

Finally, we disagree with Merritt that Mack v. State requires a different result. In Mack, the issue was whether a district attorney had sufficient prior knowledge of other offenses for double jeopardy to attach to those offenses. We held that the fact that the district attorney’s name appeared on the indictment charging the other offenses “conclusively established] his knowledge that [the other] prosecutions . . . for offenses arising from the same conduct were being brought simultaneously.” Mack did not address whether an indictment should be quashed because the wrong district attorney was inadvertently named on that indictment. Thus, Mack is inappo-site and does not require reversal.

3. Finally, Merritt asserts that the trial court erred in denying his plea of former jeopardy. Merritt’s entire argument, however, is devoid of any reference to a plea of former jeopardy. Instead, Merritt argues that the trial court violated his constitutional right to a speedy trial under Barker v. Wingo. Thus, inasmuch as Merritt’s asserted error is unsupported by argument or citation of authority, it is deemed abandoned.

Furthermore, Merritt has not shown that the trial court erred in denying his motion to dismiss the charges because he was denied his constitutional right to a speedy trial. Under Barker, a court must balance four factors to determine whether a defendant’s constitutional right to a speedy trial has been denied:

(1) the length of the delay; (2) the reason for the delay and whether this is attributable to the defendant or the state; (3) the timeliness of the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. With regard to the prejudice factor the Court identified three interests the right to a speedy trial was designed to protect: (i) oppressive pre-trial incarceration; (ii) anxiety and concern of the accused; and (iii) the possibility the defense will be impaired. [The Supreme Court of Georgia] has held that in order to weight the prejudice factor in the defendant’s favor, he or she must offer specific evidence that one or more of these interests apply.

In this case, Merritt asserts that a delay of more than four years between the time his victim knew about the offense and the time of his trial was excessive. In determining whether Merritt was denied a speedy trial, however, we assess the pre-trial delay which followed his arrest or indictment. The record reveals that Merritt was indicted on February 4, 2000, and found guilty by the court based on stipulated facts on May 15, 2001. The record does not disclose the reason for the delay, and there is no indication that Merritt ever demanded a speedy trial.

Decided February 19, 2002

Reconsideration denied April 9, 2002

Brian Steel, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Moreover, Merritt has produced no evidence showing that he was prejudiced by the delay. Merritt was not incarcerated while he awaited trial, and he does not argue that he suffered from anxiety or other concerns while waiting to be tried. Instead, Merritt’s sole contention is that the delay forced him to assert his right against self-

1 incrimination during his deposition in a separate civil action pending against him in another county. We are aware of no authority, nor has Merritt cited any, showing that this incident is relevant in considering whether Merritt’s defense in the criminal case was prejudiced.

In sum, Merritt has established only that approximately 15 months elapsed between the time he was indicted and his trial. Because Merritt did not show the reasons for the delay, that he demanded a speedy trial, or that he suffered any prejudice, the trial court did not err in denying his motion to dismiss the indictment.

Judgment affirmed in part and reversed in part.

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

       The court directed a verdict on the third count of theft by taking.

       See Corsini v. State, 238 Ga. App. 383 (1) (519 SE2d 39) (1999) (stating the standard of review for criminal bench trial).

       Inasmuch as the evidence concerning the third count of theft by taking, which did not result in conviction, is not at issue here, we do not address it in this opinion.

       See OCGA § 17-3-1 (c).

       OCGA § 16-8-2.

       See OCGA § 17-3-2 (2).

       (Citations and punctuation omitted.) State v. Lowman, 198 Ga. App. 8-9 (400 SE2d 373) (1990). See also Tarver v. State, 198 Ga. App. 634, 635 (402 SE2d 365) (1991).

       See Hall v. State, 241 Ga. App. 454, 462 (2) (525 SE2d 759) (1999).

       See Beasley v. State, 244 Ga. App. 836 (536 SE2d 825) (2000) (providing that statute requires actual knowledge).

       See Hall, supra.

       See Lowman, supra at 9-10.

       Inasmuch as Merritt’s conviction for taking Brown’s money is reversed, we consider this assertion only in regard to Johnson’s money.

       210 Ga. App. 843, 846-847 (1) (a) (437 SE2d 844) (1993).

       202 Ga. App. 458-459 (1) (414 SE2d 689) (1992).

       (Citations and punctuation omitted.) Arnold, supra at 847. Accord Bartel, supra.

       (Punctuation omitted.) State v. Forthe, 237 Ga. App. 134, 137 (514 SE2d 890) (1999).

       (Punctuation omitted.) Wade v. State, 223 Ga. App. 222, 224 (477 SE2d 328) (1996). See also Brooks v. State, 207 Ga. App. 477, 478-479 (428 SE2d 357) (1993).

       249 Ga. App. 424 (547 SE2d 697) (2001).

       Id. at 427.

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       See Court of Appeals Rule 27 (c) (2).

       (Footnotes omitted.) Jackson v. State, 272 Ga. 782, 783 (534 SE2d 796) (2000).

        Wooten v. State, 262 Ga. 876, 878 (2) (426 SE2d 852) (1993).

       See Jackson, supra.


author: SMITH, Presiding Judge.

text:
    A01A1787.
    LAWRENCE v. RUSSELL et al.
    (563 SE2d 884)
   SMITH, Presiding Judge.

Marie Lawrence appeals from the trial court’s grant of judgment notwithstanding the verdict to Emerson and Angela Russell on Lawrence’s counterclaim against them for damages in trover, tortious interference with her horse breeding and riding business, and for attorney fees under OCGA § 13-6-11. We conclude that the trial court correctly granted the Russells’ motion for judgment n.o.v., and, although we do not agree completely with the trial court’s reasoning, we affirm.

This is the second appearance of this case in this court, but its history and background also embrace another lawsuit. As recounted in Russell v. Lawrence, 234 Ga. App. 612 (507 SE2d 161) (1998), Lawrence and her aunt, Tommie Jordan, jointly operated a horse farm. Their relationship deteriorated, and Jordan filed suit to evict Lawrence, who counterclaimed for entitlement to certain horses and equipment. A temporary order was entered in that lawsuit giving interim possession of eight horses to Jordan and eight to Lawrence. The order also directed that the horses be maintained in unaltered state unless a change were agreed to in writing. Id. Before this temporary order was entered, Jordan borrowed $10,200 from the Rus-sells and gave ten horses and a tractor as collateral, which were listed on a UCC-1 financing statement filed by the Russells. Id. at 612-613. Several months later, the Russells purchased the horse farm from Jordan for $318,000. Their purchase purported to include “all horses and equipment as described in [the] UCC-1” financing statement. Id. at 613.

The litigation between Lawrence and Jordan ended with five horses being awarded to Jordan and ten horses being awarded to Lawrence. Lawrence executed immediately on that judgment, gaining possession of the horses awarded to her from the Russells. The Russells then instituted this litigation against Lawrence. Although the Russells admitted they knew about the litigation when they purchased the farm, they claimed that Jordan had informed them the suit had been settled and that they had superior title to the horses claimed by Lawrence. They also claimed that Lawrence had trespassed upon their property when she reclaimed her horses. Lawrence counterclaimed, asserting claims in trover and for interfering with her business. In Russell, we affirmed a grant of summary judgment to Lawrence on the Russells’ claim of entitlement to the horses, finding that the judgment entered in the Jordan litigation acted as an estoppel against the Russells. Id. at 614. We also reversed the trial court’s grant of summary judgment to the Russells on Lawrence’s claim for attorney fees under OCGA § 13-6-11, holding that Lawrence’s counterclaim for the loss of use of two horses and interference with her development of a riding and breeding business was a “viable independent counterclaim” and that questions of bad faith, stubborn litigiousness, and causing unnecessary trouble must be decided by the jury. Id. at 615.

The case then returned to the trial court, where a jury trial was held on the Russells’ remaining claims for trespass and attorney fees and Lawrence’s counterclaim for damages and attorney fees. Lawrence’s primary claim for damages was based upon the gelding of one of her stallions before the horses were returned. She also claimed damages for the loss of anticipated profits from the riding stables. At the close of Lawrence’s evidence, the Russells moved for a directed verdict on the counterclaim and Lawrence’s claim for attorney fees and expenses of litigation. The trial court denied the motion “at this point and time” while conceding that the motion “might be right on some of these points.” The jury came back with a verdict awarding the Russells $1 on their claim for damages against Lawrence for trespass and nothing on their claim for attorney fees and litigation expenses. The jury awarded Lawrence $150,000 on her claim for damages and $16,190.30 on her claim for attorney fees and expenses. The Russells moved for judgment n.o.v., and Lawrence opposed it.

The trial court granted the motion, finding that the jury’s award to Lawrence was insupportable under the evidence presented at trial. The trial court first noted that although Lawrence had presented two theories of recovery, trover and damage to her business, the jury’s award was obviously based upon the loss of the future value of one of the horses as a stud, but that no evidence was presented that the Russells had any involvement in the horse’s gelding. The trial court also noted that even if the damages could be construed to be based upon loss of use of the horses for riding rentals or on loss of stud fees for the other horses, Lawrence’s evidence was insufficient for various reasons. The trial court also found the award to Lawrence insupportable based upon the trover claim, because Lawrence presented evidence only of gross figures for business damages, without taking into account her business expenses. As to the award for attorney fees, the trial court found that no award could be made, because in presenting her evidence, Lawrence did not segregate the fees paid to defend the Russells’ action from those expended to prosecute her counterclaim.

1. Lawrence contends that in reversing the jury’s award to her on her counterclaim, the trial court failed to give full force and effect to the ruling of this court in Russell, supra. She apparently bases her contention on the fact that we asserted in our opinion in the earlier appeal that “Lawrence asserted a viable independent counterclaim.” Id. at 615. She argues that this became the law of the case and that the trial court ignored this when it entered judgment n.o.v. We do not agree.

The statement in Russell that Lawrence had asserted a viable independent counterclaim did not suggest that she should prevail on that counterclaim or that proper proof was unnecessary. We simply stated that summary judgment as to Lawrence’s claim for attorney fees was not warranted at that point, because Lawrence had asserted a valid counterclaim.

As pointed out by the trial court, it is apparent the jury’s award of $150,000 to Lawrence was based upon Lawrence’s estimate of the lost anticipated stud value of one particular horse, Rowdy. The award returned by the jury was $150,000. That was the exact figure claimed by Lawrence for the loss of anticipated revenue to the breeding business she hoped to develop because of Rowdy’s gelding. See generally Taylor v. Smith, 159 Ga. App. 797, 799 (1) (285 SE2d 200) (1981) (clear that jury found for plaintiffs under contract because recovery was for amount stipulated in contract). Lawrence estimated that her loss for the anticipated profits of the riding stable from boarding and riding rentals was only $32,400.

“A judgment n.o.v. is properly granted only when there can be but one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion.” Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 646 (522 SE2d 467) (1999). In considering whether to grant judgment n.o.v., the trial court

should not rely upon certain evidence merely because it is not specifically contradicted, while disregarding other relevant evidence which may be equally undisputed. In reviewing the grant of a judgment n.o.v., an appellate court must decide whether all the evidence demanded it, or whether there was some evidence supporting the verdict of the jury. A judgment notwithstanding the verdict is improperly granted in the face of conflicting evidence.

(Citations and punctuation omitted.) Id. at 646-647.

In this case, Lawrence presented no probative evidence that the Russells were responsible for this loss. In fact, Rowdy was gelded on October 3, 1995, when he was in the possession of Jordan, and approximately three months before the Russells bought Jordan’s farm. Lawrence testified only that she believed the Russells were “intimately involved” with Jordan’s farm even before they bought it, but that she really did not know who ordered the gelding. Lawrence testified that she did not know who was responsible for the gelding but she believed nevertheless that the Russells were involved. She testified, however, that if Jordan had Rowdy gelded, Jordan was responsible for the lost stud fees.

Against this evidence, the Russells presented positive evidence that they did not have Rowdy gelded. Emerson Russell confirmed this explanation. Russell denied that he and his wife had anything to do with Rowdy’s gelding. The veterinarian who performed the gelding testified on his deposition, which was introduced into evidence, that the decision to geld Rowdy was Jordan’s and that he did not recognize the Russells or their farm manager and had never had dealings with them. Although the veterinarian bill for the gelding introduced into evidence showed the Russells’ farm as the party billed, that was explained by the deposition testimony of another veterinarian in the practice, which was entered into evidence. He testified that the fee for the gelding was paid when it was performed, but the printout of that bill showing the Russells as the billing party was generated the day before his deposition, and it simply reflected the current name on the account as the party billed. He testified that the name on the account was changed when Jordan informed the vet’s office of the change in November 1996.

It is well established that

[e]ircumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.

(Footnote omitted.) Camp v. Eichelkraut, 246 Ga. App. 275, 282 (539 SE2d 588) (2000). The circumstantial evidence showing that the Rus-sells had some business dealings with Jordan before the sale of the farm and horses does not demand the conclusion that the Russells participated in the decision to geld Rowdy. It therefore amounts only to an inconclusive inference, which cannot overcome the direct evidence that the decision to geld Rowdy was made by Jordan alone and that the Russells had nothing to do with that decision. The award for the damage to Rowdy’s future value as a stud horse is therefore completely unsupported, and the trial court did not err in granting the Russells’ motion for judgment n.o.v. on this issue.

2. Because it is apparent that the jury’s award of $150,000 to Lawrence was for the damage to the future value of Rowdy as a stud horse, the trial court’s recitation in its order of other bases for its grant of the Russells’ motion for judgment n.o.v. is immaterial. We note, however, that we do not decide whether the trial court correctly ruled that Lawrence could not recover in trover because her proof of loss of future profits was insufficient, being based upon gross, rather than net, figures. In support of its conclusion, the trial court cited Adams Refrigerated Express v. Ingol, 176 Ga. App. 457 (336 SE2d 289) (1985). We held in Ingol that when

property or equipment acquires a particular capability of producing income because of a specific use, arguably its hire value could be measured by its income production. However, we conclude that in a trover action concerning revenue-generating, non-unique personalty, where the plaintiff elects to seek return of the property and its hire, hire value must be the reasonable rental value of the property, and not its capability for revenue generation.

Decided March 26, 2002

Reconsideration denied April 10, 2002.

David T. Blackburn, for appellant.

Renzo S. Wiggins, for appellees.

Id. at 459 (1). We find nothing in Ingol suggesting that a net figure must be used. Moreover, in this case, after the decision in Russell, the horses were in Lawrence’s possession, and therefore this principle is not applicable.

[I]n an action for conversion, the measure of damages as set forth in OCGA § 44-12-152 applies only when the property continues to be “unlawfully detained.” When a party elects to sue for damages for conversion and the property has been returned before trial, as here, the damages are limited to recovery for the diminution in value of the property only for the time period between the alleged conversion and the property’s return.

(Citations and punctuation omitted.) Lamb v. Salvage Disposal Co., 244 Ga. App. 193, 196 (535 SE2d 258) (2000) (physical precedent only).

3. Lawrence contends the trial court also failed to give full force and effect to the ruling of this court in Russell, supra, on the issue of her right to recover attorney fees. Again, Lawrence appears to rely on this court’s statement in Russell that Lawrence was “not foreclosed from recovering” attorney fees and expenses of litigation because she had asserted a “viable independent counterclaim.” Id. at 615. Again, however, that statement ruled only that Lawrence had a right to recover attorney fees; it did not dispense with the need for her to prove such a claim in proper fashion.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Phipps, Judge. Smith, Presiding Judge,

text:
    A01A2139.
    BOSSARD v. ATLANTA NEIGHBORHOOD DEVELOPMENT PARTNERSHIP, INC. et al.
    (564 SE2d 31)
   Phipps, Judge.

Kenneth Bossard received an electrical shock while installing gutters on an apartment building. He sued the building’s owner and manager, as well as the general contractor overseeing the work, for personal injuries. The trial court granted summary judgment to the defendants on the grounds that Bossard’s own negligence was the sole proximate cause of his injuries and that his knowledge of any hazardous condition was at least equal to that of the defendants. Because these are questions for the trier of fact, we reverse the grant of summary judgment to the building’s owner and manager. However, we affirm summary judgment in favor of the general contractor because it is immune from tort liability under the Workers’ Compensation Act.

Atlanta Neighborhood Development Partnership, Inc. (ANDP) owns Sylvan Circle Apartments in Atlanta, and Camelot Management manages the complex. ANDP hired general contractor R. S. Michael & Company to perform a number of renovations at the complex. R. S. Michael subcontracted with Bossard’s employer, Quality Insulation, to install seamless metal gutters on the buildings.

On the morning of April 24, 1997, Bossard and his co-worker Barry Cantrell were hanging gutters on Building 2129 at the complex. Using an aluminum ladder, Cantrell carried one end of a 58-foot section of gutter to the roof of the building. Bossard followed, holding the other end of the gutter. As Bossard climbed the ladder, the gutter hit a power line, causing “popping and arcing.” Bossard fell off the ladder and was severely injured. He has no memory of the incident.

Bossard sued ANDP, Camelot, and R. S. Michael, alleging that they were negligent in failing to warn him of the proximity of the live power line or to have the electrical current disconnected during construction activities. The defendants moved for summary judgment, arguing that Bossard’s own negligence caused the electrical shock and fall, that he had equal knowledge of the open and obvious power line, and that he had assumed the risk of injury. The trial court granted summary judgment on the first two grounds, but rejected defendants’ argument as to assumption of the risk.

1. As an initial matter, Bossard challenges the trial court’s ruling striking portions of his expert witness’s affidavit “which state or rely on the assumption that the overhead line [that injured Bossard] was uninsulated.” We agree with Bossard that this ruling was error.

An expert witness affidavit opposing a motion for summary judgment must be based either on personal knowledge or on clearly identified documents already in the record. Bossard’s expert, Paul Pritzker, assumed throughout his affidavit that the power line that shocked Bossard was not insulated. Defendants claim that this assertion was not based on any evidence in the record. However, Pritzker’s affidavit explained that high voltage overhead lines are not insulated “to take advantage of reduced resistance of conductors to heat in encapsulated insulated conductors compared to ‘free air’ cooling. Insulated conductors would require larger sizes representing a significant increase in utility cost that would have to be paid by ratepayers.” Thus, Pritzker’s assumption regarding the power line in question was based on his personal knowledge that high voltage overhead cables, as a matter of course, are not insulated. As such, the assumption need not be supported by evidence in the record. The trial court abused its discretion in striking portions of Pritzker’s affidavit.

2. “A plaintiff’s contributory negligence bars any recovery whatsoever if his failure to use ordinary care for his own safety is the sole proximate cause of his injuries, even though such negligence concurs with the negligence of the defendant.” Except in “extraordinary cases” where the facts are plain and indisputable, the jury should decide “all questions of negligence, contributory negligence, cause and proximate cause, and whose negligence constituted proximate cause of an injury.”

Defendants argue that Bossard was wholly responsible for his injuries because he knew the power line was there, knew it could injure him, and deliberately tried to avoid it — yet struck it anyway. The extent of Bossard’s awareness of the danger, however, is a disputed issue.

Although Cantrell testified that there were multiple cables near the roof of Building 2129 and that they were visible and not hidden, he could not tell what type of lines they were and did not know if any were live power lines. He testified that he and Bossard wanted to avoid hitting the cables with the gutter because “we didn’t know . . . which one of them may be hot or if any of them is hot.” However, Cantrell also testified that while working alone, he has caused gutters to come in contact with power lines, apparently without incident. As Bossard was ascending the ladder, Cantrell told him to watch out for the lines “because if he hit them,... we would have bent the gutter all to pieces, and I didn’t want that to happen.”

Bossard testified that he knew that touching live power lines could cause electrical shock and that it makes “good sense” to keep a gutter away from a power line. However, he had no memory of discussing with Cantrell the need to avoid the cables near Building 2129. Bossard further testified that he had never worried about power lines before because they had never been in the way while he was working on a gutter. Upon viewing a photograph of the cables near Building 2129, Bossard could not distinguish among them and could not tell which, if any, were insulated. He testified that no one warned him about the power line that shocked him and that he did not ask anyone if the lines near Building 2129 were live or insulated.

The defendants rely on our decisions in Callaway v. Crown Crafts, Southern Orchard Supply v. Boyer, and Leonardson v. Ga. Power Co. In all three cases we held that the plaintiffs (or, in Leonardson, the plaintiff’s decedent) who were injured by contact with high voltage lines could not recover because their own negligence was the sole proximate cause of their injuries. But in all three cases, the evidence indisputably showed that the injured person had a greater appreciation of the nature of the hazard than did Bossard in this case.

In Callaway, the plaintiff was injured when a gutter that he was lowering collapsed and struck an overhead power line. We held that, as a matter of law, the plaintiff had failed to exercise ordinary care for his own safety. The evidence showed that

Callaway had worked around and was keenly aware of the dangers of working around high voltage wires, his boss had discussed with him and his co-workers the dangers of working around this particular wire, and Callaway and his coworker also had discussed this problem before undertaking the removal and lowering of the gutter. . . . Moreover, . . . Callaway and his co-worker independently decided to lower the gutter near the power line when several other means existed for removing the gutter without working near the power line.

In Southern Orchard Supply, a farm laborer lifted a 30-foot irrigation pipe into the air to clean it and was injured when the pipe “came too close” to an overhead high voltage wire. Again, we held that the laborer alone caused his injuries because it was undisputed that he knew high voltage lines ran overhead near where he was working and knew the danger posed by the wires if he approached them too closely. In addition, he acknowledged that he did not look up before lifting the pipe and could have moved the pipe elsewhere to clean it.

Finally, in Leonardson, the employee of a tree service was killed when he climbed a tree for the purpose of removing it and came in contact with a high voltage wire. It was undisputed that the employee saw the wire and knew it was “an uncovered power line.” The record also showed that the employee had worked on previous tree removal jobs where the power company was contacted to deenergize the line or provide other safeguards, but that the power company had not been contacted in this case. Under these facts, we ruled that the employee’s death “was proximately caused by his own actions.”

Thus, in each of the above cases, the injured party knew he was working in close proximity to a live power line and knew the dangers associated with such work. But in this case, the evidence shows only that Bossard knew that there were multiple lines in the area where he was working and that one of them might be a power line. He did not know whether one or more of the lines were, in fact, power lines. Nor did he know, if there was a power line, whether it was energized and whether it was insulated. There is no evidence that Bossard should have been able to make such distinctions based upon visual inspection. Moreover, while the record shows that Bossard had a general knowledge that power lines could be dangerous, there is no evidence that he knew touching the line in this case with a metal gutter could cause electrical shock. Finally, there is no evidence, as there was in two of the three cases above, that Bossard and Cantrell discussed but rejected a safer alternative to raising the gutter in the manner they did.

We find this case more akin to Williams v. Nico Indus. There, a painter standing on a metal ladder while painting the exterior of an apartment building was injured when his extension roller touched or approached a high voltage power line. He sued, among others, the building’s owner and the general contractor responsible for building renovations. The trial court found as a matter of law that the painter was aware of the danger involved in painting a building near high voltage lines. We reversed because there was evidence that “although [the painter] was aware of the danger of getting too close to power lines, at the time the incident occurred he was unaware of power lines in the vicinity where he was painting.” Similarly, in this case, there is evidence that Bossard did not know the lines he was working near were live power lines. As in Williams, whether a reasonable person of ordinary prudence in Bossard’s position should have been aware of the hazard is a question for the jury.

3. Defendants argue, and the trial court ruled, that the power line that injured Bossard was open and obvious and that Bossard’s knowledge of it was at least equal to theirs. An owner or occupier of land owes a duty to invitees to “exercise care to see that the premises are safe.” There is no duty, however, to warn of static conditions which are open and obvious or about which an invitee has or should have equal knowledge. Put another way, an invitee is “under a duty equal to that of the owner to use his sight to discover any defect or dangers. [Cit.]” Where reasonable minds can differ as to whether the condition in question was open and obvious and whether the plaintiff should have discovered it, summary judgment is not appropriate.

Both Bossard and Cantrell testified that they did not know — and there is no evidence that they should have known — what kinds of lines they were working near and whether those lines were energized or insulated. Simply because a cable is visible does not mean that the potential hazard associated with working near it is “open and obvious” as a matter of law. Nor does it mean that someone viewing the cable is deemed to have knowledge of the hazard.

Defendants cite Whirlpool Corp. v. Hurlbut, in which we denied recovery to a tile installer who was burned when the pilot light on a gas stove ignited the mineral spirits and gasoline he was using to remove an adhesive substance from a kitchen floor. Although the installer argued that he did not know the stove was powered by gas, he admittedly knew that there was a stove, that gas stoves use pilot lights, and that he should keep sources of ignition away from combustible substances. Under these circumstances, we held that the installer could not “hide behind his alleged lack of actual knowledge that the kitchen contained a gas stove.”

Because the nature of the static condition in that case — the fact that the stove was gas — was readily apparent upon visual inspection, the tile installer was charged with knowledge of it. But the nature of the condition in this case — the fact that one of the overhead cables was a live, uninsulated power line — was not readily apparent upon visual inspection. Thus, Whirlpool Corp. is not controlling.

Defendants also cite First Pacific Mgmt. Corp. v. O’Brien, in which we wrote that “[o]ne cannot admit knowledge of the presence of a mine field but claim ignorance because he was not aware that a mine was placed at the point he decided to enter it.” This principle, although sound, has no application here because Bossard did not know he was working in the presence of an energized, uninsulated high voltage wire. Thus, he has not admitted knowledge of the presence of any proverbial minefield. Defendants are free, of course, to argue to the trier of fact that Bossard should have assumed he was entering a minefield — that is, assumed all cables within range were live and dangerous power lines. This court, however, cannot make that determination as a matter of law.

4. Defendants argue that Bossard assumed the risk of injury, but we agree with the trial court, for the reasons discussed in Division 2, that the evidence does not establish as a matter of law that Bossard fully appreciated the specific risk he was encountering. Accordingly, defendants are not entitled to summary judgment on this ground.

5. R. S. Michael urges us to affirm the grant of summary judgment in its favor for a reason presented to, but not relied upon by, the trial court — that, as Bossard’s statutory employer, R. S. Michael is immune from tort liability under the exclusive remedy provisions of the Workers’ Compensation Act. Because we affirm a grant of summary judgment if it is right for any reason, we now address this issue.

It is well established that a general contractor is immune from tort liability for on-the-job injuries suffered by an employee of its subcontractor. This is because the general contractor, as the employee’s “statutory employer,” is potentially liable for the injured employee’s workers’ compensation benefits. Immunity applies even if the general contractor never actually paid any workers’ compensation benefits to the employee. Applying this principle, R. S. Michael, the general contractor, is immune from tort liability for the injuries of Bossard, its subcontractor’s employee. The trial court should have granted summary judgment to R. S. Michael on this ground.

Despite the tort immunity afforded to statutory employers under the Workers’ Compensation Act, Bossard argues that R. S. Michael contractually assumed tort liability for his injuries. Bossard points to the contract between R. S. Michael and ANDP, in which R. S. Michael agreed to initiate, maintain, and supervise all safety precautions at the work site and to “provide reasonable protection to prevent damage, injury or loss to . . . [e]mployees on the [w]ork.” R. S. Michael also agreed to indemnify ANDP “against claims, losses and expenses . . . arising out of or resulting from performance of” the work. Essentially, Bossard argues that he is a third-party beneficiary of this contract and that R. S. Michael owed him a duty of care. In Paz v. Marvin M. Black Co., however, we held that a statutory employer’s contractual obligation to another party to maintain a safe workplace does not provide a basis for removing the statutory employer’s tort immunity under workers’ compensation law. Paz is controlling here.

Decided March 14, 2002

Reconsideration denied April 10, 2002

Ford & Barnhart, James L. Ford, Sr., Michael G. Webb, for appellant.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., Barnes, Miller and Mikell, JJ., concur. Pope, P. J., and Smith, P. J., dissent.

Smith, Presiding Judge,

dissenting.

I fully concur in the majority’s affirmance of summary judgment in favor of the general contractor. I must respectfully dissent, however, from the majority’s reversal of the grant of summary judgment to the building’s owner and manager, because I believe the record shows that Bossard’s own negligence was the sole proximate cause of his injuries.

As in Callaway v. Crown Crafts, 223 Ga. App. 297 (477 SE2d 435) (1996); Southern Orchard Supply v. Boyer, 221 Ga. App. 626 (472 SE2d 157) (1996); and Leonardson v. Ga. Power Co., 210 Ga. App. 574 (436 SE2d 690) (1993), cited by the majority, the plaintiff knew he was working in close proximity to overhead wires. In the cited cases, we held that because the plaintiff in each case knew the overhead wires were in the area and was aware of the danger posed by contact with energized wires, the proximate cause of injury in each case was the plaintiff’s own actions in making contact with the wires. I cannot find any meaningful legal distinction between the facts of those cases and the facts before us today.

Neither can I agree with the majority that this case is akin to Williams v. Nico Indus., 157 Ga. App. 814 (278 SE2d 677) (1981), overruled in part on other grounds, Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145) (1983). In Williams, the testimony of both the injured painter and an eyewitness showed that the painter was not aware of any power lines in the vicinity where he was painting. Id. at 815 (1). Here, in contrast, it is undisputed that Bossard was aware of the proximity of the power lines; not only were they fully visible, but he and his co-worker were intentionally trying to avoid them, if for other reasons. In my view, it is “plain and indisputable” that a prudent person working at roof level, aware of overhead power lines and possessing knowledge of the hazards of touching a live wire, may not assume that overhead lines are not energized but must exercise extreme caution to avoid them. I would affirm the trial court’s grant of summary judgment to the building’s owner and manager.

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

Hall, Booth, Smith & Slover, Heather C. McGrotty, Jason P. King, Hawkins & Parnell, Peter R. York, William H. Major III, for appellees.

       Bossard also sued Georgia Power Company, but those claims were dismissed without prejudice and are not at issue here.

        Williams v. Hajosy, 210 Ga. App. 637, 638-639 (436 SE2d 716) (1993).

       (Footnote omitted.) North Ga. Elec. Membership Corp. v. Webb, 246 Ga. App. 316, 319 (2) (540 SE2d 271) (2000).

        Three Notch Elec. Membership Corp. v. Simpson, 208 Ga. App. 227, 229 (1) (430 SE2d 52) (1993).

        Humphreys v. Kipfmiller, 237 Ga. App. 572, 573 (1) (515 SE2d 878) (1999).

       223 Ga. App. 297 (477 SE2d 435) (1996) (physical precedent only).

       221 Ga. App. 626 (472 SE2d 157) (1996).

       210 Ga. App. 574 (436 SE2d 690) (1993).

       223 Ga. App. at 298-299 (2).

       221 Ga. App. at 627.

       210 Ga. App. at 575.

       Id. at 576.

       See Mann v. Hart County Elec. Membership Corp., 180 Ga. App. 340 (349 SE2d 215) (1986) (passenger in sailboat that struck overhead power line had no negligence claim against power company because he and boat’s pilot had been warned about line and knew its general location, yet pilot wanted to try to tilt mast underneath line rather than avoid area); Ga. Power Co. v. Purser, 152 Ga. App. 181, 182 (262 SE2d 473) (1979) (surveyor who was shocked while placing rod between two power lines could not recover because he knew lines were “bare and energized,” knew he might get injured if he touched lines with rod, was “frightened of this possibility,” and said what he was doing “ ‘was a good way to commit suicide’ ”).

       ANDP’s project manager testified that he could not differentiate between electric and nonelectric overhead lines, and Bossard’s expert stated that “[n] on-electrical trades persons employed by various sub-contractors are not presumed” to know that overhead lines are uninsulated.

       Defendants emphasize Cantrell’s testimony that he and Bossard were trying to avoid touching the lines near them even though they did not know what the lines were, either because one of the lines might be “hot” or because contact with any line might bend the gutter. This testimony raises the question of whether any warning by defendants would have changed Bossard’s behavior. We believe, however, that the jury should decide whether Bossard would have acted differently had he been warned specifically that one of the lines near him was an uninsulated power line capable of delivering severe electric shock.

       157 Ga. App. 814 (278 SE2d 677) (1981), overruled in part on other grounds, Malvarez v. Ga. Power Co., 250 Ga. 568 (300 SE2d 145) (1983).

       157 Ga. App. at 815 (1).

        First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 280 (361 SE2d 261) (1987).

        Gray v. Oliver, 242 Ga. App. 533, 534-535 (530 SE2d 241) (2000).

        First Pacific Mgmt., 184 Ga. App. at 280.

        Freyer v. Silver, 234 Ga. App. 243, 247 (3) (507 SE2d 7) (1998).

       Of course, to prevail on Ms negligence claim, Bossard will have to show not only that he did not have knowledge of the hazard, but also that defendants did. See Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). The question of defendants’ knowledge, however, is not before us.

       166 Ga. App. 95, 97-99 (2) (303 SE2d 284) (1983).

       Id. at 98.

       184 Ga. App. at 280.

       Id. at 281.

       See Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 703-704 (289 SE2d 807) (1982). Bossard claims the issue is not ripe for review because he did not have the opportunity to orally argue it before the trial court. But Bossard fully briefed the issue before both the trial court and this court, and he had oral argument before this court. Accordingly, Bossard has had ample opportunity to present his best arguments.

        Warden v. Hoar Constr. Co., 269 Ga. 715, 716 (1) (507 SE2d 428) (1998); Wright Assoc. v. Rieder, 247 Ga. 496, 497-500 (1) (277 SE2d 41) (1981); Holton v. Ga. Power Co., 228 Ga. App. 135, 137 (491 SE2d 207) (1997).

        Warden, 269 Ga. at 716 (1); see OCGA § 34-9-8.

       See Warden, 269 Ga. at 716-717.

       200 Ga. App. 607, 608 (1) (408 SE2d 807) (1991).